Return to the Rule of Law – Part 3

This series is intended to explain the rule of law at a basic level to give a clearer view for easier understanding by the public.

It is by no means a complete view which would be academic in nature.

What are the formal and substantive elements of the rule of law?

If I were to go back to using my previous example: Parliament decides, and correctly passes a law to the effect that 95% of your earnings will be taxed – taken by the State – what would be your reaction? I am certain that not many people will agree to bringing home 5% of their earnings.

The scenario above demonstrates both elements of the rule of law; the formal element is the passing of the law, using the correct procedures established. The substantive element of course, is the content of the law, what it says.

I will use another real example. A law is passed:

 

A subject of the state is a person who enjoys the protection of the German Reich and who in consequence has specific obligations toward it.

Do you see any problem with this? This was an actual law passed in Germany prior to World War II. It was ‘legally’ passed by the Reichstag (German authority led by a legally elected Adolf Hitler) at the time.

The content, of course, is questionable, and certainly does not meet some of the requirements of the rule of law as laid out by Prof Raz. Specifically, can anyone say that this particular law is clear? Would a person be able to predict accurately how the State will confirm his citizenship? Can it be challenged in the courts, with a predictable outcome? What if the Reich ‘withdraws its protection’ of a person, is that person still a subject of the State?

The formal element of the rule of law

What I am calling elements were described by Prof Paul Craig as ‘conceptions’. So, you may see references to conceptions on various websites.

A formal element/conception of the rule of law addresses the manner in which the law was promulgated. The formal element looks at whether the law was created in a properly authorised manner, by a properly authorised person/body, whether it is sufficiently clear to guide an individual’s conduct et cetera. Thus, if we go back to Prof Raz’s work, we can see the formal concept on display. The drawback is that the substantive conception/element is missing – once a law is passed properly in the prescribed manner, it is still law, regardless of the content.

We see this in the examples of laws passed by Nazi Germany prior to World War II, South Africa under the apartheid system (it was all legal), modern China, and North Korea et cetera. These are all valid legal/political systems within formal sense of the rule of law, but lack respect for or even acknowledgement of most human rights.

We hope and expect that the content of laws should be morally sound and that rights are protected therein. There is an obvious problem in this formal view, which is: the rule of law is not about the rule of “good” law. Hence the importance of the judiciary being independent in order to bring checks and balances – restraint – to arbitrary exercises of State power. If the judiciary follows the State, anarchy is not far behind – again, look at Nazi Germany, apartheid South Africa, et cetera. In addition to the independence of the judiciary, there must also be integrity of the judicial system itself as well as government accountability to help protect the rights of ordinary people, help settle their disputes and protect them from abuses of power – both private and public.

The 8 principles in the formal view of the rule of law (generality; publicity; prospectivity; intelligibility; consistency; practicability; stability; and congruence) was shared by Dicey, Prof Fuller, and Roberto Unger, among other academics theorising on the rule of law. Their work has contributed immensely to our understanding of the rule of law, pointing out inherent weaknesses in the formal conception. What seems to overcome these weaknesses is the introduction of a substantive element into the rule of law.

The substantive conception of the rule of law

We can look at law as having 2 opposing faces: first, it imposes conditions on the people which they must comply with, and second, it instructs officials of the State in what to do when the law is not complied with.

When stated like this, it is easy to see that law that does not meet the 8 principles with respect to people, may still be lawful with regard to the State. A person not knowing what he is charged with or found guilty of because of a secret trial or suppressed evidence in which the State holds all the cards, gives rise to – well, Guantanamo Bay, for example.

Or as Arthur Chaskalson, former Chief Justice of South Africa, said with respect to law that fails to recognise fundamental human rights:

[T]he apartheid government, its officers and agents were accountable in accordance with the laws; the laws were clear; publicized, and stable, and were upheld by law enforcement officials and judges. What was missing was the substantive component of the rule of law. The process by which the laws were made was not fair (only whites, a minority of the population, had the vote). And the laws themselves were not fair. They institutionalized discrimination, vested broad discretionary powers in the executive, and failed to protect fundamental rights. Without a substantive content there would be no answer to the criticism, sometimes voiced, that the rule of law is “an empty vessel into which any law could be poured”.

The emphasis is mine.

The late Lord Bingham (The Rule of Law, 2010) was acerbic in his observation that:

A state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed.

Lord Bingham, like Profs Raz and Fuller, also argued that there are eight conditions for the rule of law to work:

1.    the law should apply equally to all;

2.    it should not be accessible only to the rich, meaning that disputes should be solved relatively cheaply;

3.    it must be easy to understand;

4.    it must protect fundamental human rights;

5.    it must be speedily enforced;

6.    the right to a fair trial is a cardinal requirement;

7.    public officials should not abuse their powers; and, finally,

8.    States should respect international law.

The fourth condition requires due regard to human rights, especially fundamental rights, which must be observed by the State if it is to fall within the ambit of the rule of law. Of course, the argument against the recognition of rights within the rule of law is that perennial question – which rights ought to be given priority? This is not only a legal question, but also a political one. Political because it is politicians who decides our rights and the conditions which we may access or assert those rights.

There is no question that people feel very strongly about their human rights, the way the State exercises its power through its agents, and indirectly, the rule of law, even if they do not understand the concept completely.

Next: the rule of law in economics.