1. What are the key components of the formal theory of the rule of law?
- Remember that the rule of law is open to different interpretations but many theorists agree on a core set of principles that ought to be present before it may be claimed that a state is based on the rule of law.
- Theorists disagree on what is required for a state to abide by the rule of law. Recall the difference between the ‘formal’ and ‘substantive’ schools.
- When thinking about the key components of the formal school, it might help to remember that it is sometimes referred to as the ‘procedural’ school or 'thin' theory. What sorts of procedural elements can you remember as being important to the rule of law?
- For example, what might the formal school say about how law should be made or what form law should take? For a reminder of the key components of the formal theory see p. 75.
- Can you remember what Raz or Fuller said about the rule of law? Each came up with eight principles that should be met for legal systems to function according to the law. See p. 87 if you have forgotten these. Do you understand why these are ‘formal’ or ‘procedural’ rather than ‘substantive’?
2. What are the key components of the substantive theory of the rule of law?
- You might remember that the substantive school is sometimes referred to as the ‘augmented’ or ‘thick’ theory.
- Assuming that all the proper procedure has been followed to enact law and that the law is applied equally to all (similar to the formal school), substantive rule of law theorist argue that the content or substance of the law must also meet certain conditions.
- The substantive theory of the rule of law is therefore concerned with what kind of laws are made, rather than just how they are made or how they look. For example, some substantive rule of law theorists argue that law should be moral or promote a common good. Can you think of another condition that some substantive rule of law theorists say is important? For example, what was Lord Bingham’s fourth sub-rule? See the quote at p. 89.
3. To what extent are the two rule-of-law schools similar and different, and to what extent do you agree with each of the two schools?
- What components of the rule of law do the formal and substantive schools seem to agree on?
- One school could be said to build upon the other. Does the formal school build on the substantive school or does the substantive school build on the formal school?
- What components of the rule of law does the substantive school require that the formal school does not?
- The summary points on pp. 75–76 and pp. 90–91 should help if you get stuck.
- Do you agree with one school more than another? There is no correct answer but try to articulate why you think that is.
4. What is the purpose of the rule of law, and what indicators would you look for to determine the extent to which a country respects the rule of law?
- Think back to the start of this chapter, where it was written that the rule of law explains the legitimacy of law.
- If the law is applied equally to all, regardless of their status, would you expect the legal system to focus on the actions of ordinary citizens or would you expect it to be possible to examine the legality of actions taken by the government?
- Would you be surprised if a person who has not broken a law were to be punished by the state? Even if a person is said to have broken the law, would you expect them to be punished without a trial?
5. To what extent do you believe that the rule of law is present in the UK constitution? What evidence do you have for your answer?
- Remind yourself of the purpose of the rule of law, as well as the formal and substantive schools.
- Now think about your answers to Question 4 and think about whether the UK operates in the ways that you would expect for a state that respects the rule of law.
- Is UK law clear and stable? Is this the case for all sources of UK law? For instance, how does the common law satisfy these requirements? Look back at the case example of R v Rimmington; R v Goldstein at p. 97.
- Does UK law guarantee that cases are heard by a fair and independent judiciary?
- Is there any evidence that the rule of law in the UK reflects the requirements of the substantive rule of law theorists? Think about how judicial review has developed to consider the proportionality of decisions made in human rights cases. For a refresher, turn to pp. 101–102.
6. What evidence do you have that the rule of law has been strengthened or weakened in the UK over recent years?
- Try to pinpoint changes that have been made in relation to how the law works or how the courts assess the legality of actions under the law.
- For example, can you recall what the process used to be for challenging immigration and asylum decisions and how it was changed? Look back at pp. 95–97 for a case in which these changes were the subject of argument.
- The Legal Aid Sentencing and Punishment of Offenders Act 2012 cut some areas of law out of the scope of the legal aid scheme. Would you say that this strengthened or weakened the rule of law in the UK?
- Does permitting some aspects of criminal trials to be heard behind closed doors strengthen or weaken the rule of law?
- How about the Constitutional Reform Act 2005? What do you know about this legislation and how do you think this affected the rule of law?
- If you are struggling with these examples, read from p. 102 and review the summary points at p. 107.