Okay so this article, written by Mark Elliott, is a 1000 word take on the Rule of Law. Here’s the link to it: M. Elliott – The Rule of Law. In it, Elliott sets out his definition of the principle, and explains what he believes to be the key debates surrounding it.
To condemn something as being “contrary to the Rule of Law” amounts to strong criticism.
Our friend Mr Elliott makes a point of writing how loosely the term is flung left and right, qualifying it as “both uncertain and uncontested”. The author then sets out two key questions to consider: what is the Rule of Law, and what does/should the Rule of Law do.
According to him, it is generally accepted that the Rule of Law is a set of formal requirements as to the general characteristics of law and the legal system. It is premised on the need for respect for human autonomy and dignity; which in turn demands the law to be publicly accessible, intelligible, and applied in a manner predictable and principled by independent courts.
But would it conform to the Rule of Law, given the egregious affront to human dignity implied by unequal treatment?
The first important debate which comes up is whether the Rule of Law should remain purely formal or if it should also be substantive. Formalists, like Raz, believe that a country could conform to the Rule of Law no matter if it explicitly promoted the discrimination of a religion, a nationality, a trait… etc. To use a well-known example, Hitler’s Germany adhered perfectly to the formalists’ conception of the Rule of Law – at least in his rise to power, every bill Hitler passed was done in the proper, lawful way, voted through by Parliament and so on.
If the Rule of Law is the rule of the good law then to explain its nature is to propound a complete social philosophy.
The main argument he alludes to on behalf of the formalists is that it is better to stick to the ‘how’ instead of the ‘what’ as it is morally neutral. As is quoted above, we cannot impose rules on the content of the law based on morality, as there are a multitude of moral theories. To adopt one and impose it to all law would invite controversy and as such the principle itself would be subject to debate. One of the strengths of the formalist view is that everyone agrees on it. The substantive conception builds on it, it adds more.
Elliott dismisses the argument by explaining that the formal conception is not really as morally neutral as it claims to be. The whole point of having a principle such as the Rule of Law, is so that everyone is equal before the law: we all answer to the same rules, have the same punishments. This in turn also means that the law must be prospective, and never retrospective, publicly accessible, and intelligible – all things which the formal conception demands. Elliott thus argues that in fact this shows that the Rule of Law is animated for human dignity and autonomy; and if this is the case then it seems an arbitrary restriction to stop the Rule of Law’s reach at the law’s general characteristics. We can only dream of a world where we all are equal before the law if we can impose restrictions on its content – in a state where there is legislation discriminating against women or Jews or Indians, there is no equality vis a vis the law.
Elliott explains that just like the first, the question of what the Rule of Law does is the subject of much debate. For one, the Rule of Law has the capacity to shape the courts’ interpretation of law, meaning the courts will prefer statutes which conform with the Rule of Law rather than those which do not.
Does it really matter what the outcome of the debate is? Well, as long as we have the Human Rights Act 1998, the need to rely on the Rule of Law is subdued. But these questions become more and more relevant on other fronts – can courts go further than interpretively safeguarding common-law Rule of Law values? So far, there have been no example of courts openly refusing to apply legislation, but there are many examples of them adopting an interpretive approach to the protection of the Rule of Law, which arguably already shades into judicial refusal to apply legislation as enacted. Examples of this are the decision of the House of Lords in Anisminic and Lord Neuberger’s judgement in Evans; and further following the Jackson case they could outright refuse to apply legislation contrary to a Rule of Law value.
All in all, Elliott’s article is more focused on opening up areas of debate for students, and making the reader think about the Rule of Law in different ways rather than giving his own opinions. Obviously, every piece of writing reflects the author in some way, and in this case, it seems to me Elliott is rooting for the substantivists. In any case, this piece is really good to have for an essay, it links the Rule of Law to many other topics in public law and honestly is very quick to read.