rule of law a level law essay

What is the Rule of Law?

• by Lawprof Team

Essay Outline

3 conceptions of the rule of law, the bare bones conception.

When investigating what the Rule of Law consists of, Elliot’s tripartite distinction extends the traditional dualist debate between the formal and substantive conceptions one layer further. We thus begin with this extension – a barebone principle of legality. This is related to HLA Hart’s rule of recognition – if something is to be regarded a law, it must follow the appropriate procedure recognized by the legal system and constitution at large. In the context of the UK Parliament, this ordinarily requires approval by both Houses of Parliament, as well as royal assent from the Queen – in the circumstances proscribed under the Parliament Acts 1911/49, the consent of the Lords is not required. There are two things to note at this point. Firstly, this barebone principle of legality is morally neutral – to lend Sir Leslie Stephen’s overused example – the Blue Eyed Babies Genocidal Act 2020 would be valid provided it was enacted in the appropriate institutional context. Yet moral neturality does not strip the concept of normative value – to lend an example, Lord Camden’s famous judicial dicta in Entick v Carrington: “ if it is law, it will be found in our books. If it is not to be found there, it is not law.” This strong statement was accompanied with a declaration that then Secretary of State’s Lord Halifax’s order to search Entick’s home was unlawful. We thus already see normative value in this bare bone conception in preventing unfettered executive discretion – If Lord Halifax wished to conduct such search, he would have to either rely on statute or established precedent with regard to the prerogative.

The Formal Conception and the Prevailing Position in the United Kingdom

Many academics however, argue that the rule of law properly understood requires us to go further – beyond respect for the rule of recognition as one precondition for valid law, the rule of law is thought to impose further requirements. This is where the traditional debate between formal and substantive requirements is located. We speak of the former first. With regards to the formal conception of the Rule of law, there are multiple definitions. The high juristic authority of Joseph Raz is chosen here for its brevity and accuracy, as well as contemporaneous context(in comparison with Dicey). According to Raz, the 3 key requirements that the law must conform to are that laws:

• Should be publicly and clearly stated
• Should not have retroactive effect
• Should be stable

These principles manifest themselves in judicial dicta which provide strong evidence that the UK constitution adheres to such a formal conception. Two cases are particularly helpful in this regard. Firstly, Lord Steyn’s invocation of the rule of law in Anufrijeva , where the entitlement to benefits of an asylum seeker was upheld is particularly instructive in demonstrating the application of legal certainty where it was thought that a constitutional state “must accord to individuals the right to know of a decision before their rights can be adversely affected”, with the Kafka-esque antithesis being described as a state where the rights of individuals could be eroded by “knocks on doors in the early hours”. Secondly, the idea that laws should not be retroactive is illustrated by Pierson , where it was held that the home secretary’s retroactive extension of a prisoner’s sentence from 15 to 20 years detention was unlawful on the basis that “a sentence lawfully passed should not retrospectively be increased”.

Further, Raz speaks of practical institutional arrangements which must be secured in order to conform with these 3 requirements – that people must have access to courts, further, their independence and expertise must be secured in order to allow them resolve disputes objectively in accordance with legal principle. Finally, in terms of the practical institutional requirement of access to courts which Raz argues is important – the Witham case involved the declaration that a substantial increase in fees to be paid to initiate litigation under … was held to be ultra vires as it would inhibit people on low incomes from making legal claims. Similar facts, relating to employment tribunals this time may be found in Unison .

At this point, it is clear that the formal conception provides more exacting conditions on our law as compared to the bare bones principle of legality – as it demands a legal framework that constrains in particular, the discretion of the executive, beyond the fact that laws must be passed through a process compatible with the prevailing rule of recognition. Expressed by Hayek, the normative appeal of the formal conception is clear and justifies its existence – legal certainty should be facilitated in order for individuals to be able to plan their behaviour as an individual autonomous agent. The eager constitutionalist is then confronted with a curious question – in pursuit of a more optimum normative state, why stop at the formal conception? Should further rights form the basis of a more onerous rule of recognition in pursuit of moral and normative truth? This is the controversy over the formal conception, which we now consider.

The Substantive Conception of the Rule of Law

The substantive conception of the rule of law, as well as the controversy surrounding it can be explicated paradoxically, by Raz’s argument against it- Citing a 1959 report of the International Committee of Jurists, who adopted the view that the rule of law encompassed values such as “civil and political rights” as well as “social educational and cultural conditions”, rejecting this view, Raz retorts “If the rule of law is the rule of the good law then to explain its nature is to propound a complete social philosophy”. Unpacking this dissent, we are firstly directed towards what the substantive conception entails – whereas the requirements of the formal conception, as explicated earlier are comparatively modest based on the foundational principle of respect for individual autonomy(as Elliot and Hart argue), the substantive conception claims for it what political constitutionalists such as Griffith would argue are simply contested political claims. Before examining Raz’s dissent, it is worth considering how, if at all, the substantive conception of the rule of law applies in the context of the UK’s constitution. “Law and Democracy” and “The Rule of Law” by the late and eminent Laws LJ and Lord Bingham respectively show the existence of a substantive conception, at least in the mind of judicial actors.

The position in case law is more controversial. While the formal and substantive conceptions are not entirely discrete, and debate abounds about at what point certain foundational principles turn into common political claims, there are two cases which arguably demonstrate the existence of such a conception. In Daly , a government policy was held to be unlawful because it conflicted with the right to attorney privilege. Emphasising that the decision was reached through “orthodox applications of common law principles” as opposed to convention rights, Lords Bingham and Cooke affirmed the view that “some rights [were] inherent and fundamental to democratic civilised society.” and that constitutions responded by recognising rather than creating these prior rights. Similarly, the right to equality was underlined by Re M , where a Minister was held in contempt of court for refusing to comply with a court order to stay his hand from deporting an asylum seeker. To hold otherwise according to Lord Templeman would “establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War”.

Attorney privilege and the right to equality appear to be good to uphold, wherein lies the controversy with the substantive conception? Fundamentally, the argument boils down to the usual concern raised by Griffith and hardline political constitutionalists in general that greater influence on the constitution by the judges will lead to a rise of machiavellian philosopher kings who rule without democratic mandate and cloak their politics in the false neutrality of a substantive conception. Raz thus distinguishes his formal conception as one which is morally neutral. Two points must be raised here, firstly in rebuttal of Raz  And secondly in rebuttal of the political constitutionalist argument against the rule of law.

Raz’s Mistake and a rebuttal against Political Constitutionalism

Firstly, the formal conception cannot be said to be morally neutral – it is premised on the basic respect for the functioning of an individual as an autonomous being. This dispels any illusions of a bright line between formal and substantive forms of the rule of law – individual autonomy is potentially as contestable a right as attorney privilege in Daly , or the equality of individuals in Re M . The real distinction is that the formal conception is reliant on a foundationalist view of justification, where individual autonomy serves as the foundation on which all else rests. On the other hand, the substantive conception is reliant on a non foundationalist view, inasmuch as no single principle is taken to be the foundation on which all else depends; rather each belief mutually supports and is supported by the others, and is in that sense justified.

Secondly, deconstructing Griffith’s argument and using the foundational value of  individual autonomy as an example, it is essentially the view that a lack of consensus precludes the existence of the virtue of individual autonomy from being objectively true, yet this objection doesn’t count snakes, tigers, and polar bears amongst those whose judgments (about the goodness of autonomy) are to be ascertained, but it is about as indiscriminating in its allowing virtually any member of the human species to count. Demonstrably, the volitionary and fetishistic slave may lack an appreciation of individual autonomy, while some might simply lack the capacity to come to a judgement on the matter. But why should the judgments of such individuals deflect those coming from the majority who have a deep capacity and self-evident certainty that individual autonomy is good? Or in fact, equality or attorney privilege for that matter? Few would dissent the normative value of these concepts. Further, our argument here does not simply rest on the support of the majority(which is assumed here admittedly). As Aquinas noted long ago, while certain propositions “are universally self-evident to all .. . [others] are self-evident only to the wise . . . If any propositions of law is self-evident, surely they are in the latter category, and to be adjudged by a class of individuals selected meritocratically from amongst the foremost institutions of legal practice – the judiciary.

Conclusions

The rule of law in our constitution.

No further justification will be given for the preceding arguments: the reader will either be convinced by the analysis, or will believe I am terribly wrong. Conveniently, there is only time to assume the former here. Proceeding on such a charitable assumption, we might draw two conclusions that illuminates the nature of the rule of law in our constitution. Firstly, that the rule of law is an important part of our constitutional arrangements – not only paid lip service to by the Constitutional Reform Act 2015, but also applied through the common law of the court in constitutional cases of recent memory, for what is hoped are obvious normative reasons, largely premised on a respect for the individual as an autonomous functioning being capable of making individual choices, as Hart puts it. This essay has argued for the existence of all 3 progressive forms of the rule of law within our constitutional framework – but it is conceded that only the bare bones and formal conception exist without dispute. The next conclusion addresses a potential unifying conception of a single rule of law.

A Unifying Conception of the Rule of Law

Regarding the debate between formal and substantive conceptions, this commentator controversially argues that there are no clearly demarcated boundaries – the distinction lies within the choice of epistemic justification proffered – Raz prefers a foundational theory, while late eminent jurists such as Sir John Laws and Lord Bingham of Cornhill  for instance would support a non foundational justificatory framework. It is suggested however that we should not further create a false and unnecessary division of a constitutional principle as nebulous as the rule of law on the vagaries of epistemic justification – this is a distinction which outside a highly specialised or philosophical academic setting has little practical importance. Foundational or non foundational, the rule of law simply demands that its constituent principles have some grounds of (surprise) justification. Such justification may exist even though rights are contestable, because it is posited that widespread emotional response and consensus to values such as equality and the value of individual autonomy might serve as grounds of validating the truth of these assertions. It is conceded however, that this is a controversial view.

Allan’s Constitution of Reason

Crucially however, it is not argued that the judiciary employ the Rule of Law as a legal rule to  usurp the power of the state on the grounds of intellectual or moral superiority – instead, this commentator believes that we must recognise that while contestable rights may have objective normative value, the more contestable or “substantive” the right, the greater the probability that this is an area where Parliament has better institutional legitimacy and design to tackle. There is thus a need for the courts to respect the constitutional position of the legislature and draw the boundaries accordingly in enforcing the rule of law. While law students certainly crave for bright lines, the constitution of reason is far more nuanced than we would have hoped.

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Overview - Rule of Law

More than 200 years ago, Alexander Hamilton, James Madison, and John Jay published a series of essays promoting the ratification of the United States Constitution now known as Federalist Papers .  In explaining the need for an independent judiciary, Alexander Hamilton noted in The Federalist # 78 that the federal courts "were designed to be an intermediate body between the people and their legislature" in order to ensure that the people's representatives acted only within the authority given to Congress under the Constitution.

The U.S. Constitution is the nation's fundamental law.  It codifies the core values of the people.  Courts have the responsibility to interpret the Constitution's meaning, as well as the meaning of any laws passed by Congress.  The Federalist # 78 states further that, if any law passed by Congress conflicts with the Constitution, "the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." 

"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power.  It only supposed that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.  They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."

The American democratic system is not always based upon simple majority rule.  There are certain principles that are so important to the nation that the majority has agreed not to interfere in these areas.  For instance, the Bill of Rights was passed because concepts such as freedom of religion, speech, equal treatment, and due process of law were deemed so important that, barring a Constitutional Amendment, not even a majority should be allowed to change them.

Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are:

• Publicly promulgated
• Equally enforced
• Independently adjudicated
• And consistent with international human rights principles.

The courts play an integral role in maintaining the rule of law, particularly when they hear the grievances voiced by minority groups or by those who may hold minority opinions.  Equality before the law is such an essential part of the American system of government that, when a majority, whether acting intentionally or unintentionally, infringes upon the rights of a minority, the Court may see fit to hear both sides of the controversy in court.

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

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11 The Rule of Law and its Virtue

• Published: August 1979
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This chapter examines the argument that there are certain procedural values inseparable from the law which forms its internal morality. It analyses the ideal of the rule of law in the same manner in which F.A. Hayek formulated his ideal of the rule of law and aims to show why some of his conclusions cannot be supported. The chapter begins with the basic idea of the rule of law wherein the doctrine of the rule of law explains that the law must be capable of guiding the behaviour of its subjects. It also discusses some the principles that can be derived from the basic idea of the rule of law. These principles include: all laws should be prospective, open, and clear; laws should be stable; the making of laws should be guided, open, clear, and general rules; the independence of the judiciary must be guaranteed; natural justice must be observed; courts must have reviewing power over some principles; courts should be accessible; and the discretion of crime-preventing agencies should not be allowed to pervert the law. In addition, the chapter discusses the value and essence of the rule of the law and some of the problems and issues concerning conformity to it.

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A-Level Law Revision Notes

Our A-Level Law revision notes are broken down into topics so that you can easily pinpoint areas you want to focus on. Through clear descriptions and diagrams, they clearly explain even the hardest of concepts and you can use them alongside other revision resources to create your own notes.

What is the difference between civil and criminal law?

Explain the different types of judicial precedent., how can i revise for a-level law exams effectively.

Start by creating a comprehensive study schedule that allocates specific time to each subject area, such as contract law, criminal law, and tort law. Use revision guides and textbooks to summarize key principles and cases. Use past exam papers to practice applying legal principles and honing your problem-solving skills. You could also consider forming or joining study groups to discuss and debate legal issues.

How should I approach the essay-based questions in A-Level Law exams to ensure clarity and depth in my responses?

Start your essay with a clear introduction, outlining your argument or thesis. Use IRAC (Issue, Rule, Application, Conclusion) or CREAC (Conclusion, Rule, Explanation, Application, Conclusion) structures to organize your answers, ensuring you address the issue, cite relevant legal rules, apply them to the facts, and conclude with a succinct summary. Refer to key cases and legal principles to support your arguments. Practice essay writing under timed conditions to enhance your time management skills and ensure your responses are concise and focused.

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Focus on understanding the legal reasoning behind landmark cases. Analyze dissenting opinions to grasp different viewpoints. Create case summary cards, outlining the facts, issues, decisions, and reasoning. For statutes, break down complex sections into manageable parts and create flowcharts or diagrams illustrating the elements of offences or legal procedures. Apply these laws to hypothetical scenarios, practicing how to apply statutes to real-world situations. Regularly review and quiz yourself on cases and statutes to reinforce your memory.

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Essay: Rule of Law

If there is no constraint on a ruler’s power, then he can make whatever rules he pleases and not obey the rules he makes. He can also change the rules whenever he wants. If he doesn’t like someone who owns a business, he can make that business illegal, or create a regulation that he knows will bankrupt it. If he doesn’t like what people say about him, he can make criticism of him illegal. He has total power to punish anyone he wants and to exempt his friends from laws that others must obey.

When government officials can make any laws they please—and hold themselves above the law—there is less economic growth, less creativity, and less happiness. Entrepreneurs will not be willing to risk time and money starting businesses. Writers and speakers will restrain their words. Everyone will worry that his freedoms can be destroyed at the whim of a powerful government agent.

A government with unpredictable and arbitrary laws, wrote Madison, “poisons the blessings of liberty itself” (James Madison, Federalist No. 62, 1788).

George Washington is depicted addressing the Constitutional Convention of 1787 in this painting by Junius Brutus Stearns.

The many benefits of freedom we take for granted in the United States—to speak our minds, to gather with whom we please, to practice our religions or refrain from practicing a religion, and to build businesses—are protected because we live under the rule of law. This means that we are governed not by officials who can make any rules they want, but by laws that are difficult to change (and therefore stable), limited in scope, and applied to every citizen—including the people who make them. The rule of law means, as John Adams explained in the Massachusetts Constitution, “a government of laws and not of men.”

Of course, Adams knew that laws are made by someone. His point was that they should be consistent, just, and applied to everyone equally. Instead of having a king pass down edicts, the American Founders established a system in which our elected representatives make laws within the boundaries laid down by the Constitution and designed to serve, as the preamble to the Constitution makes clear, “the general welfare” of society.

United States Supreme Court Building

While kings often made rules designed to tell people what to do, a rule of law is more about crafting clear, simple, fair rules, and giving citizens the maximum possible freedom to decide for themselves how to live their lives. The Founders understood that the pursuit of happiness was a path of discovery, invention, and hard work that cannot be followed when government is constantly telling us what we may or may not do.

The Founders also understood that the rule of law is essential to protecting minority rights. Remember that they feared not just cruel kings, but tyrannical majorities that might be convinced to take away the liberty of people they dislike because of their race or wealth or religion. The rule of law insures that laws are not designed to target certain groups. Even if the majority of voters decided, for example, to make Muslims pay higher taxes, the Constitution (and the principle of the rule of law that it reflects) forbids singling out a minority group in this way.

Not only did the Founders establish a rule of law by limiting the power of government to make laws and guaranteeing that our rights are protected when laws are written, they also insured that laws will be made in the open, according to clear rules.

In Article I, Section 7 of the Constitution, for example, they required that any federal tax law must be written in the House of Representatives, whose short terms of office make them especially accountable to voters.

The Founders also crafted rules designed to slow the production of laws. While modern-day critics sometimes complain that it takes our government too long to act, this is exactly what the Founders had in mind. They feared what would happen if government officials were too quick to respond to temporary passions or could change rules with great speed.

This is the Old Senate Chambers in the United States Capitol. It is now only used for tours and ceremonies.

“It will be of little avail to the people,” Madison argued, “that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood…or undergo such incessant changes, that no man who knows What the law is today, can guess what it will be tomorrow” (James Madison, Federalist No. 62, 1788).

As with every part of the Constitution, the Founders understood that words on paper only have so much power. They knew that ultimately the rule of law depends on people with the courage, self-reliance, and wisdom to make prudent decisions, and who have enough tolerance for others to let them live as they see fit.

Related Content

Rule of Law

The benefits of freedom are safest when officials cannot make arbitrary and unpredictable laws. The rule of law means that laws are stable, limited in scope, and applied to every citizen, including those who make them. Laws must be created in the open, according to clear rules, and must reflect the consent of the governed. Ultimately, the rule of law depends on people with the courage, self-reliance, and wisdom to make prudent decisions, and who have enough tolerance for others to let them live as they see fit.