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THE RULE OF GOOD LAW: FORM, SUBSTANCE AND FUNDAMENTAL RIGHTS

Published online by Cambridge University Press:  08 August 2019

Michael P. Foran
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Abstract

This paper explores the effect that conformity to the rule of law has on the ends which might legitimately be pursued within a legal system. The neat distinction between formal and substantive conceptions of the rule of law will be challenged: even apparently formal conceptions necessarily affect the content of law and necessarily entail the protection of certain fundamental rights. What remains of the formal/substantive dichotomy is, in fact, a distinction between conceptions of the rule of law which guarantee the substantive justice of each and every law and those which entail some commitment to basic requirements of justice while nevertheless leaving room for unjust laws. Ultimately, the only significant distinction between competing theories of the rule of law concerns the nature of the connection between legality and justice, not whether there is any such connection at all.

Keywords

Rule of lawfundamental rightslegal formlegal contentmeansends
Type
Articles
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The Cambridge Law Journal , Volume 78 , Issue 3 , November 2019 , pp. 570 - 595
Copyright
Copyright © Cambridge Law Journal and Contributors 2019 

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Footnotes

*

PhD Candidate, Faculty of Law, University of Cambridge.

I am grateful to Trevor Allan, Matthew Kramer and Lars Vinx for comments on earlier drafts of this paper.

References

1 Allan, T.R.S., “Rule of Law” in Cane, P. and Conaghan, J. (eds.), New Oxford Companion to Law (Oxford 2008), 1037Google Scholar. See also Simmonds, N., Law as a Moral Idea (Oxford 2008)CrossRefGoogle Scholar.

2 See Craig, P., “Formal and Substantive Conceptions of the Rule of Law” (1997) P.L. 467Google Scholar, at 467. See also Young, A.L., “The Rule of Law in the United Kingdom: Formal or Substantive?” (2012) 6 ICL Journal 259CrossRefGoogle Scholar, at 273–76.

3 Kramer, M., “Elements of the Rule of Law” in Kramer, M., Objectivity and the Rule of Law, (Cambridge 2007), 101–86CrossRefGoogle Scholar.

4 Ibid., at p. 468. For an example of a “substantive” conception, see Allan, T.R.S., “Dworkin and Dicey: The Rule of Law as Integrity” (1988) 8 O.J.L.S. 266Google Scholar; Allan, T.R.S., Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford 2001)Google Scholar.

5 See e.g. Evans v Attorney General [2015] UKSC 21, at [52]; R. (Cart) v Upper Tribunal [2011] UKSC 28; R. (Purdy) v Director of Public Prosecutions [2009] UKHL 45; Walumba Lumba v Secretary of State for the Home Department [2011] UKSC 12. See also Young, “Rule of Law”, pp. 262–63; Allan, T.R.S., “Law, Democracy, and Constitutionalism: Reflections on Evans v Attorney General” [2016] C.L.J. 38CrossRefGoogle Scholar.

6 R. v Secretary of State ex parte Pierson [1998] AC 539, 591.

7 Dworkin, R., A Matter of Principle (Oxford 1986), 11–12Google Scholar.

8 Craig, “Formal and Substantive Conceptions”, p. 477.

9 See e.g. Allan's construction of a formal theory to contrast his own; Allan, T.R.S., “The Rule of Law” in Dyzenhaus, D. and Thornburn, M. (eds.), Philosophical Foundations of Constitutional Law (Oxford 2016), 201, 202–03Google Scholar. Here he argues that a formal theory of the rule of law, informed by a “simple, majoritarian conception of democracy” would mean that law could have any content, so long as the pertinent rules are consistently and faithfully applied.

10 Fuller, L., The Morality of Law, revised ed. (New Haven 1969)Google Scholar.

11 Ibid., at ch. 2.

12 Ibid., at pp. 4, 42–43.

13 Hart, H.L.A., Essays in Jurisprudence and Philosophy (Oxford 1983), 351CrossRefGoogle Scholar.

14 Fuller, L., “Means and Ends” in Winston, K. (ed.), The Principles of Social Order: Selected Essays of Lon L. Fuller (Oxford 2001)Google Scholar.

15 Rundle, K., “Gardner on Fuller: A Response to ‘The Supposed Formality of the Rule of Law’” (2015) 6 Jurisprudence 580CrossRefGoogle Scholar, at 582.

16 Gardner, J., “The Supposed Formality of the Rule of Law” in Gardner, J., Law as a Leap of Faith: Essays on Law in General, (Oxford 2012), 195–220CrossRefGoogle Scholar.

17 Dicey, A.V., An Introduction to the Study of the Law of the Constitution, Allison, J. (ed.) (Oxford 2013)Google Scholar.

18 Ibid., at p. 119.

19 Ibid.

20 Allan, T.R.S., The Sovereignty of Law: Freedom, Constitution, and Common Law (Oxford 2013), 90CrossRefGoogle Scholar. See also Bingham, T., The Rule of Law (London 2010), 8Google Scholar: “The core of the existing principle is … that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made.”

21 Dicey, Law of the Constitution, p. 100.

22 Ibid. See also M v Home Office [1994] 1 A.C. 377, 395.

23 For example, Kramer argues that Fuller's conception of the rule of law sets out the existence conditions of a legal system such that a political system which does not adhere to these requirements to some degree cannot be classed as a legal one. Kramer, “Elements of the Rule of Law”, pp. 103–09.

24 Allan, T.R.S., Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Oxford 1993), 21Google Scholar. Note that Allan himself does argue that true legal rules are, in fact, true moral rules. See Allan, T.R.S., “Principle, Practice, and Precedent: Vindicating Justice, According to Law” [2018] C.L.J. 269CrossRefGoogle Scholar. At one stage in his career, Dworkin likely also thought this; Dworkin, A Matter of Principle, pp. 9–32. However, the Dworkin of Law's Empire distinguished between law (integrity) and justice, envisaging a potential for conflict between them; Dworkin, R., Law's Empire (Harvard University Press, 1986), chs. 6, 7Google Scholar.

25 Craig, “Formal and Substantive Conceptions”, p. 467.

26 Raz, J., “The Law's Own Virtue” (2019) 39 O.J.L.S. 1Google Scholar, at 2. See also Raz, J., “The Rule of Law and Its Virtue” in Raz, J., The Authority of Law: Essays on Law and Morality (Oxford 2009), 210Google Scholar.

27 Kramer, “Elements of the Rule of Law”, pp. 101–02, 142–44.

28 Waldron also notes that Fuller's conception “does not directly require anything substantive”, and argues that these requirements, far from being procedural are better described as formal and structural in character. J. Waldron, “The Concept and the Rule of Law” (2008) 29 Sibley Lecture Series, at 7. See also J. Waldron, “The Rule of Law”, in E.N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (Fall 2016).

29 Gardner, “Supposed Formality”, p. 199.

30 Ibid.

31 See Hart, H.L.A., “Positivism and the Separation of Law and Morality” (1958) 71 Harv.L.Rev. 593CrossRefGoogle Scholar, at 600–01; Moore, M.S., “Law as a Functional Kind” in George, R.P. (ed.), Natural Law Theory (Oxford 1992), 193Google Scholar.

32 Waldron, “Concept and the Rule of Law”, pp. 7–8; Waldron, “Rule of Law”.

33 Gardner, “Supposed Formality”, p. 201. It seems that Rundle, in her response to Gardner has failed to account for this, even though she argues that the rule of law “does have guidance to give about the qualities of the state of affairs that must be brought into being if the relevant arrangement is to properly be regarded as a ‘legal’ one”. Rundle, “Gardner on Fuller”, p. 581.

34 Rundle, “Gardner on Fuller”, pp. 582–83.

35 Rundle, K., Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller, (Oxford 2012), pp. 8–10, 193–96Google Scholar.

36 See Marshall, G., Constitutional Theory (Oxford 1971), 136–37Google Scholar; Allan, Constitutional Justice, pp. 122–23. Note, however, that Fuller would not consider these requirements to be contained within his generality desideratum; to him, these belonged within the realm of external morality and the doctrine of fairness, not the more foundational requirement that there be a system of general rules. See Fuller, Morality of Law, p. 47.

37 See Allan, Sovereignty of Law, pp. 93–94, 140–41.

38 See Anisminic Ltd v Foreign Compensation Commission [1969] 2 A.C. 147; R. (Cart) [2011] UKSC 28, at [89]; R. (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, at [107]–[112], [160]–[165]. See also Raz, “Rule of Law and Its Virtue”, p. 217.

39 That is, if the rule of law and parliamentary sovereignty can even feasibly come into conflict. See Allan, T.R.S., “Questions of Legality and Legitimacy: Form and Substance in British Constitutionalism” (2011) 9 I.CON 155Google Scholar; Allan, T.R.S., “Constitutional Dialogue and the Justification of Judicial Review” (2003) 23 O.J.L.S. 563Google Scholar; Allan, T.R.S., “The Constitutional Foundations of Judicial Review: Conceptual Conundrum or Interpretative Inquiry” [2002] C.L.J. 87CrossRefGoogle Scholar. Cf. Craig, P., “Constitutional Foundations, the Rule of Law and Supremacy” [2003] P.L. 92Google Scholar.

40 R. (Jackson) v Attorney General [2005] UKHL 54, at [104].

41 Ibid., at para. [107].

42 von Hayek, F.A., The Road to Serfdom (London 1944), 54Google Scholar.

43 Craig, “Formal and Substantive Conceptions”, p. 467.

44 See Fuller, Morality of Law, p. 168.

45 Gardner, “Supposed Formality”, p. 204.

46 Dicey, Law of the Constitution, pp. 111, 125–28, 130–33, 245. See also Bingham, Rule of Law, pp. 13–14. It is worth reiterating that Gardner is wrong to suggest that Fuller conceived of the generality requirement as entailing a right against Bills of Attainder: see note 45 above. However, this does not undermine the general point that many of the other desiderata do entail respect for the rights of legal subjects not to be subject to retroactive or contradictory laws and so on.

47 See e.g. Raz, “Rule of Law and Its Virtue”, pp. 216–18.

48 von Hayek, Road to Serfdom, p. 54.

49 R (Jackson) [2005] UKHL 54, at [107].

50 Craig, “Formal and Substantive Conceptions”, p. 470.

51 Often the term “fundamental rights” evokes a particular list of rights. Some of these rights, for example a right to be free from a Bill of Attainder or a right to be subject only to published laws, evidently arise from particular conceptions of the rule of law. However, others do not appear to be entailed by, for example, Fuller's theory. This paper only references fundamental rights which are entailed by particular conceptions of the rule of law, specifically those which have traditionally been described as formal.

52 See Craig, “Formal and Substantive Conceptions”, p. 485. Here Craig references “procedure or form as opposed to substance” which is in line with a recurring trend of assuming that form and procedure are synonymous in this context. In contrast, Waldron draws a distinction between form and procedure, associating Fuller's conception with the former and Dicey's conception with the latter while maintaining that both are distinct from substantive conceptions; Waldron, “Concept and the Rule of Law”, pp. 7–9. See also Kramer, M., “Scrupulousness without Scruples: A Critique of Lon Fuller and His Defenders” in Kramer, M., In Defence of Legal Positivism: Law without Trimmings, (Oxford 1999), 37Google Scholar.

53 Gardner, “Supposed Formality”, pp. 201–02.

54 See Kramer, In Defence of Legal Positivism, pp. 21–28; Waldron, “Concept and the Rule of Law”, pp. 7–9; Waldron, J., “The Rule of Law and the Importance of Procedure” (2011) 50 Nomos 3Google Scholar.

55 Gardner, “Supposed Formality”, pp. 201–03.

56 Ibid., at p. 202.

57 Fuller, Morality of Law, p. 81.

58 Ibid., at pp. 81–91.

59 L. Fuller, “The Forms and Limits of Adjudication” in Winston, The Principles of Social Order, pp. 101, 113–14.

60 Ibid., at p. 109.

61 Ibid., at pp. 111–12.

62 Bingham, Rule of Law, p. 90. This is particularly true within criminal law where it is “axiomatic that a person charged with having committed a criminal offence should receive a fair trial”; R. v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 A.C. 42, 68, repeated in Attorney General's Reference (No. 2 of 2001) [2003] UKHL 68, [2004] 2 A.C. 72, at para. [13].

63 Brown v Stott [2003] 1 A.C. 681, 719.

64 Dicey, Law of the Constitution, pp. 225–26. See also Allan, Sovereignty of Law, pp. 19, 93–94, 140–41, 185.

65 See e.g. Rundle, “Gardner on Fuller”; Rundle, Forms Liberate, ch. 2; Simmonds, Law as a Moral Idea.

66 See Hart, H.L.A., “Book Review – The Morality of Law” (1965) 78 Harv.L.Rev. 1281CrossRefGoogle Scholar; Hart, H.L.A., The Concept of Law, 2nd ed. (Oxford 1994), 206–07Google Scholar; Raz, “Rule of Law and Its Virtue”, p. 224; J. Raz, “Formalism and the Rule of Law” in George, Natural Law Theory, pp. 309–40; Kramer, “Scrupulousness without Scruples”; Kramer, “Elements of the Rule of Law”; Shapiro, S.J., Legality (Cambridge, MA 2011), 35, 392–400CrossRefGoogle Scholar.

67 Rundle, “Gardner on Fuller”, p. 582.

68 See Dworkin, A Matter of Principle; Allan, T.R.S., “The Rule of Law as the Rule of Reason: Consent and Constitutionalism” (1999) 115 L.Q.R 221Google Scholar; Allan, Constitutional Justice; Allan, Sovereignty of Law; Allan, “Dworkin and Dicey”; Allan, Law, Liberty, and Justice.

69 Gardner, “Supposed Formality”, pp. 205–10.

70 See Fuller, L., “American Legal Philosophy at Mid-century: A Review of Edwin W Patterson's Jurisprudence, Men and Ideas of the Law” (1954) 6 J.Leg.Ed. 457Google Scholar; Fuller, “Means and Ends”; Rundle, Forms Liberate, ch. 2.

71 Fuller, “Means and Ends”, p. 64.

72 Ibid., at p. 64.

73 Ibid., at p. 65.

74 Ibid.

75 Ibid., at p. 66.

76 See e.g. Allan, Constitutional Justice.

77 Rundle, “Gardner on Fuller”, p. 583; Rundle, Forms Liberate, chs. 2, 3.

78 Gardner, “Supposed Formality”, p. 211.

79 Ibid., at p. 211.

80 Ibid., at p. 208.

81 Indeed, it may be the case that Hart and Raz also rejected an instrumentalist account of the value of the rule of law. See Bennett, M.J., “Hart and Raz on the Non-instrumental Moral Value of the Rule of Law: A Reconsideration” (2011) 30 L.& Phil. 603CrossRefGoogle Scholar.

82 Rundle, “Gardner on Fuller”, pp. 583–86.

83 Kramer, M.H., “On the Moral Status of the Rule of Law” [2004] C.L.J. 65CrossRefGoogle Scholar, at 69.

84 It is important to reiterate that retrospective laws may conform to the rule of law in very exceptional circumstances as a remedy for previous breaches of the inner morality of law. See Fuller, Morality of Law, pp. 53–54. I suggest that compliance in this context should not be read to mean simply numerical frequency but to focus on how particular laws respect the status of the legal subject as a rights-bearing moral agent, what Fuller would describe as “the view of man inherent in legal morality”; Fuller, Morality of Law, pp. 162–67.

85 See Gardner, “Supposed Formality”, p. 199.

86 Ibid., at p. 207.

87 Ibid., at p. 211.

88 See N.E. Simmonds, “Evil Regimes and the Rule of Law” in Simmonds, Law as a Moral Idea, p. 69.

89 Fuller, Morality of Law, p. 184.

90 Ibid., at p. 153 emphasis in original.

91 See e.g. Finnis, J., Natural Law and Natural Rights (Oxford 1980)Google Scholar.

92 See Moore, “Law as a Functional Kind”. It should be noted that functionalist jurisprudence need not be natural law jurisprudence; as Moore notes, it is possible that the purpose or function of a legal system is not a moral one. For a recent example of a functionalist project from a legal positivist perspective see Ehrenberg, K.M., The Functions of Law (Oxford 2016)CrossRefGoogle Scholar.

93 Fuller, L., The Law in Quest of Itself (Boston 1940), 10–11Google Scholar.

94 Fuller, Morality of Law, pp. 53, 107, 115, 122, 130, 146, 150, 162.

95 Moore, “Law as a Functional Kind”, pp. 221–22.

96 See Hart, “Book Review – The Morality of Law”; Raz, “Rule of Law and Its Virtue”; Dworkin, R., “Philosophy, Morality, and Law – Observations Prompted by Professor Fuller's Novel Claim” (1965) 113 Pennsylvania L.Rev. 668CrossRefGoogle Scholar; Gavison, R., “Natural Law, Positivism, and the Limits of Jurisprudence: A Modern Round” (1982) 91 Yale L.J. 1250CrossRefGoogle Scholar.

97 Gardner, “Supposed Formality”, pp. 206–07.

98 Fuller, Morality of Law, p. 146.

99 Fuller, “Means and Ends”, p. 63.

100 Ibid., at p. 63.

101 Rundle, Forms Liberate, pp. 35–36, 193–96.

102 Rundle, “Gardner on Fuller”, p. 586.

103 Raz himself acknowledges this point when discussing the nature of instrumentality, noting that “[t]he form of a chair is (in part) that it is used to sit on. You may say, if you like, that it is immanent (internal) to instruments that their form includes an external end”. Raz, “Formalism and the Rule of Law”, p. 314.

104 Craig, “Formal and Substantive Conceptions”, p. 471.

105 Ibid., at p. 487.

106 Dworkin, A Matter of Principle, pp. 11–12.

107 R. v Secretary of State ex parte Pierson [1998] AC 539, 591.

108 See Simmonds, “Evil Regimes”, p. 74.

109 Fuller, Morality of Law, pp. 152–55.

110 Raz, “Rule of Law and Its Virtue”, p. 211.

111 Indeed, even an interpretivist account of the rule of law would not necessarily collapse into an abstract theory of justice. It is arguably a scheme of public justice, an interpretation of legal practice as opposed to some private theory of justice, disconnected from the system of governance that it pertains to. See Allan, “Principle, Practice, and Precedent”.

112 See Simmonds, “Evil Regimes”.

113 Allan, Constitutional Justice, pp. 37–42.

114 This is not to say that Fuller necessarily subscribed to Dworkinian conceptions of integrity, however. See Dworkin, Law's Empire, chs. 6, 7. Although, there may be some interesting parallels to be drawn between Fullerian integrity and Dworkinian integrity.

115 Fuller, Morality of Law, p. 42.