Introduction
The rule of law is a foundational concept in public law, frequently heralded as a cornerstone of democratic governance and a safeguard against arbitrary power. However, as Elliott and Thomas (2024) astutely observe, while there is broad consensus on its value, there exists significant disagreement about its precise meaning and application. This essay explores this paradox by examining key theoretical perspectives on the rule of law, alongside illustrative case law from the UK context. It argues that the rule of law’s inherent ambiguity stems from its dual nature as both a formal and substantive concept, shaped by competing interpretations and evolving societal values. The discussion will first outline the theoretical frameworks proposed by scholars such as Dicey and Raz, before critically analysing how judicial decisions reflect and sometimes exacerbate these definitional tensions. Ultimately, this essay seeks to highlight the dynamic and contested nature of the rule of law, underscoring its importance as a guiding principle despite its lack of precise definition.
Theoretical Foundations of the Rule of Law
The rule of law, as a concept, has been subject to varying interpretations, often categorised into formal and substantive approaches. A.V. Dicey, a seminal figure in British constitutional law, provided one of the earliest and most influential articulations of the rule of law in the UK context. Dicey proposed three core elements: the supremacy of regular law over arbitrary power, equality before the law for all individuals, and the protection of individual rights through common law principles (Dicey, 1885). His formalist perspective focuses on procedural fairness and legal certainty, prioritising the mechanisms by which law governs over the content of the law itself. However, Dicey’s formulation has been critiqued for its narrowness, particularly for failing to address substantive issues such as the moral quality of laws or systemic inequalities (Allan, 2001).
In contrast, Joseph Raz offers a more nuanced formalist account, emphasising the importance of clarity, stability, and accessibility in legal rules to ensure that individuals can predict the consequences of their actions (Raz, 1979). Raz argues that the rule of law is primarily a procedural virtue, which does not inherently guarantee just outcomes but enables the legal system to function effectively. While this approach provides a pragmatic framework, it has been challenged by substantive theories that insist the rule of law must incorporate moral or ethical dimensions. Scholars like Lon Fuller argue that law must adhere to certain moral principles, such as fairness and respect for human dignity, to be considered legitimate (Fuller, 1969). These competing views illustrate the fundamental tension at the heart of the rule of law: whether it is a mechanism for order or a vehicle for justice.
The Rule of Law in Judicial Interpretation
The ambiguity of the rule of law becomes particularly evident in judicial decisions, where courts often grapple with balancing formal legal principles against substantive considerations of fairness and rights. A pivotal case in this regard is Entick v Carrington (1765), which is frequently cited as a cornerstone of the rule of law in the UK. In this case, the court ruled that state officials could not act without legal authority, affirming Dicey’s principle that no one is above the law (Entick v Carrington, 1765). Lord Camden’s judgment underscored the importance of legal limits on executive power, establishing a precedent that remains central to contemporary understandings of the rule of law. However, while this case exemplifies the formalist aspect of the concept, it does not address broader substantive concerns, such as whether the law itself is just.
More recent case law reveals how courts have increasingly engaged with substantive interpretations of the rule of law, often in the context of human rights. For instance, in R (Miller) v Secretary of State for Exiting the European Union (2017), the UK Supreme Court ruled that the government could not trigger Article 50 to exit the EU without parliamentary approval (R (Miller) v Secretary of State for Exiting the European Union, 2017). This decision not only reinforced the principle of parliamentary sovereignty but also highlighted a growing judicial willingness to protect democratic processes as an integral part of the rule of law. Arguably, this reflects a shift towards a more substantive understanding, where the rule of law is not merely procedural but linked to broader constitutional values. However, critics might contend that such judicial interventions risk overstepping into political terrain, further complicating the definition of the rule of law.
Challenges and Critiques of the Rule of Law
The divergent interpretations of the rule of law, as seen in both theory and case law, raise significant challenges. One key issue is the potential for the concept to be invoked rhetorically to justify a range of positions, thus diluting its analytical precision. As Elliott and Thomas (2024) suggest, the broad agreement on the rule of law’s desirability masks profound disagreement over its content, leading to its use as a ‘political football’ in debates over issues like judicial independence or executive accountability (Elliott and Thomas, 2024). For example, while some may argue that strict adherence to legal procedure is the essence of the rule of law, others might insist that it must encompass substantive protections against oppression or inequality.
Moreover, the rule of law’s application is often context-dependent, shaped by historical, cultural, and political factors. In the UK, the absence of a codified constitution exacerbates this fluidity, as the rule of law must be inferred from statutes, common law, and constitutional conventions (Allan, 2001). This contrasts with jurisdictions where the rule of law is explicitly enshrined in written constitutions, potentially offering clearer parameters for its interpretation. Indeed, this lack of definitional clarity can be both a strength and a weakness: while it allows the rule of law to adapt to changing circumstances, it also risks rendering it a vague and malleable concept.
Conclusion
In conclusion, the rule of law remains a vital yet elusive concept in public law, as encapsulated by Elliott and Thomas’s observation of its widespread endorsement juxtaposed with deep disagreement over its meaning. This essay has demonstrated that the tension between formal and substantive interpretations, evident in the theories of Dicey, Raz, and Fuller, is mirrored in judicial decisions such as Entick v Carrington and R (Miller). While formalist approaches prioritise legal certainty and procedural fairness, substantive perspectives demand that the law align with moral and democratic values, creating an ongoing debate about the concept’s scope. Furthermore, the rule of law’s flexibility, while enabling adaptation to societal shifts, also poses challenges of clarity and consistency. Ultimately, this ambiguity underscores the rule of law’s dynamic nature, suggesting that its strength lies not in a fixed definition but in its capacity to provoke critical reflection on the relationship between law, power, and justice. As such, while consensus on its precise meaning may remain elusive, the rule of law continues to serve as an essential benchmark for evaluating the legitimacy of governance in the UK and beyond.
References
- Allan, T.R.S. (2001) Constitutional Justice: A Liberal Theory of the Rule of Law. Oxford University Press.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- Elliott, M. and Thomas, R. (2024) Public Law, 5th edn. Oxford University Press.
- Fuller, L.L. (1969) The Morality of Law, revised edn. Yale University Press.
- Raz, J. (1979) The Authority of Law: Essays on Law and Morality. Oxford University Press.
- Entick v Carrington (1765) 19 Howell’s State Trials 1029.
- R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.
