Rule of Law Example: Historical and Modern Views

Introduction

The rule of law is one of three important constitutional pillars that form the Constitution. As has an uncodified constitution, the rule of law asserts the supremacy of law and aims to prevent arbitrary use of power as well as to protect citizens' lives and property. It is difficult to define as the difficulty stems from the fact that the rule of law means different things to different people. Different legal theorists contend with different conceptions. Joseph Raz purports a formal conception that looks at the form and enforcement procedure. Lord Bingham sits on the substantive side and argues that the rule of law should go further and consider fundamental rights, whereas Dworkin sits in the middle. This essay will highlight these conceptions in that order and evaluate Raz's statement.

Ancient Origins: Aristotle's Perspective

Modern debate on the rule of law is concerned mostly with theorists such as Raz, Bingham, or Dworkin, but in fact, this principle dates back to Ancient Greece. Aristotle advocated that the laws be elevated even above the loftiest human authority, drawing a portentous warning that when the whim takes the place of written rules, injustice is sure to follow. He points out that a just legal framework made applicable to all alike helps guard against abuses of authority and sustains a stable community life. It was this very reasoning that subsequently illumed the possibility of the very high and mighty being above the law. According to Aristotle, good law is not simply about regulating human behavior. It is about applying reason and virtue to their fullest extent, establishing norms that guide citizens toward the common good.

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Foundations in England

Part of the Rule of Law History brings us England. The early fetter of absolute power was defined in the landmark document the Magna Carta of 1215, meaning even the King had to abide by legal limits. Other documents like the Petition of Right in 1628 and the Bill of Rights in 1689 contributed to the evolving script that would guarantee that not only the monarch but any government functionary would not ride roughshod over the established legal processes. Thus, English legal processes really established the framework in which all persons, regardless of status, would be subject to the same laws, having established a tradition of early due process and limits to arbitrary rule. In this trajectory lies a blueprint for the principles of the modern Constitution, proving how a soundly constituted legal framework can secure limited government from arbitrary rule.

The enduring principles forged through English legal milestones later found fertile ground in the American colonies, where the idea that no individual or government figure should be above the law became a defining tenet of the new republic. From the drafting of the United States Constitution to the adoption of the Bill of Rights, the American legal framework drew heavily on English precedents that emphasized checks on state power and the protection of individual liberties. Over time, this inheritance shaped how courts, legislators, and citizens alike understood the role of an impartial and transparent legal system, as demonstrated by the U.S. Supreme Court's ongoing commitment to reviewing—and at times nullifying—unconstitutional laws. In this way, the rule of law's historical arc continues to guide legal structures far beyond the borders of its English origins, leaving a lasting imprint on modern governance.

The rule of law, although mentioned and recognized in the Constitutional Reform Act 2005, does not have a clear definition and, therefore, has been subjected to proposals of multiple definitions by a multitude of legal theorists who disagree on the content of this constitutional principle. It functions as a measure of good governance, fair creation of laws, and just application of the law. It upholds an independent judiciary and equal access to courts.

Rule of Law Examples

A clear indication of the rule of law in daily life can be seen in how we regulate and follow basic legal obligations.

• For instance, tax obligations illustrate this principle by making everyone equally liable; those who evade taxes undermine the basic tenet of equality before the law.
• In like manner, traffic rules safeguard public safety by setting standards that constrain all drivers regardless of each driver's power or social status.
• Environmental protection laws also emphasize the spirit of the rule of law by creating legal restrictions on pollution and use of resources, thus preventing any group or individual from arbitrarily harming shared ecosystems.

These concrete examples, scattered throughout everyday realities, demonstrate how the rule of law seeks to maintain fairness and predictability in diverse spheres of human activity.

Thailand's Example

Even though numerous developing countries refer to the rule of law in their constitutions, the situation on the ground can be far more tangled. Thailand is one of those examples where political instability and corruption, coupled with recurrent interference from the army, put the foundation of its legal institutions in danger. Once in a while, it is popularly found that a strong group may overshadow the courts or proceed to bypass legal processes, leaving common citizens with the brunt of damages of such a legal suspension or imperfect enforcement. Ever since then, it has often been revealed that laws that appear solid on paper do not protect people unconditionally. At times of flare-ups in tensions, the gap is much more demonstrated between formal promises and practical realities, which suggests that the progress toward building a strong rule of law remains ongoing. This demonstrates how certain structural and cultural factors can hamper genuine legal accountability, no matter how detailed or well-intentioned a constitution might be.

Disasters, health pandemics, or unforeseen security threats can be serious stress tests on the rule of law. Under severe pressure, governments often go to extreme measures, some of them extending a curfew or suspension of certain rights, which can sometimes obscure the ordinary checks on power. While most constitutions or legal systems have provisions for emergency actions, the line between necessary caution and overreach can blur. If leaders push too far in limiting civil liberties or bypassing standard procedures, the whole notion of law as a stable safeguard becomes jeopardized. These scenarios highlight just how vital it is to maintain both a firm legal structure and a commitment to the core values it is meant to protect, even when swift action is required.

Formal and Substantive Conceptions

The formal conceptions propose that law must be specified in the form, applied, and enforced by four central features that cohere and overlap: legality, certainty, equality, and access to justice and rights. Furthermore, it does not look at the content of the law, whether it is good or bad law, but sets important standards and directions. Therefore, it is viewed that if the law was passed in the appropriate process, then it is valid and enforceable. Theorists such as Dicey, Hayek (before his change of heart), or Raz are of such a view. On one side, the formalist conception is deeply entrenched in legal positivism and is ultimately concerned with the law as it is. Conversely, the substantive conception, linked with natural law theory, is concerned with law as it should be.

Joseph Raz's View

To Professor Joseph Raz, the rule of law was a political ideal that a legal system may lack or may possess to a greater or lesser degree. It is not to be confused with human rights of any kind of respect. Therefore, equality, justice, and democracy should be separated from the rule of law. The debate that Raz sparks concerns the core meaning of the concept, which focuses on rules and the correct procedures, staying neutral to the content of the law. If moral qualities were to be considered, then the rule of law would lose its function and independence and would no longer be law but a meaningless social philosophy. The fact that these qualities are perceived to be meaningless establishes Raz's indifference to moral virtues as well as the instrumentality and shallowness of the formal conception, hence why it is also referred to as the thin approach. He further contends that laws can be morally questionable and that a non-democratic legal system based on the denial of human rights, extensive poverty, racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law Raz likens the sharpness of a knife to the rule of law. To Raz, as long as the knife is of good quality, then it does not matter what it is used for, whether it is surgery or murder; he talks about the efficacy of the rule of law in terms of validity and enforceability. He is not concerned with what the law is used for; he is concerned that as long as it is done the correct way, interestingly, it does not matter. Moreover, this approach can create moral issues itself; take the laws of the Nazis as an example; they were fascist and discriminatory. If the rule of law does not concern itself with even democracy, then how can it protect all citizens? Raz is far from concerned about whether the conception allows for tyranny and oppression.

Substantive Conception

The substantive conception proposes that a system of rules is not sufficient to make or govern law; it needs to consider moral qualities. If the law goes against these moral qualities, it cannot be valid or enforceable. In comparison to the formal conception, it is therefore concerned with whether the law is indeed good or bad and focuses on the protection of fundamental rights coupling with those formal theories, not opposing them. Theorists such as Bingham and Fuller are of such understanding. Ultimately, the substantive approach is concerned with what the law ought to be. Relying purely on legal authority is not enough, as law cannot be truly governed without a conscience.

Lord Bingham's Approach

Lord Bingham, in his approach, has tried to loosen the formal theory of the rule of law. He recognizes the importance of the form but goes further to say that there are higher standards that should be applied for the holistic good of citizens. These ideas originate from natural law, which refers to a set of rules that are derived from nature and reason and have an inherent moral content. The rule of law does depend on an unspoken but fundamental bargain between the individual and the state, the governed and the governor, by which both sacrifice a measure of the freedom and power that they would otherwise enjoy. Two points in particular out of the eight that he provides have a greater emphasis on fundamental rights: the law must afford adequate protection of fundamental human rights, and the adjudicative procedures provided by the state should be fair.

Dworkin's Perspective

Legal theorist Ronald Dworkin holds both conceptions to be important and provides a rule book conception as well as a right-based conception. He says there must be a correct process, but it has to be linked to political morality. Citizens have moral rights and duties with respect to one another and political rights against the state as a whole. It insists that these moral and political rights be recognized in positive law so that they may be enforced upon the demand of individual citizens through courts or other judicial institutions. He has parity with Bingham as he also, within his eight principles, provides formal as well as substantive elements.

The formal approach considers the importance of the rule of law and that it is a powerful principle of the Constitution, so powerful that it should not be infringed by moral views, therefore leaving no discretion to the content but rather focusing on the authority of this principle, that it does not matter what the law is, good or bad, but that it does possess this power to be unquestionable. The argument for Nazi law can be perceived in a way that deeply depends on the Constitution and the values that it holds. In a democratic country, it can be easily predicted that laws will naturally hold democratic and moral values; therefore, it does not matter whether the rule of law is only formal conceptually. However, it can be noted that Raz's statement is only of significance when it is viewed from a formal perspective. Although, even when looking through this lens, it appears to be contradictory in its own approach. He states that the key virtue of the rule of law is to protect individual freedom. However, he himself admits that this freedom is limited. His view does not provide any protection from oppressive laws, nor does it express the desire to. It can be said that if the procedure of law-making and its application is correct, then there is no need to consider the outcomes, the effects that it may have on society in terms of morality, or any violation of human rights. If laws are made without democracy, as he states, that it is to be separated from the rule of law, how can they be made fairly? The formal conception ignores the human rights of citizens who make up a constitution; without its people, it would not be what it is today.

Judges, in their role as journeymen judgment-makers, are not free to dismiss the rule of law as meaningless verbiage, the jurisprudential equivalent of motherhood and apple pie, even if they were inclined to do so. They would be bound to construe a statute so that it did not infringe on an existing constitutional principle if it were reasonably possible to do so.

The substantive conception protects human rights regardless of a constitution's democratic nature; therefore, even if a democratic country shifts away from its democratic ideals, individual rights remain protected against deteriorating laws. When there are no substantive components, laws themselves end up not being fair. Lord Bingham stated:

A state that savagely repressed or persecuted sections of its people could not, in my view, be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside were the subject of detailed laws duly enacted and scrupulously observed.

Conclusion

This essay has considered all conceptions of the rule of law, critically analyzing the formal and the substantive approach, favoring the latter. Raz's statement holds value only so far as the formal approach goes. The extension of these ideals through consideration of fundamental human rights proposes a grander picture, an honestly more fair view of the rule of law. If a formal approach can go as far as looking at the process, it makes sense for the principal to go further and consider the outcomes and its position in the Constitution when considering the people of the Constitution.

References

1. Jowell, J. (2019). The rule of law. Oxford University Press EBooks. https://doi.org/10.1093/he/9780198806363.003.0001
2. Mahmod, N. A. (2013). Good governance and the rule of law. Neliti. https://media.neliti.com/media/publications/172014-EN-good-governance-and-the-rule-of-law.pdf
3. Freemania. (2006, December). Freemania Blog. https://viva-freemania.blogspot.com/2006/12/