What the rule of law means to me as a law student
One of the knottiest topics which every law student must deal with is the public law concept of ‘the rule of law’. This topic is highly complex, not least because there is no singular, clear definition of what the rule of law actually means. Various philosophers and jurists have offered their own interpretations of the meaning and scope of this obscure but extremely famous phrase. Yet, these interpretations are often at odds with one another. The many ways of thinking about the rule of law can be categorized into two schools of thought: the formal camp and the substantive camp.
The leading proponent of the formal conception of the rule of law is the Israeli philosopher Joseph Raz. According to the formal camp, the rule of law is concerned with procedural rules and formal values. A society which upholds the rule of law is simply a society which obeys the written word of the law, and in which laws are made according to the proper procedure, which is itself governed by law. While this formal conception may seem unobjectionable, it raises some deeply alarming issues. The reason for this is that such an interpretation of the rule of law legitimizes the creation of objectively abominable and unethical laws. For example, a Nazi regime which passes a law stating that all Jews within the country’s jurisdiction must be seized and sent to concentration camps would be acting perfectly consistently with the rule of law. There would be no tension between such an action and the formal version of the rule of law since society would still be abiding by the written word of the law.
On the other hand, the substantive camp argues that the scope of the rule of law extends beyond simply requiring that people should be ruled by and obey the law. The substantive camp posits that the rule of law concept should involve a commitment to upholding certain substantive rights. One prominent exponent of the substantive camp is Tom Bingham, who stated in his book titled ‘The Rule of Law’ that for the rule of law to be observed, adequate protection must be made for fundamental human rights. These fundamental human rights include the right to life, the right to freedom of thought, conscience and religion and the right to a fair trial.
My opinion is that the rule of law is better defined by the substantive camp rather than the formal camp. I take the view that morality guides law, as opposed to the view that law guides morality. On that basis, a society which tramples over fundamental human rights cannot be said to be following the rule of law, because a legal code which does not make adequate protection for fundamental human rights is not proper law. Another reason why the substantive camp is more appealing to me is that I believe in the notion that people, especially those holding public office, should not just be guided by the law but also morally sound values. For example, in the summer of 2020, thousands of young people opened their A level results to find that their grades had been downgraded by an algorithm. Despite the immense anger and furore that followed, the education secretary (the person responsible for devising the algorithm system) retained his job. Even though the education secretary had not broken any laws by devising the algorithm system, he had acted in a way that was morally repugnant and should have been sacked.