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Formal Theory Of The Rule Of Law

In this essay I will be discussing how the formal theory of the rule of law is an erroneous means of establishing laws within a state. A central theme to addressing this is essay is the distinction between formal and substantive theories of the rule of law. In order to reach my conclusion of the formal theory being proven to be insufficient, one must first appreciate the significant advantages which the substantive theory obtains. However, before doing so, I will briefly mention the importance of the rule of law in society and the requirements it needs to fulfil.

Most people would dispute that the significance of law in society is to obtain justice, however justice is simply a term which is determined subjectively, it relates to an individuals
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This theory is concerned with procedures, it focuses on the way the law is created and applied, proposing that the rule of law is upheld in a situation when good procedures are followed. As Lord Bingham suggested, this theory cannot be regarded as observing the rule of law, as citizens human rights are disregarded if good procedures are followed in the process. Joseph Raz puts forwards his formal theory of the rule of law, stating that; “All laws should be prospective, open and clear”, any vague areas of the law are likely to result in a breach of the law. Laws are also required to be “relatively stable” and to not undergo continual changes which will ultimately result in civilians being unaware of their boundaries and legal limits within the state. Raz also states that “the principles of natural justice must be observed” and that “the courts should have review powers to ensure conformity of the law”, however, the formal theory shows no regard of “natural justice” as it is a theory concerned with the procedures followed and not the content of the law, so therefore there is weakness in Raz’s theory of the rule of law. Therefore the formal theory of the rule of law engenders to unjust situations which may be justified if good procedures are implemented when making the law. Nonetheless, Raz upholds the notion that the substantive theory is inadequate as…show more content…
The UK courts obtain the power to decide whether the governmental authority has acted ‘Ultra Vires’. This ensures they do not act outside limits of their legal power, this includes both formal and substantive grounds. Both proportionality and natural justice are crucial components for judicial review of a case and therefore, formal and substantive elements are required to set out laws. There seems to be no compelling reason that this may not also be the most salient solution for the rule of law, however in my opinion, good procedures are not as rewarding as the laws content when it concerns the publics lives and

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