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Why Is There So Much Disagreement About The Meaning Of The Rule Of Law? Illustrate Your Answer With Reference To At Least Two Rule Of Law Theorists.

1886 words - 8 pages

There are several main approaches to defining the rule of law including formal and substantive, and functional conceptions of the rule of law. In this essay I am going to explore the formal and substantive conceptions of the rule of law. The formulistic approach to the rule of law which is to explore the definitions of the rule of law we must look at the existence of certain criteria to test the rule of law and not see whether the law is ?good? or ?bad? (substantive examination of the rule of law goes beyond this). Common criteria to test the rule of law includes: a formally independent and just judiciary; laws that are accessible by the general public; the absence of laws that apply only to particular individuals or classes i.e. equality of laws; the absence of influence of a time before enactment of laws; and provisions for judicial review of government action. There is no definitive list of formal criteria, and different formal definitions may use different standards. What formal definitions have in common is that the "rule of law" is measured by the orthodoxy of the legal system to these explicit standards.The main advantage of a formal definition of the rule of law is that it is clear, and useful after the formal criteria of testing it are chosen. Choosing which standards to include may be controversial, but after the standards are made clear, it is usually not difficult to see the degree to which countries meet or failure to reach the standards. Formal definitions thus avoid more subjective judgments, for example about whether laws are "fair" or "just" and focuses on the implementation of the criteria set out.Formal definitions has one major flaw. The formal view may place too much emphasis on the "law in the books" and not pay sufficient attention to the "law in action." Official rules are not always applied to the actual operation of the legal system. Thus the opportunity cost of a formal definition of the rule of law is accuracy, if we have a formal definition of the rule of law we would lose it?s accuracy as the system becomes rigid and not open to interpretation.One of the approached in defining the rule of law is through the substantive approach where the rule of law is examined in it?s ability to serve ?justice? or ?fairness?. First, determining how "just" a particular legal order is requires a subjective view. Second, defining the rule of law as a ?good? legal system risks making the concept so vague that it?s not very useful. Third, if we imagine a model where there are 2 societies one that had unjust law, or no law at all, and yet achieved substantive justice according to the criteria selected. Another society that had normatively perfect law and legal institutions, but where law was of irrelevance in actual social life i.e. incompatible. Which society has more rule of law from the substantive view? Is it the law that must be good, or the social outcomes has to be ideal? If the former, then don?t all the problems with the formal...

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