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Flashcards in (2) The Substantive Rule of Law Deck (14)
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What is the substantive rule of law?

The substantive rule of law is the broadest interpretation of the concept, it goes beyond the purely procedural considerations of the core and extended rules of law.


What prompted the development of this new broader interpretation of the rule of law?

Some argued that the core and extended rule of law are insufficient as they consider only the procedural aspects of its operation and neglect to address the subject matter.
This, creates issues as it allows for government officials to undertake unjust actions in a manner entirely compliant with the rule of law provided the relevant laws are enacted in the appropriate way – clear and express terms.


What is the converse argument against the need for the broader substantive rule of law?

The alternative position is that by taking into account substantive considerations this interpretation of the rule of law confuses the rule of law with other desirable values within a legal system like social, economic, political and civil rights.


What were the limitations of the purely procedural considerations made by the narrower rule of law concepts?

1. Dicey’s conception of the rule of law emphasised the importance of ‘formal equality’. but failed to consider the substance of the relevant laws Dicey’s theory requires simply that everyone is judged according to the same law – even if that law itself is discriminatory.
2. Dicey’s vision of the rule of law revolved around his preoccupation with the position that the legal system should provide only procedural and corrective justice in cases where the state acted without authorisation to the detriment of the interest of an effected individual.


What effect did the expansion of the welfare state and enumeration of civil and political rights into the UK's domestic legal system by the HRA 1998 have upon the rule of law?

Legal theorists were faced with the issue of adapting the UK’s legal system founded upon a rule of law focusing on procedural fairness (core and extended) to facilitate these efforts to ensure substantive equality of means or opportunities (introduced by the HRA).


What were the responses to the expanding role of government (through the welfare state etc) in liberal democracies?

Some considered these advancements of the government’s role in liberal democracies to be key in expanding the rule of law, other thought it was overburdening the concept to associate it with such substantive goals.


What did Jeffrey Jowell say about the potential for overburdening the concept of the rule of law by incorporating substantive requirements under it?

He argued that while substantive goals or interests like human rights are worthy of protection they should not be subsumed into the rule of law – to do so would be to divorce the concept from ‘any intelligible substance it might have’.


What is the position of the judiciary in regards to the development of a more substantive rule of law?

Some members of the judiciary keen to emphasise the importance of procedural fairness as part of the rule of law. Some judges, in light of Jowell’s concerns, shy away from adopting substantive considerations within the rule of law. They suggest this would greatly extend the role of the judiciary in regards to government decision-making and resource allocation – something many judges feel is beyond their competence.
Judges, therefore, often apply substantive rights only to the extent required to give effect to legislation like the HRA 1998.


How has Baroness Hale advocated a more substantive rule of law?

In her dissenting judgement in the McDonald Case she argued that the disabled claimant should receive a level of care provision adequate to her needs - this was steeped in the idea of substantive equality of treatment.


What did Gustav Radbruch say about the substantive rule of law?

He argued that ‘[t]here are fundamental principles of humanitarian morality which are part of the very concept of … Legality. Laws which transgress these principles for that reason lack legal character and should be denounced as such by judges and lawyers’.
Essentially, the argument here is that there is a substantive requirement that laws (relied upon by public officials) are suitably moral in nature for them to be considered laws at all – humanitarian morality (according to this approach) is so inherent to law and legal authority that the two cannot be distinguished or separated.


How did Dworkin offer support to the views of Radbruch?

Dworkin provided support for the argument advanced by Radbruch saying that a legitimate legal system must contain legal rules who give sufficient respect to human rights.


How did Raz criticise the development of the substantive rule of law?

Raz suggested such a position amounted to a ‘perversion of the concept’ of the rule of law.


Is there any overall consensus as to what the rule of law should be interpreted as?

In short, no, individual approaches by various members of the judiciary will give rise to different approaches in regards to whether the rule of law involves mandatory procedural requirements, desirable procedural processes or a substantively just system.


How significant is the rule of law as principle?

Following its frequent invocation as a constitutional principle from the 1960s onwards it has shaped and influenced the development of the UK Constitution and the heads of judicial review.
The rule of law is a very significant principle within the UK Constitution but it’s scope is by no means constant.