Public Law: The Rule of Law

The Rule of Law is the most elusive yet most important principle of the UK constitution. It is the idea that the state should be governed by law, not by the whim of men. While the doctrine dates back to Magna Carta (1215), its modern definition is dominated by two figures: A.V. Dicey and Lord Bingham. This article provides a comprehensive deep dive into the "Formal" vs "Substantive" conceptions of the rule, Lord Bingham’s eight sub-rules, and the tension between the Rule of Law and Parliamentary Sovereignty.

1. Dicey’s Three Conceptions (1885)

A.V. Dicey identified three components:

1. No person is punishable except for a distinct breach of law: No arbitrary power.
2. Every person is subject to the ordinary law: Legal equality.
3. The constitution is the result of the ordinary law of the land: Rights are found in court cases, not just declarations.

2. Lord Bingham’s Eight Sub-Rules (2007)

In his seminal book The Rule of Law, former Senior Law Lord Tom Bingham refined the doctrine into eight practical requirements:

• The law must be accessible, clear, and predictable.
• Questions of legal right and liability should be decided by law, not discretion.
• The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
• The law must afford adequate protection of fundamental human rights.
• Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes.
• Ministers and public officers must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers.
• The adjudicative procedures provided by the state should be fair.
• The state must comply with its obligations in international law.

3. Formal vs Substantive Conceptions

The "Formal" (or "Thin") view, championed by Joseph Raz, argues that the Rule of Law is merely about the clarity and predictability of laws. A state could have perfectly clear, predictable, but morally evil laws and still satisfy the "Formal" rule. The "Substantive" (or "Thick") view, championed by Lord Bingham and Ronald Dworkin, argues that the Rule of Law must also include protection for Human Rights and Democracy.

4. Key Cases — Detailed Analysis

5. Critical Analysis & Academic Debate

The primary debate is the conflict between the Rule of Law and Parliamentary Sovereignty. If Parliament passes a law that is clear but violates human rights (e.g. "All blue-eyed people shall be imprisoned"), which principle prevails? Most scholars argue that under the "Political Fact" of the UK constitution, Sovereignty wins. However, judges like Lord Hope in Jackson have suggested that the Rule of Law is the "ultimate controlling factor" upon which the constitution is based, hinting that the courts might one day strike down an Act that destroys the Rule of Law.

6. Worked Example — Problem Scenario

ISSUE: Does this violate the Rule of Law?

RULE: Lord Bingham’s 7th sub-rule (Fair Adjudicative Procedures).

APPLICATION: A fair trial requires that a party knows the case against them (Audi Alteram Partem). "Secret evidence" prevents this.

CONCLUSION: This bill violates a core substantive principle of the Rule of Law. While Parliament could technically pass it, the courts would interpret it as narrowly as possible to protect the right to a fair trial.

7. Examiner Insights — How to Score Top Marks

Conclusion

The Rule of Law is not a static rule but a "constitutional aspiration." It is the constant effort to ensure that power is exercised through reason and law, rather than through force and arbitrariness. For the law student, it is the fundamental standard by which all other laws must be judged.