4. Rule of Law and Rechtsstaat: Formal and Substantial Perspectives

authority; (2) the individual’s pursuit of happiness is on the same level as individual liberty; and (3) welfare is not a responsibility of the state or the political community.

From the continental law perspective, different concepts are embraced: (1) human rights are created by the constitution (often in the context of international treaties); (2) rights are given by the state or the political authority; and (3) the pursuit of happiness depends on the common welfare and, thus, depends on the policy of the state.

The concept of human rights has two sides. The first is the expectation that the government will fulfil its task by providing social, economic, and cultural rights, and second is the expectation that the government will protect the citizen’s civil rights.

4. Rule of Law and Rechtsstaat: Formal and Substantial Perspectives (a) Formal elements of the concept of the rule of law

One can imagine—depending on which elements are in the description—that there are different concepts of the rule of law, from very strict to rather broad. A more formal approach consists of the following elements. First, in all the legal systems there is the idea that one of the cornerstones of the rule of law is the legality principle—legal basis and legal implementation. By law, the parliament is involved in the process of legislation and the court can, by way of judicial review and ultra vires, check if the legality principle has been followed. Second, there are some more significant elements, such as the powers of the state, the division of those powers, and by whom these powers will be applied. This should be a division of powers and also the balance of powers. More specifically, there should be a balance between the legislative, the executive, and the judicial powers; we will add the role of the fourth power in this context. The third element is the independent position of the judiciary, which not only applies the law, but also the non-written legal principles in addition to the written legal principles. These legal principles are not only the principles of proper administration but also the principles of good administration, which not only restrict the government but can also be focused on broadening the task of the government from a legal perspective. Finally, all the powers, including the fourth power, have to follow the fundamental rights as they are laid down in international treaties and the case law based on these treaties. The developments of these four elements of the rule of law are elaborated in this chapter.

(b) A more continental law perspective of rechtsstaat Rechtsstaat is a concept of the continental European legal thinking originally borrowed from German jurisprudence. It can be translated as ‘state of law’, ‘state of justice’, or ‘state of rights’. It is a constitutional state in which the exercise of governmental power is constrained by the law24 and it is often, as we saw before, tied to the Anglo-American concept of the rule of law. The power of the state is limited in order to protect citizens from the arbitrary exercise of authority. In rechtsstaat, the citizens share legally based civil liberties and can also use the courts.

The concept of the rechtsstaat first appeared in a German book25 and was contrasted with the aristocratic police state. German writers usually place Kant’s theories at the beginning of their accounts of the movement toward the rechtsstaat. 26

24 Schmitt 1996. 25 Von Mohl 1866. 26 Hayek 1960.

The most important principles of the rechtsstaat are as follows.27 First, the state has monopoly over power, meaning the state alone exercises coercion and guarantees the safety of its citizens. There is also separation of powers, with the executive, legislative, and judicative branches of government limiting each other’s power and providing a system of checks and balances. Then, the judiciary and the executive are themselves bound by law, and the legislature is bound by constitutional principles.

Both the legislature and democracy itself are bound by elementary constitutional rights and principles. Transparency of the state’s actions and the requirement of providing justification for all those actions are relevant conditions. There should be a possibility for reviewing against the state’s decisions and acts by independent organs, which will also include an appeal process. In addition, a clear hierarchy of law and the requirement of clarity about the definitiveness of public acts are conditions which have to be fulfilled. The other conditions are the reliability of state actions, the protection of past dispositions made in good faith against later state actions, and the prohibition on retroactive punishment. Finally, there should also be a principle of proportionality regarding state action.

(c) A common law perspective on the rule of law The rule of law is a concept that is notoriously difficult to define. In essence, it means that government must act under the law, and its rationale is to control the exercise of public power and ensure that it is exercised according to the law and within legal limits. In this sense, the rule of law is part of the principle of constitutionalism.28

There are two main interpretations of the rule of law: the procedural or formal conception and the substantive conception.

(d) Procedural or formal conceptions of rule of law In procedural or formal conceptions, this principle is seen as a procedural mechanism which emphasizes the need for rules and procedures to control and limit power. Formal conceptions of the rule of law do not say anything about the content of laws but are merely concerned with passing legislation in the correct manner.

A suitable example would be the UK case of Malone v Met Police Commission. 29 Here, the use of tapped telephone conversation as evidence in criminal proceedings was contested, but because no statute or case law expressly forbade telephone tapping or required a warrant, the conduct was held not to be trespass. However, when the same facts were presented to the European Court of Human Rights (ECtHR), which concerned itself with substantive rule of law, it was held to be a violation of Article 8 (respect of the private life and correspondence). This shows us that when a purely formal rule of law is applied, fundamental rights may be at risk unless they have been protected by legality.

Joseph Raz30 believes that the rule of law is a political ideal which theorizes that individuals should be ruled by the law and the law must be able to guide individuals so that they can plan their life accordingly. His theory contains eight principles: (1) the law should be general, prospective, open, and clear; (2) the law should be relatively stable and not subject to frequent and unnecessary alterations; (3) open, stable, clear,

27 Venice Commission, Report on the rule of law, March 2011, CDL-AD (2011). 28 Giussani, 2008, 60. 29 [1979] Ch 344 (Sir Robert Megarry V-C). 30 Raz 1977, 195.

and general rules should govern the executive’s law-making, meaning that delegated legislation should be enacted in the context of more detailed ground rules laid down in general laws; (4) the independence of the judiciary must be guaranteed; (5) the application of law should accord with the rules of natural justice, which includes the right to a fair hearing and the right to have a decision made free from bias;31 (6) courts should have power of review over law-making and administrative action to ensure compliance; (7) courts should be easily accessible;32 and (8) the discretion of the police, prosecuting authorities, and courts should not be allowed to pervert the law.33

The principles exposed by Raz are also key principles of the ECHR which, by virtue of the Human Rights Act 1998, is now applicable domestically in the United Kingdom. For any interference to be legitimate under the ECHR, it must be ‘in accordance with (or prescribed) by a law’. In Sunday Times v UK, 34 the ECtHR gave consideration to the meaning of the phrase and found that it must meet the following requirements: 1. There must be a legal basis for the restriction, ie there must be a law. This can be either statute or common law (this is the principle of legality). 2. The law must be adequately accessible. This means that an individual must be able to have an indication of the legal rules applicable in any given case. This must be what is adequate in the circumstances. 3. The law must be formulated with sufficient precision to enable citizens to regulate their conduct. This means an individual must be able to foresee, to a degree that is reasonable in the circumstances, the legal consequences of this action. This does not equate to absolute certainty; as excessive rigidity should be avoided. Laws are often couched in vague terms requiring judicial interpretation. One key point is that the rule as articulated by Raz is concerned with whether or not a system is a legal system, not whether we approve the outcomes it produces. The rule of law is not concerned with the content of the law. This of course means that a government could pass laws that are open, clear, and prospective but morally wrong or that interfere with individual rights.35

While adherence to the conceptual rule of law provides no guarantees as to the outcomes a legal system may produce, it works to ensure internal consistency. If the above premises are observed, an individual will be guided by the law and his/her position within society in given circumstances will be guaranteed. This is the value of Raz’s analysis.

(e) Substantive conceptions of the rule of law In other conceptions, one sees the rule of law as having a substantive element to it. In essence, laws passed should conform to the procedural requirements and encapsulate certain fundamental values, such as human rights.

Dworkin incorporates this conception in his concept of human rights. He sees the rule of law as requiring substantive justice stating that ‘it requires, as part of the ideal of law, that the rules in the book capture and enforce moral rights’.36 Also, other authors

31 Dowell 2011. 32 This principle is also enshrined within Art 6 of the ECHR which guarantees the right to a fair trial and access to the Courts. 33 Philips v Eye (1870) LR 6 QB1. 34 Case: 1979–80, 2 EHRR 245, 26 April 1979. 35 Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952. 36 Dworkin 1985, 11–12.

choose a similar line. Those include Sir John Laws,37 Trevor Allan,38 and Lon Fuller. Fuller’s focus was on the morality of law. He believed that for a system to be a legal system, it must have an ‘inner morality’. A government must seek to provide the environment in which each citizen can reach maximum potential in a society that must be free and directed to the good of each of its members. Failure to achieve this would mean that the system has failed to meet the standards of a legal system.39 Jeffrey Jowell also believes the rule of law must have a substantive element. In his opinion, the rule of law is a principle of institutional morality which, he argues, is manifested in the courts’ willingness to strike down executive action if the action is unreasonable, arbitrary, or capricious.40

(f) Summary of formal and substantial conceptions of the rule of law Paul Craig41 summarizes these two conceptions by saying: ‘Formal concepts of the rule of law address the manner in which the law was promulgated, the clarity of the ensuing norm and the temporal dimension of the enacted norm.’ Formal conceptions of the rule of law do not, however, seek to pass judgement upon the actual content of the law itself. This formal conception is concerned with whether the law was a good or bad law, which looks like a contradiction with the previous statement but brings the two lines closer. Those who espouse substantive conceptions accept that the rule of law has the abovementioned formal attributes. However, these people wish to take the doctrine further. Certain substantive rights are said to be based on or derived from the rule of law.

The rule of law is often used in an international context and, as we have seen, it finds expression in the ECHR. The European Union is based on the rule of law. This means that every action taken by the EU is founded on treaties that have been approved voluntarily and democratically by all EU member countries. The Preamble to the Universal Declaration of Human Rights (1948), adopted by the General Assembly of the United Nations, also confirms respect for human rights and the rule of law by saying:

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.

The link between human rights and the rule of law is clear here, which gives the interpretation of the principle a substantive element. One can also see this in the Declaration of Delhi issued by the International Commission of Jurists in 1959, which was criticized by Raz.

The rule of law in the United Kingdom has been closely associated with the work of Dicey42 but in the Anglo-American literature it goes beyond Dicey. Here Dicey’s work is referred to. There, we find three meanings of the rule of law: (1) an individual would only be punished for a distinct breach of the law and there is a predominance of regular law by arbitrary power; (2) equality before the law; (3) the principles of the constitution are the result of the ordinary law decided by the courts, especially concerning the area of national security and discretionary power. Historically, in such cases, the courts

37 Laws 1995 and 1996. 38 Allan 2003. 39 Fuller 1964. 40 Jowell 2007, 5; Cases: R v Secretary of State for Home Department (2004) UKHL 56 and (2005) UKHL 71. 41 Craig 1997. 42 Dicey 1959.