Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework

Abstract

The central theme of the article is the distinction between formal and substantive meanings of the rule of law. Formal conceptions of the rule of law do not however seek to pass judgment upon the actual content of the law itself. Dicey's conception of the rule of law is well known and it has been subjected to analysis from all of the diverse directions. Dicey's formulation is concerned primarily with forma] access to the courts, riot with the nature of the rules which individuals will find when they get there. Unger's contention is that this legitimating function performed by the rule of law was always really a sham. It is not fortuitous or surprising that one of the principal advocates of the formal conception of the rule of law, Raz, is also a leading exponent of legal positivism. Trevor Allan also adopts an explicitly substantive conception of the rule of law.

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