The Oxford English Dictionary defined the rule of law as:[2] [T]he apartheid government, its officials and agents were responsible in accordance with the law; The laws were clear; published and stable and have been confirmed by law enforcement officials and judges. What is missing is the material component of the rule of law. The process by which laws were made was not fair (only whites, a minority of the population, had the right to vote). And the laws themselves were not fair. They have institutionalized discrimination, given the executive broad discretionary powers, and failed to protect fundamental rights. Without substantive content, there would be no response to the criticism sometimes voiced that the rule of law is “an empty container into which any law could be poured.” (World Justice Project 2011: 9) The words of Martin Luther King of Birmingham prison remind us that there is a difference between law and justice. The law, while applied uniformly, does not in itself guarantee a fair outcome. The rule of law must promote stability, but a society based on the rule of law must also remain vigilant so that the rule of law also serves the interests of justice. As this quote shows, the continued strength of the rule of law sometimes depends on the willingness of people willing to risk punishment for justice. Others, such as Richard Epstein (2011:10), accept that “the rule of law . a concept distinct from private property.” Nevertheless, they believe that a contingent link can be established between the rule of law and private property by showing that the forms of regulation that concern defenders of private property tend to be forms of regulation that prohibit the rule of law, even with a stricter conception. In this context, the need for clarity is also important.
Laws must be public not only in terms of effective enactment, but also in terms of accessibility. It is true that much modern law is necessarily technical (Weber 1968 [1922]:882-95), and the layman will often need professional advice on what the law requires of him. It is also important for the rule of law that there is a competent profession available to provide such advice, and that the law must be such that it is at least possible for professionals to obtain a reliable picture of what the law requires at any given time. In the nineteenth century, Jeremy Bentham (1782: chap. 15 and 1792) criticized customary law in general, and common law in particular, for failing to meet this requirement: the sources of law were hidden in obscurity and, although there were flimsy appeals to precedents, much of the law was invented only by judges. After all, a good definition of the rule of law, which is almost universally accepted, is an analytical matter. What is the relationship between the rule of law and the rule of law? It can be argued – arguably controversially – that the two need to be brought together (see Waldron 2008 and Simmonds 2008). The concept of law could be understood as encompassing the fundamental elements of legality, although that identification seems all the less plausible the more substantial the concept of the rule of law. For this reason, a system of government does not count as law if it does not have the characteristic forms and processes that we associate with legality. Otherwise, we lose the sense of the institutional specificity of law as a way of governing a society. We have seen above that Lon Fuller (1958 and 1964) envisaged a link in this direction.
The same goes for Ronald Dworkin in his later work. Dworkin (2004) asked us to examine a situation in which judges and lawyers faced difficult questions of interpretation or difficult dilemmas arising from multiple sources of law. He said that in such cases, we could say that what is required by law may be different from what is required for legal reasons. This is a familiar separation (even if Dworkin thought it was narrower and more blurred than most right-wing positivists believed). But he said it would make no sense to say that what is needed as a matter of legality or respect for the rule of law is different from the legal solution in this case. To find the legal solution, we must approach the various legal and policy documents in light of our commitment to legality. The norms of constitutional economy can be used during the annual budget process, and if this budgeting is transparent, the rule of law can benefit. The availability of an effective judicial system that can be used by civil society in situations of inequitable public spending and seizure of funds previously approved by the executive branch is a key element in the success of rule of law efforts.
[88] F.A. Hayek was an economist by training, but he also developed an interest in the relationship between legal structures and economic forms. Hayek`s work on the rule of law took place in two phases: (1) from his war book The Road to Serfdom (1944) to the Constitution of Freedom (Hayek 1960); and (2) the somewhat different narrative of his trilogy Law, Legislation and Liberty (1973), a presentation more in keeping with the spirit of the common law and hostile to the role of legislation. The rule of law comprises a set of principles of a formal and procedural nature that deal with how a community is governed. Formal principles concern the generality, clarity, publicity, stability and foresight of the norms that govern a society. The principles of procedure concern the processes by which these standards are administered and the institutions – such as the courts and an independent judiciary that requires their administration. To some extent, the rule of law also encompasses certain material ideals, such as the presumption of freedom and respect for private property rights. However, these are much more controversial (see section 1 below).
And indeed, as we shall see, there is much controversy about what the rule of law requires. However, the distinction may not be as clear-cut. Even the rule of law seems to imply that rulers accept something like the formal discipline of legality. If the orders issued by the State are not general, clear, forward-looking, public and relatively stable, the State does not govern by law. Thus, this slim version of legality still has moral significance in terms of the human need for clarity and predictability. The rule of law “can be a means for a government … stabilizes and ensures expectations” (Goodpaster 2003: 686). Although its use remains crucial to the needs of the state, it involves what Fuller called a reciprocal link with the purposes of those who are governed: the latter are assured that the proclaimed rules are those used to evaluate their actions (see also Winston 2005: 316).