The Rule of Good Law: Form, Substance, and Fundamental Rights

The Cambridge Law Journal 2019

33 Pages Posted: 8 May 2022

Date Written: August 8, 2019

Abstract

This paper explores the effect that conformity to the rule of law has on the ends which might legitimately be pursued within a legal system. The neat distinction between formal and substantive conceptions of the rule of law will be challenged: even apparently formal conceptions necessarily affect the content of law and necessarily entail the protection of certain fundamental rights. What remains of the formal/substantive dichotomy is, in fact, a distinction between conceptions of the rule of law which guarantee the substantive justice of each and every law and those which entail some commitment to basic requirements of justice while nevertheless leaving room for unjust laws. Ultimately, the only significant distinction between competing theories of the rule of law concerns the nature of the connection between legality and justice, not whether there is any such connection at all.

Keywords: rule of law, fundamental rights, legal form, legal content

Suggested Citation

Foran, Michael P., The Rule of Good Law: Form, Substance, and Fundamental Rights (August 8, 2019). The Cambridge Law Journal 2019, Available at SSRN: https://ssrn.com/abstract=4086505 or http://dx.doi.org/10.2139/ssrn.4086505

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