From Form and Procedure to Substance in the Rule of Law

Abstract

There is an enduring controversy about whether the rule of law should be taken to include substantive values as well as formal and procedural principles. This paper--prepared originally for a conference celebrating Gerald Postema's book, LAW'S RULE explores various issues in that controversy. Prominent among them is the difficult in determining which substantive values are to be included if any are; and why. Conservative may argue for a rule of law comprising market and property values. Liberals may argue for a rule of law comprising human rights. It is not clear how this is to be resolved. There is also a danger that the inclusion of substantive values may crowd out or detract altogether from the importance of formal and procedural values even if the formal and procedural conception is incomplete. This danger is illustrated by recent conceptions of the rule of law put forward by the World Justice Project.

Keywords: human rights, Postema, procedure, rule of law, substantive, thin versus thick conceptions, World Justice Project