Joseph Raz, a prominent legal philosopher, has contributed significantly to the concept of the Rule of Law with a distinct and influential perspective. In his work, especially noted in The Rule of Law and its Virtue (1977), Raz articulates several principles that underlie his understanding of the Rule of Law. These principles focus on the nature, purpose, and functions of law within a society, emphasising how laws should be structured and applied.
Principle 1: All laws should be prospective, open, and clear
Raz insists that laws must be prospective, not retroactive. This means that laws should apply to actions that occur after the laws have been enacted, giving people the ability to plan their actions according to the legal requirements. Laws must also be clear and understandable, allowing citizens to be aware of what is expected of them without undue complexity. Additionally, laws should be publicised, ensuring that they are accessible to everyone who is expected to follow them.
Principle 2: Laws should not be subject to constant change
For a legal system to effectively guide behaviour, laws must be stable. Frequent changes can disrupt people's ability to form long-term plans and undermine trust in legal institutions. Stability supports predictability, allowing individuals and businesses to plan their affairs with reasonable confidence in knowing the legal framework within which they operate.
Principle 3: General and clear rules should be applied to the creation of laws
This principle demands transparency and consistency in the legal process. Laws should be made according to established rules that are known and accessible to the public. The application of these rules should be predictable and impartial, allowing for equal treatment under the law and preventing arbitrariness in legal decision-making.
Principle 4: The independence of the judiciary must be guaranteed
The independence of the judiciary is critical to Raz’s conception of the Rule of Law. An independent judiciary ensures that laws are applied impartially and that judges are free from political pressures or influence from other branches of government. This independence is fundamental to ensuring that individual rights are protected, governmental powers are checked, and laws are applied impartially and fairly.
Principle 5: The principles of natural justice must be observed
Raz argues that adherence to principles of natural justice (or procedural fairness) is essential. Legal processes should involve hearings where all parties have the opportunity to present their case, and the decisions should be made impartially. This includes the right to a fair hearing, the right to be heard by an unbiased tribunal, and the rule that decisions affecting rights or interests should be made based on logically relevant reasons. These principles of natural justice ensure that individuals are treated fairly by the courts and administrative bodies.
Principle 6: The courts should have review powers over decisions
Courts must be empowered to review how laws are implemented to ensure that the administration remains consistent with the law. Courts must also have the power to review the actions of the executive and administrative agencies. This review ensures that these bodies do not exceed their legal authority or violate rights protected by the law. It acts as an essential check on administrative power.
Principle 7: The courts should be easily accessible
No person should be denied access to justice due to procedural complexities or financial constraints. Raz stresses the importance of accessibility to ensure that individuals can use and benefit from the legal system effectively. Access to courts should be straightforward and not hindered by prohibitive costs or procedural barriers. Effective access to legal remedies is crucial for enforcing rights and ensuring that individuals can challenge governmental actions that affect them adversely.
Principle 8: Crime prevention agencies should not have discretion to pervert the law
Raz insists that agencies charged with enforcing the law must exercise their discretion within the boundaries set by the law to prevent abuse of power. While discretion in law enforcement is necessary, Raz argues that this discretion must be limited and guided by clear legal standards to prevent abuse. Unchecked discretion can lead to arbitrary power, which is antithetical to the Rule of Law.
Raz's formulation of the Rule of Law emphasises the procedural aspects of how laws must be crafted, interpreted, and enforced. His principles aim to secure a functional, fair, and predictable legal system that respects individual autonomy and allows people to plan their affairs with reasonable confidence in the legal outcomes. Raz's theories contribute a rigorous philosophical framework to discussions about the Rule of Law, emphasising legal integrity and the avoidance of arbitrary power.
Check out our high-performance law notes for Jurisprudence and Legal Theory now.
