What Is a Substantive Rule of Law

This emphasis on the value of complexity—how complex laws, especially property laws, provide guarantees by which people can find protection from the intrusive demands of power—has continued to fascinate modern theorists of the rule of law (e.B. Thompson 1975: 258-69). I will call the second conception of the rule of law the `legal concept`. It is more ambitious than the rulebook concept in several ways. It assumes that citizens have moral rights and obligations to each other and political rights to the state as a whole. It insists that these moral and political rights be recognized in positive law so that they can be applied at the request of individual citizens by courts or other judicial institutions of the known type, to the extent possible. The rule of law in this conception is the ideal of the rule through a precise public conception of individual rights. It does not distinguish, as the concept of a rulebook does, between the rule of law and substantive justice; On the contrary, within the framework of the legal ideal, it requires that the rules of the regulation capture and enforce moral rights. (2) In the 1970s, Hayek began to rethink all this. Attention is always focused on the implications of the rule of law for freedom.

But now Hayek has begun to wonder whether the texts of clear general legal rules would really provide an appropriate framework for freedom. It is a mistake to believe that “by limiting the judge to apply rules that have already been set out, we will increase the predictability of his decisions.” Articulated rules are “often a very imperfect formulation of principles that people are better able to honor in deeds than to express in words” (Hayek 1973:118). Instead, he preferred a common law predictability model, with principles and solutions emerging from a series of court decisions in an almost evolutionary manner. [1] The development of principles distinguished by their relevance was superior to the deliberate imposition of rules by a legislator, Hayek thought. According to Hayek, the legislative mentality is inherently managerial; it is mainly oriented towards the organization of the administrative apparatus specific to the State; And its expansion into the realm of public order usually means an external projection of this type of management mentality with terrible consequences for freedom and markets. An Act that regulates the original rights and obligations of the individual. Substantive law may be derived from the common law, statutes or a constitution. For example, a claim for breach of contract, negligence or fraud would constitute a substantive common law right. A state or federal law that gives an employee the right to sue for discrimination in the workplace would also create a substantive right. In addition, Sibbach v. Wilson (1941) illustrates how the courts might consider whether a law is substantial.

There, the U.S. Supreme Court, in ruling that ordering a party to undergo a medical examination was a procedural matter and not a substantive one, emphasized that there is no such substantive right in the common law and that no such right affects the issue. There were, he conceded, cases so difficult that they could not be dealt with according to general rules — cases that required the concentrated insight of some judges; He used the term Epieikeia (sometimes translated as fairness). But these cases should be kept to a minimum, and legal education and legal institutions should continue to play a role in how they are resolved. Aristotle`s discussion of the general expediency of rules and his treatment of the epieice continue to influence modern jurisprudence (see Scalia 1989 and Solum 1994). He avoided resorting to metaphysics by identifying the source of these rights in the community. The rulebook “represents the community`s efforts to seize moral rights.” [i] In all commercial transactions, the main object should be certainty: . It is more important that a rule is secure, as if the rule were defined in one way and not the other. (Lord Mansfield in Vallejo v. Wheeler (1774) 1 Cowp. 143, p.

153 (cited by Bingham 2010:38)) The extent to which the Company is bound by law engages in processes that ensure the guarantee of property rights according to legal rules that are applied in a predictable manner and are not subject to the whims of certain people. .