But the rule of law is not just about government. It also requires citizens to respect and comply with legal standards, even if they disagree with them. If their interests conflict with those of others, they should accept the legal provisions concerning their rights and obligations. In addition, the law should be equal for all, so that no one is above the law and everyone has access to the protection of the law. The access requirement is particularly important in two respects. First, the law should be epistemic accessible: it should be a body of norms proclaimed as public knowledge so that people can study it, internalize it, discover what it requires of them, and use it as a framework for their plans and expectations and to settle their differences with others. Second, legal institutions and their procedures should be available to ordinary people to enforce their rights, settle their disputes and protect them from abuse of public and private power. All this, in turn, requires the independence of the judiciary, the accountability of government officials, transparency of public affairs and integrity of the judicial process. The “formal” interpretation is more widespread than the “substantive” interpretation. Formalists believe that the law must be forward-looking, well-known, and have characteristics of generality, equality, and security. In addition, the formal notice does not contain any requirements as to the content of the law.
[36] This formal approach allows for the adoption of laws that protect democracy and individual rights, but recognizes the existence of the “rule of law” in countries that do not necessarily have such laws to protect democracy or individual rights. The best-known arguments in favor of formal interpretation have been advanced by A.V. Dicey, F.A.Hayek, Joseph Raz and Joseph Unger. F.A. Hayek was an economist by training, but he also encouraged an interest in the relationship between legal structures and forms of economics. 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. In a criminal trial, the state has many resources, including lawyers who pursue the state`s case. As Black J. noted, it is difficult to argue that a defendant has been treated fairly, impartially and has been placed on an equal footing before the law when faced with the state without his own counsel. The idea of the rule of law has been around for a long time. Many societies, including our own, have institutions and procedures in place to try to make the rule of law a reality.
These institutions and procedures have helped define what constitutes the rule of law and what is necessary to achieve it. H.L.A. Hart (1965) reviewed Fuller`s book and wondered in what sense these principles could be called “morality.” They seemed to be more instrumental principles for effective legislation and, in Hart`s view, they were as moral as the enterprise they facilitated.
