Explain the distinction between formal (or ‘content-free’) from substantive (or ‘content-rich’) versions of the Rule of Law.


  • Formalist definitions of the rule of law do not make a judgment about the “justness” of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law.
  • Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law. Substantive law is the set of laws that governs how members of a society are to behave.
  • Joseph Raz argues that the rule of law is a negative concept, which is merely designed to minimise the harm to freedom and dignity which the law may create in the pursuance of its goals. A content-free concept of the rule of law thus does not specify what the substantive rules should be, just that the process of creation of law should be carried out with procedural fairness.
  • A content-free rule of law takes no account of social inequalities.
  • Ronald Dworkin argues that the rule of law should assume that citizens have moral rights and duties with respect to one another and political rights with respect to the state as a whole.

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