Rule of Law
Rule of Law
RULE OF LAW
In course of Twentieth century, the emergences of democratic legislations and state welfare laws have lowered the effect of natural law and common law. These laws are bit liberal and sometimes puts limitations on the rule of Law in the name of nation’s Interest. This principle of ‘Rule of Law’ has been a matter of discussion and analysis since a long time in the realm of Jurisprudence and Legal theory. But, very less interest has been shown towards the exact definition of ‘Rule of Law’. Rule of law means, the law should rule. People should follow and obey the law. In simple way we may say that by Rule of Law the sense that is conveyed is, no one is above law but Law is above all. In present world, a tussle is going on between the rule of power and the rule of Law. The countries having powers are trying to suppress comparatively weaker countries. After so many years of the cold war, America managed to become world’s greatest economy and military power and also current problem for the rule of law. Being a strong country America has become very crucial for other countries for helping them and hurting them as well. America’s war against terrorism is an example of rule of power over rule of law. Origin of Rule of Law
This doctrine was firstly introduced in 17th century and developed during 19th century by the English Jurist A.V Dicey. In many texts Dicey was regarded as the Father of the doctrine of ‘Rule of Law’. But firstly it was propounded in UK by Sir Edward Coke (Lord Chief Justice of England), later on was developed by Dicey. The rule of law owe its origin from the French word ‘la princpe da legalite’ which means that only the Law has the legality, the Law, which is just, good and supreme. They established the rule that Law is the master of government not the government, a master of Law. In Middle Ages, around 7th century, Islamic Jurisprudence established that the Law is above all and no one is above the established principles of Law, not even a Caliph. As per this rule, the decision of monarch can also not be considered the supreme one. Later on in modern times it was developed by many other jurists. This was basically to overlook the roles of the arbitrary government. Judges played a significant role in the blooming of this Doctrine.
Firstly it was observed in the most celebrated case, was ‘The Case of Prohibition’, which was itself judged by King James IV. The then chief Justice, Sir Edward Coke rejected this on the ground that the ‘Rule of Law’ is not something that is decided by the untrained monarchs. The famous Magna charta in 1215, was considered as the beginning of the Rule of Law in England. In this charter the rule and the power of the King John was limited by the feudal Lords who was governed by the arms. They bargains upon the powers of the king in this charter. Every democracy in the world today, is the example of rule of law. We can trace out their origin from their ancient theory of nation building. There are two basic conceptions of the ‘Rule of Law’: the formal one and the substantial one. In the formal conception they do not focus on the justness of law, whether a law is just or not. The only thing which is considered is the following of the legitimate rules. We can find the example from the Middle East counties, where the laws are very strict, an eye for an eye and hand for hand. But in the substantial concept go beyond only defining it, it also looks at the justness of law. Dicey’s principle of rule of Law has its own advantage. It serves as the tool to check the arbitrariness in the system and keeping the administrative systems within their limit.
The government sometimes has the discretionary powers; these discretionary powers should not be the arbitral. They should take the decisions on keeping in mind the benefits of public at large. Whenever there is any conflict, justice must be given to individual on the basis of fixed legal principle not the arbitrary rules made by man. Also, no person shall be deprived of his life or property unless otherwise in a breach of the expressed rules. Until and unless the Law prohibits a man from doing anything, he is supposed to do that. It was held in the case of Entick v. Carrington, that a person is free to enjoy or to do whatever he likes unless the law restricts him from doing so. Another main objective behind all principle is that everyone should be treated equally, and the basis should be Law. In his third principle Dicey puts emphasis on the supremacy of judiciary on deciding the rights of people. The judges should decide the case on the basis of fixed and established rules.
The reason behind this was that Dicey had the apprehension that statutes can be easily amended by the parliaments and the rights thereof may also be taken away from the citizens. Hence there must be a stable and established Rule of Law that cannot be harassed by the powerful men. We can see the rule of law also in the context of either following or not complying with the rule of law. The non compliance can be seen from the history to the current events. Today the government everywhere, either in a democratic state or monarchial state, is not totally following the rule of Law. One or in other section of governance they fail to apply it. The rule of Law cannot exist without the transparent legal system. Rule of Law and England
We know that unlike the other written constitutions, British constitution is not in written form. Here most of the rules were adopted on the basis of Judicial precedents. We can also say it the judges made law. Dicey’s study was actually based on the working of English Constitution so we can see that he advocated this form is better than the written form. In England this rule was followed in many concrete cases even in against the governing authority. In Wilkes v. Woods, a person was entitled to claim the damages against a police officer who wrongfully entered the plaintiff’s premises. This shows that Rule of Law is to be applied to every individual if he does something which is against the Law whether he be a common man or the police officer, as he trespasses the land of other man. Hence we can evolve from here, that the act which is not prohibited by Law is permitted. In case of, Melone v metropolitan police commissioner, the court held the act which is not prohibited by the Law police can only authorized do that. The case was about taping the phone call of the person who was accused of theft. Despite of giving such efficient theory, Dicey’s principle was criticized by many jurists across the world. Dicey was criticized on the ground that, he over emphasized on the supremacy of Law only but was not sure about the correctness or justness of Law. As a consequence there may exist a law which is contrary with the human rights as it is not guaranteed by the constitution.
He was totally against the discretionary power of the administration. According to him discretionary power in all case will be corrupt one but there are many statutes now a day’s which gives absolute power to the police, like in emergency situation to maintain peace and tranquility in the state. In such situation, the government can seize the rights and liberty of individuals so that it may not result in gross violation of Law by the public. Dicey’s second rule was about the equality among men. He says that everymen should be subjected to the same Law. But according to many jurists, this is totally a vague concept, how can everybody can be treated alike when they are different? Our society is composed of different kind of people, we ourselves assigned them the work. They have different duties and obligations, so they should also be treated differently. There are some underprivileged group, how can we treat them same as the one who are privileged by birth.
This was held in case of Woodward v. The Church of Scientology, that the public official and the private citizen are not equal. So we can not treat them equally when our society has a big social difference. Another criticism is that, we cannot always be governed according to the rule of law. Later on, Dicey’s principle was presented by the political theorist Joseph Raz, with few modifications with the Rule of Law which can complement the rule. He did not restrict himself only to the criticism of Dicey. But he gave an answer that why we failed to establish the Rule of Law in England consistently with few refreshing guidelines. 20th CENTURY WORLD ORDER AND THE RULE OF LAW
Although the rule of Law popularized by Dicey, was criticized by many jurists across all administrative system, it still holds much water in governing the state. It can be considered as the idealistic one. Justice should be done through the known and recognized principles of law. There is a great need of this rule now days. We can clearly see the miscarriage of justice and violation of Law and order everywhere. Parliament have become paralyzed, they are failing to implement the established rules. The corrupt and selfish governments are justifying their cruel legislations in their own way and they call it the rule of law or the supreme Law. We started very well with the supremacy of the law, the law of the land. But gradually there is a vast deviation from the goal that has to be achieved. The systems are collapsing due to the failure of the governing authority. In the monarchial countries or non democratic countries, they molded this Concept according to themselves and for their own benefits. Laws there are in support of the authorities not the public.
In the name of Law, the rulers are implementing their own will on the subjects. There are many examples in world today, the happenings of Arab countries; rather we can say that the entire middle Asian region is affected by this. As a result of this people are losing faith in government and their laws and they adopted the other way in the form of rebellion to fight with the corrupt administrators. For example, in Libya, Syria, Egypt etc. There is hue and cry everywhere. We can say that no rule of Law exists but the rule of people. By this we are going back to the early society which was described by Thomas Hobbes in his work as solitary, brutal, nasty and cruel. There was no Law. Also in democratic countries, where there are Parliaments and other governing bodies to make Laws and regulations, are also failing to achieve the goal. It is supposed that in ideology of democracy is to support the legal system and criminal justice but on the contrary, the electorate system in democracy is demoralizing the legal system and criminal justice. If we talk about England, we will also get disappointed. The rule of Law which was once the basis of governance in UK is now disappeared. The current riots in London were the mounting example for everyone.
Then came the political riots by the students opposing the Government on paying for their education by themselves was the extreme one. And what will we say about the term of sentence for the assailant Rupert Murdoch, who was termed a sentence of six weeks but serves only two in jail. There are many other examples which can be quoted for showing how paralyzed the system is becoming. But there is still much time to correct all these by following the strict Rule of Law as mentioned by Dicey. Keeping in view the present situations, the doctrine can be slightly modified in different legal systems. There should be a Rule of Law, and that should be justified. Equal should be treated equally and no one should be considered above Law of the Land. To conclude the whole discussion I can say that the rule of Law rests on first place with the acceptance that there should be some systematic rule of law, depending on the systematic rules which should be applicable to all. And its applicability depends on the fact that it should be fair and effective not manipulative.
1. Varsha, ‘Comparative Analysis of Rule of Law in India & UK’, (2010) http://www.legalserviceindia.com/article/l457-Rule-of-Law-in-India-&-UK.html, accessed On 2nd March 2012 2. Khan Kamaluddin, ‘The doctrine of rule of Law’ (2009), http://twocircles.net/legal_circle/doctrine_rule_law_kamaluddin_khan.html, accessed on 2nd March 2012 3. Stephenson Mathew, “The Rule of law as a goal of Development policy”
http://www1.worldbank.org/publicsector/legal/ruleoflaw2.htm accessed on 2nd march 2012 4. Dabcanboulet, ‘Dicey’s views on the rule of law and the supremacy of parliament’,(2002),http://everything2.com/title/Dicey%2527s+views+on+the+rule+of+law+and+the+supremacy+of+parliament 5. Murray Ian, ‘The Failure of the rule of Law in Britain’, 2010, http://www.nationalreview.com/corner/274233/failure-rule-law-britain-iain-murray, assessed on 3rd March 2012 6. Raz Joseph, The Rule of Law and Its Virtue (The Law quarter Review) 201 7. Hart HLA, ‘The concept Of Law’, 2nd edn, Claredon Press (1994) 135
1. The case of Prohibition  EWHCJ  KB
2. Entick v Carrington   St Tr 
3. Wilkes v Woods   St Tr 
4. Melone V Metropolitan police Commissioner  2 All ER  5. Woodward v. The Church of Scientology  57 ALJR 
[ 2 ]. Varsha, ‘Comparative Analysis of Rule of Law in India& UK’, Legal sevice India, (2010) [ 3 ].  EWHCJ KB
[ 4 ]. 19 St Tr 1030
[ 5 ]. Mathew Stephenson, “The Rule of law as a goal of Development policy”, (2002) [ 6 ].  2 All ER 
[ 7 ]. Dabcanboulet, ‘Dicey’s views on the rule of law and the supremacy of parliament’,(2002) [ 8 ]. Ibid 1
[ 9 ].  57 ALJR 
[ 10 ]. Joseph Raz, ‘The Rule of Law and Its Virtue’ (The Law quarter Review) PP-[195-205] [ 11 ]. Ian Murray, ‘The Failure of the rule of Law in Britain’, 2010,