Join our Law Notes WhatsApp Group and stay updated with Legal and Judicial Updates

Rule of Law

From Lawnotes.in
Jump to:navigation, search

The Rule of Law is one of the most fundamental aspects of modern legal systems. Simply said, the rule says, 'howsoever high you may be; the Law is above you'. It specifies that the Law is supreme and that no human being is higher than the authority of Law.

Most constitutions, such as the English Constitution, the American Constitution and India guarantee to follow the Rule of Law and hence authorities are bound to follow it strictly. Administrative Law is largely based on this Rule.

History

The concept was introduced by Chief Justice Sir Edward Coke during the James I rule. Sir Coke said that the King is under God and the Law and that the Law is supreme over executive.

The term 'Rule of Law' was derived from the French phrase la principe de legalite (the principle of legality)

The principles of Cole are developed by Dicey and are written in his book Law and the Constitution (1885).

Dicey's Rule of Law

A V Dicey stated three principles to the term 'Rule of Law'.

1. Supremacy of Law 2. Equality before Law 3. Predominance of of Legal spirit

Supremacy of Law

  • 'Supremacy of Law' is the central and most characteristic feature of Common Law.
  • Law is the absolute supreme and predominant as opposed to influence of arbitrary power or discretionary power.
  • English men are ruled by the Rule of Law and law alone.
  • A man can be punished by rule of law, and by nothing else.
  • Wade: Government is a subject of the Rule of Law, rather than the law being a subject of the Government.

Equality before Law

  • There must be equality before law or equal subjection of all classes to the ordinary law.
  • All people should be subject to one and the same law.
  • There is no need for extraordinary tribunals or special courts to deal with cases of Government and its servants (such as the one seen in Droit Administratif).
  • Of course, Dicey accepted that administrative authorities are exercising 'judicial' functions though they are not 'courts'.
  • Lord Denning: "Our English law does not allow a public officer to shelter behind a driot administratif.

Predominance of of Legal spirit

  • Rights (such as right to personal liberty, freedom from arrest etc.) are the result of judicial decisions in England.
  • The rights are a result of court judgements rather than from being enshrined in the Constitution.
  • The Constitution is a consequence (and not the source) of the rights of the individuals.
  • Thus, Courts are the guarantors of the liberty
  • Rights would be secured more adequately if they were enforceable in courts rather than just being written in the Constitutional document.
  • Mere incorporation in a written constitution is of no use in the absence of effective remedies of protection and enforcement.

Advantages of Dicey thesis

  • Helped to make administrative authorities confine to their limits.
  • Became a yard stick to test administrative actions.
  • Helped for the recognition and the growth of the concept of administrative law.

Disadvantages of Dicey thesis

  • Dicey thesis was not completely accepted even in his era.
  • Even at this time, there was a long list of statutes which permitted the exercise of discretionary powers of the Crown which could not be called to the Court.
  • Dicey instead of not just disallowing arbitrary powers has also insisted that administrative authorities should not be given discretionary powers.
  • He failed to distinguish between 'arbitrary powers' to 'discretionary powers'.
  • He misunderstood the real nature of droit administratif which was successful in France.

Modern Concept of Rule of Law

  • Today, 'Rule of Law' is seen more as a concept of rights of citizens.
  • Accepted in almost all countries outside the Communist.

Related Cases / Recent Cases / Case Law

  • Keshavananda Bharati v Union of India, AIR 1973 SC 1461: Conformity to the Rule of Law does not mean fairness.

Related Topics

Constitutional Provisions

Related News

Related News