Concept of Rule of Law

The concept of Rule of law is of old origin and is an ancient ideal. It was discussed by ancient
Greek philosophers such as Plato and Aristotle around 350 BC. Plato wrote: “Where the law
is
subject to some other authority and has none of its own, the collapse of the state, in my view,
is
not far off; but if law is the master of the government and the government is its slave, then the
situation is full of promise and men enjoy all the blessings that the gods shower on a state”.
3 see http://judis.nic.in/supremecourt/chejudis.asp
4 Indira Nehru Gandhi v Raj Narain, AIR 1975 SC 2295; SP Gupta v Union of India, AIR 1982 SC 149
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Likewise, Aristotle also endorsed the concept of Rule of law by writing that “law should
govern
and those who are in power should be servants of the laws.”5
The phrase „Rule of Law‟ is derived from the French phrase „la principe de legalite‟ (the
principle of legality) which refers to a government based on principles of law and not of
men.6 Rule of law is one of the basic principles of the English Constitution and the doctrine is
accepted in the Constitution of U.S.A and India as well. The entire basis of Administrative
Law
is the doctrine of the rule of law.7 Legal historians have amply demonstrated the intrinsic
linkage
between legal developments and the historical settings in which they take place. The concept
of
the Rule of Law is no exception. It is grounded in the ideas of justice, fairness, and
inclusiveness
discussed by Aristotle; in the rules of war addressed in the ancient Indian epics Mahabharatha
and Ramayana; in the foundations of religious thought such as the Ten Commandments and
the
Dharma Chakra; and in seminal historical documents such as the Magna Carta, which
embodied
the principle that government itself is bound to abide by the law. Since then, philosophers and
jurists from all corners of the world have molded the philosophical underpinnings and
judicial
content of the Rule of Law. Today, the Rule of Law is the foundation of good governance.
This
requires adherence to constitutional supremacy, recognition that government and the
governed
are equal before the law, acknowledgment that government itself is limited by the law and
cannot
engage in any arbitrary exercise of power, and recognition that individuals are endowed with
certain inalienable rights that cannot be denied even by legitimately constituted governments.
Today, the Rule of Law is comprised of an intricate chain of fundamental ideas, which
include
equality before the law; equal treatment before the law for government and the governed; the
independence of the judiciary; transparency, consistency, and accountability in the
administration of law; and the notions of equity, justice and fairness. Like all chains, the Rule
of
Law is only as strong as its weakest link.
Meaning of Rule of Law:
5 http://www.lawteacher.net/free-law-essays/constitutional-law/introduction-concept-of-rule-law
essays.php#ftn1(accessed on 21/10/2015)
6 http://www.lawteacher.net/free-law-essays/constitutional-law/introduction-concept-of-rule-lawessays.
php#ftn1(accessed on 21/10/2015)
7 Ibid

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The term „Rule of Law‟ is taken from England. It means that no man is above the law and
that
every person is subject to the jurisdiction of ordinary courts of law, irrespective of his rank
and
position. „Rule of Law‟ requires that no person should be subjected to harsh, uncivilized or
arbitrary treatment. Rule of law is associated with the word „law‟ which means that man or a
society must not govern by a man or ruler but rather than they must be govern by Law. In
other
words we can say that law means law of land which is defined under Article 13 of Indian
Constitution. Rules mean law rules. Since, there is no physical existence of law so law means
government based on principle. It means all the acts of government should be reasonable and
according to law.
The expression “rule of law” explains a state of affairs in which everything must be done
according to law. It is a state of affairs in which there are legal barriers to governmental
arbitrariness and there are available legal safeguards for the protection of the individuals. In
simple words, it is the reverse of tyranny, the antithesis of the rule of anarchy and fear.8
According to Oxford Advance Learner‟s Dictionary, rule of law means the situation in which
all
the citizens as well as the state are ruled by the law. According to Black‟s Law Dictionary
“rule
of law” means legal principles of day to day application, approved by the governing bodies or
authorities and expressed in the form of logical proposition.
Sir Edward Coke, the Chief Justice in James I‟s Reign was the originator of this concept. In a
battle against the King, he maintained successfully that the King should be under God and the
Law, and he established the supremacy of the law.9 Prof. A.V Dicey developed this principle
of
Coke. In 1885 he gave following three postulates of the rule of law in his classic book „Law
and
the Constitution‟.
According to Prof. Dicey, rule of law has three means or we can say three principles which
are
must be followed so that there will be supremacy of rule of law.
The three principles are:
1. Supremacy of law;
2. Equality before Law; and
3. Predominance of Legal Spirit.

1. Supremacy of Law
According to the first principle, A. V Dicey states that rule of law means there should be
lacking of arbitrariness or wide discretionary power. In other words every act will be
controlled
by law. According to Dicey the English men were ruled by the law and law alone. In the
words
of Dicey, “Wherever there is discretion, there is room for arbitrariness and that in a republic
no
less than under a monarchy discretionary authority on the part of the Government must mean
insecurity for legal freedom on the part of its subjects.”10As Wade11 says the rule of law
requires
that the Government should be subject to the law, rather than the law subject to the
Government.
The rule of law requires both citizens and governments to be subject to known and standing
laws. The supremacy of law also requires generality in the law. This principle is a further
development of the principle of equality before the law. Laws should not be made in respect
of
particular persons. As Dicey postulated, the rule of law presupposes the absence of wide
discretionary authority in the rulers, so that they cannot make their own laws but must govern
according to the established laws. Those laws ought not to be too easily changeable. Stable
laws
are a prerequisite of the certainty and confidence which form an essential part of individual
freedom and security. Therefore, laws ought to be rooted in moral principles, which cannot
be
achieved if they are framed in too detailed a manner.12

2. Equality before Law

The attribute of “Rule of Law” Dicey stated was “equality before the law and equal
subjection of all classes to the ordinary law of the land administered by the ordinary law
courts.”13 The second principle emphasizes everyone, including the government, irrespective
of rank, shall be subject to the same law and courts. This element is interpreted to be
misguided and
facing bundle of criticisms. In fact, by reason of maintaining the law and order in the society,
there are actually exceptions such as the Crown, police, Members of Parliament. The Crown
may exercise prerogative powers which may defeat the rights of individuals. The police have
powers
over and above the citizen. Members of Parliament have immunity from the law of
defamation.
Prof. Dicey states that, there must be equality before the law or equal subjection of all classes
to
the ordinary law of the land. He criticised the French legal system of droit Administrative in
which there were separate administrative tribunals for deciding the cases of State Officials
and
citizens separately.

3. Predominance of Legal Spirit

The Third meaning of the rule of law is that the general principles of the constitution are
the result of juridical decisions determining file rights of private persons in particular cases
brought before the Court.
Dicey states that many constitutions of the states (countries) guarantee their citizens certain
rights (fundamental or human or basic rights) such as right to personal liberty, freedom from
arrest etc. According to him documentary guarantee of such rights is not enough. Such rights
can
be made available to the citizens only when they are properly enforceable in the Courts of
law,
For Instance, in England there is no written constitution and such rights are the result judicial
decision.
Application of the Doctrine in England: Though, there is no written constitution, the rule of
law
is applied in concrete cases. In England, the Courts are the guarantors of the individual rights.
Rule of law establishes an effective control over the executive and administrative power.
The view of Dicey as to the meaning of the Rule of Law has been subject of much criticism.
The
whole criticism may be summed up as follows. Dicey has opposed the system of providing
the
discretionary power to the administration. In his opinion providing the discretionary power
means creating the room for arbitrariness, which may create as serious threat to individual
freedom. Now days it has been clear that providing the discretion to the administration is
inevitable. The opinion of the Dicey, thus, appears to be outdated as it restricts the
Government
action and fails to take note of the changed conception of the Government of the State. Dicey
has
failed to distinguish discretionary powers from the arbitrary powers. Arbitrary power may be
taken as against the concept of Rule of Law. In modern times in all the countries including
England, America and India, the discretionary powers are conferred on the Government. The
present trend is that discretionary power is given to the Government or administrative
authorities,
but the statute which provides it to the Government or the administrative officers lays down
some guidelines or principles according to which the discretionary power is to be exercised.
The
administrative law is much concerned with the control of the discretionary power of the
administration. It is engaged in finding out the new ways and means of the control of the
administrative discretion. According to Dicey the rule of law requires that every person
should
be subject to the ordinary courts of the country. Dicey has claimed that there is no separate
law
and separate court for the trial of the Government servants in England. He critcised the
system of
droit administrative which is prevailing in France. In France there are two types of courts
Administrative Court and Ordinary Civil Courts. The disputes between the citizens and the
Administration are decided by the Administrative courts while the other cases, (i.e. the
disputes
between the citizens) are decided by the Civil Court. Dicey was very critical to the separation
for
deciding the disputes between the administration and the citizens According to Dicey the
Rule of
Law requires equal subjection of all persons to the ordinary law of the country and absence of
special privileges for person including the administrative authority. This proportion of Dicey
does not appear to be correct even in England. Several persons enjoy some privileges and
immunities. For example, Judges enjoy immunities from suit in respect of their acts done in
discharge of their official function. Besides, Public Authorities Protection Act, 1893, has
provided special protection to the official. Foreign diplomats enjoy immunity before the
Court.
Further, the rules of „public interest privilege may afford officials some protection against
orders
for discovery of documents in litigation.‟ Thus, the meaning of rule of law taken by Dicey
cannot
be taken to be completely satisfactory. Third meaning given to the rule of law by Dicey that
the
constitution is the result of judicial decisions determining the rights of private persons in
particular cases brought before the Courts is based on the peculiar character of the
Constitution
of Great Britain. In spite of the above shortcomings in the definition of rule of law by Dicey,
he
must be praised for drawing the attention of the scholars and authorities towards the need of
controlling the discretionary powers of the administration. He developed a philosophy to
control
the Government and Officers and to keep them within their powers. The rule of law
established
by him requires that every action of the administration must be backed by law or must have
been
done in accordance with law. The role of Dicey in the development and establishment of the
concept of fair justice cannot be denied. The concept of rule of law, in modern age, does not
oppose the practice of conferring discretionary powers upon the government but on the other
hand emphasizing on spelling out the manner of their exercise. It also ensures that every man
is
bound by the ordinary laws of the land whether he be private citizens or a public officer; that
private rights are safeguarded by the ordinary laws of the land14. Thus the rule of law
signifies
that nobody is deprived of his rights and liberties by an administrative action; that the
administrative authorities perform their functions according to law and not arbitrarily; that the
law of the land are not unconstitutional and oppressive; that the supremacy of courts is
upheld
and judicial control of administrative action is fully secured.

Importance of Rule of Law

Importance/Necessity of Rule of Law

 To ensure accountability, equality and access to justice for all
 To strengthen international peace and security
 To promote holistic development of a society and nation
 To promote political stability
 To achieve economic and social progress and development.
 To encourage fairness and transparency
 To prevent the violation of human rights
 To discourage corruption
 To prevent the abuse of authority and power
 To establish a social contract between the government and people

Advantages of Rule of Law

 It promotes the freedom of judiciary
 It preserves the constitution
 It prevents arbitrariness and dictatorship
 It promotes fairness and ensures transparent, timely and predictable resolution of disputes
 It is easily accessible laws that create certainty and enforceability of legal rights
 It directly promotes higher economic growth
 It is correlated with improved health outcomes and greater peace.
 It provides quality services to the people
 Rule of law empowers the individuals and communities to use their justice mechanism
 Rule of law increases public trust in the legitimacy of the government
 by competent, ethical, and independent representatives and neutrals.