Rule of law

Shivani Mamgain
Assistant Professor of Law (Contractual)
National Law University Odisha
Understanding the Rule of Law
● The Rule of Law ensures governance by law, not by rulers.
● Not explicitly defined in the Indian Constitution, but emphasized by the
judiciary.
● Declared a basic feature of the Constitution by the Supreme Court, beyond
constitutional amendments.
● Integral to good governance.
Postulates of Rule of Law - A.V. Dicey
Supremacy of Law

● Absence of arbitrariness and discretionary power.

● Everyone, including rulers, must be governed by established laws.
Postulates of Rule of Law - A.V. Dicey
2. Equality Before Law

● All classes equally subject to ordinary law, regardless of position or rank.

● Critiques and challenges to this principle.
Postulates of Rule of Law - A.V. Dicey
3. Predominance of Legal Spirit

● Constitution's principles result from judicial decisions.

● The predominance of legal spirit means that the judiciary is not subservient to
the government and is free to interpret the Constitution without fear or favour.
Rule of Law in Modern Context
Upholds democracy, ensures government accountability, and protects individual
rights.

Challenges include balancing government authority and safeguarding citizens'

freedoms.

Implied in the preamble, enshrined in Part III of the Indian Constitution.

Supremacy of the Indian Constitution
● Indian Constitution is supreme; no one is above it.
● Implied presence of the Rule of Law in the preamble.
● Part III contains fundamental rights, upholding justice, equality, and liberty.
Protection of Rights and Judicial Remedies
Article 32 and 226: Remedies for violation of rights through Supreme Court and
High Courts.

Central and State laws must conform to the Indian Constitution.

Judicial review safeguards Rule of Law by preventing ultra vires actions.

Judicial Review and Writs
Article 32 empowers Supreme Court to issue writs for justice.

Habeas Corpus, mandamus, prohibition, quo warranto, and certiorari.

Upholds Rule of Law by ensuring government actions comply with legality

Formal and Substantive Conceptions of the
Rule of Law: An Analytical Framework
Introduction
Voluminous literature on the rule of law, various perspectives.

Focus on the distinction between formal and substantive meanings.

Relevance to public lawyers and broader implications beyond specific legal

systems
Formal Conceptions of Rule of Law
Concerned with how the law is promulgated, clarity of norms, temporal dimension.

Does not judge the content of the law itself.

Formal attributes necessary, regardless of law's quality.

(Raz, Dicey, Unger)

Substantive Conceptions of Rule of Law
Beyond formal attributes, addresses content of laws.

Substantive rights derived from the rule of law.

Distinguishes between "good" and "bad" laws based on compliance with

substantive rights.

(Dworkin)
Formal Conception of the Rule of Law: Insights from
Joseph Raz

Joseph Raz's perspective on the formal conception of

the rule of law.

Emphasizing the distinction between formal and

substantive meanings.

Significance in understanding the nature and function

of the rule of law.
Rationale for Formal Conception
The rule of law as a distinct concept from broader social philosophy.

Clarifying the purpose of the rule of law in legal systems.

Separation from concepts like democracy, justice, equality, and human rights.
The Role of "Good Laws"
Implications of considering the rule of law as requiring "good laws."

Impact on the concept's independent significance.

The rule of law as a criterion for evaluating laws, not dictating their content.
The Message from Raz
Avoid using the rule of law to cloak other political conclusions.

Address societal justness and individual rights directly within political theory.

Rule of law's function is to maintain formal attributes, not judge law's

morality.
The Formal Conception's Parameters
Beyond mere authorization of government actions by law.

Laws must provide guidance for individuals' conduct and life planning.

Deduction of specific attributes for rule of law compliance

Specific Attributes of Rule of Law
Laws should be prospective, not retrospective.

Laws should be stable and guided by clear, open, and general rules.

Presence of an independent judiciary and access to courts.

Restriction on discretion of law enforcement agencies.

Negative and Positive Aspects
Rule of law as a negative value: minimizing the dangers posed by laws.

Ensuring openness, clarity, stability, and impartiality in legal application.

Acknowledging the positive aspect: Encouraging compliance with morally

objectionable laws.
Balancing Rule of Law
Rule of law as one virtue among many in a legal system.

Flexibility to sacrifice rule of law virtues to achieve other desired ends.

Adaptation to specific circumstances and needs of a legal system.

 Dicey
Formal Meaning of Arbitrary

First principle

● No man is punishable or can be lawfully made to suffer in

body or goods except for a distinct breach of law established
in the ordinary legal manner before the ordinary courts of the
land.
● Analysis of Dicey's use of the term "arbitrary" in a formal
sense.
● Importance of laws being properly enacted and applied,
regardless of content.
● Highlighting the distinction between substantive and formal
arbitrariness.
Dicey's Discussions
Reference to Dicey's later sections discussing the Bastille and arbitrary power.

Connection between legality and arbitrary power in Dicey's argument.

Clarification of Dicey's view on substantive vs. formal arbitrariness.

● It is equally clear that the word arbitrary can have a formal meaning. When used in
this latter sense the word arbitrary would provide the foundation for criticism of two
kinds of norm. One category would comprise those allegedly legal rules which, when
examined, do not in fact have any legal foundation. They might not have been
enacted in the proper manner because, for example, they have not been passed
through Parliament and do not come within the ambit of the prerogative.
● The other category of formal arbitrariness would be used to describe those norms
which have been passed in the correct legal manner, but where the resulting law was
impossibly vague or unclear, with the result that individuals had no idea how to plan
their lives in the light of the relevant legal rule. Formal arbitrariness in either of these
senses is independent of whether the content of the legislation was good or bad,
just or unjust.
Dicey's Second Principle
Introduction to Dicey's second limb: equality before the law.

no man is punishable or can be lawfully made to suffer in body or goods

except for a distinct breach of law established in the ordinary legal manner
before the ordinary courts of the land.

Dicey's focus on formal access to courts, not substantive equality.

Marshall's perspective on Dicey's principle and its limited scope.

Substance in Dicey's Equality Principle
Clarification of Dicey's stance on officials' privileges and ordinary citizens.

Absence of substantive equality in Dicey's formulation.

Dicey's views on equal subjection to common rules, not equality of legal

provisions.
Dicey's View on Protecting Rights
Dicey's argument for common law technique's superiority in protecting rights.

Emphasis on the common law's resilience against authoritarian regimes.

Comparison between constitutional documents and common law methodology.

Unger's Challenge to the Formal Conception of the Rule of
Law
Unger's arguments about the substantive inequalities
masked by the rule of law and its changing relevance in
modern times.

Exploration of Unger's perspectives on the rule of law's

historical role and its implications for contemporary legal
theory.
Unger's Critique of the Rule of Law
Assertion that the formal conception of the
rule of law masks substantive inequalities in
power.

Claim that the formal conception is becoming

increasingly unattainable in the modern
context.
Formal Conception as a Mask
Unger's view of the rule of law as a legitimating mask for substantive inequalities.

The emergence of the rule of law as a justification for the organization of society.

Unger's interpretation of the formal attributes of the rule of law: generality,

autonomy, neutrality, predictabilit
Formal Attributes and Power Legitimation
Connection between formal attributes of the rule of law and legitimating
power structures.

Unger's argument that formal attributes create an illusion of impersonal

power.

Implication that formal attributes legitimize existing power imbalances.

Critique of Legitimating Function
Unger's contention that the legitimating function of the rule of law is a sham.

Power concentration beyond government in areas like the workplace and family.

Ineffectiveness of rules in constraining power due to content bias and

interpretational subjectivity.
Unger's Post-Liberal Society
Unger's concept of a post-liberal society with increased governmental
involvement in the economy and societal regulation.

Erosion of boundaries between public and private spheres.

Impact on the nature of legal norms, legislation, and legal reasoning.

Implications for Rule of Law Attributes

Erosion of generality due to complex societal problems.

Autonomy undermined by open-textured statutes and judicial discretion.
Empirical and Conceptual Concerns
Exploration of empirical questions regarding Unger's post-liberal society.

Analysis of the conceptual issues raised by Unger's challenge to the rule of law.

Consideration of societal prioritization of virtues over formal rule of law values.

Core Principles of Dworkin's Theory
Integrity and Coherence

Law has inherent integrity

Judges must respect coherence

Law is more than a set of rules

Core Principles of Dworkin's Theory
Principle and Policy Distinction

Principles are moral guidelines

Policies serve social goals

Principles > Policies

Core Principles of Dworkin's Theory
Rights as Trumps

Rights override other considerations

Grounded in moral principles

Limit government action

Interpretation as Constructive
Judges interpret constructively

Best sense of legal materials

Considers principles and rights

Not just uncovering legislative intent

Dworkin's Theory of Adjudication
Constructive Interpretation
Coherent and principled decisions
Fits moral and political framework
Resolving conflicting precedents
Judicial Discretion
Critique of positivist view
Judges engage in moral reasoning
Even in unclear or conflicting cases
John laws
Non-Positivist, Rights-Based Conception of Law:

Content of Constitutional Rights:

Substantive Conception of the Rule of Law:

John laws
Allen
Trevor Allan has some interesting thoughts about the rule of law.

He believes that the rule of law is not just about following strict rules, but also
about important ideas of fairness and justice.
Form vs. Substance

Allan argues that the rule of law is not only about following formal rules, but also
about important values like moral autonomy and respecting each person. He
believes that these values are the foundation of the rule of law.

Principles and Fairness

According to Allan, when judges make decisions in court, they don't just apply
rules. They also use principles, this means that sometimes, judges have to think
about what's morally right and fair, even if it's not a strict rule.
Common Law Courts

Allan looks at how courts in the UK make decisions. He says that they often use
principles of fairness and justice, not just strict rules. He thinks this is a good
thing because it helps the law be more just and fair.
Inspiration from Dworkin

Allan influenced by Dworkin's ideas

Dworkin's emphasis on fairness in law

Looking Closer

Allan's ideas questioned by some

Using fairness doesn't mean ignoring rules

Is the Rule of Law Special?

Allan believes rule of law is important

Some see it as part of fairness and justice

Does Allan's Proof Work?

Allan gives examples of fairness in court

Debate over whether it supports his view

Raz
Core Idea: Principled Faithful Application of law

Raz's central concept: "principled faithful application of the law."

Emphasis on open, public administration of justice.

Reasoned decisions by independent judiciary based on publicly promulgated,

principled legislation.
Scope and Targets

Rule of law applies to courts, legislature, police, administrative authorities.

Balances faithful application of laws with principled adjudication.

Sets limits to majoritarian democracy.

Principled Adjudication

Core aspect: courts make reasoned and public decisions.

Integrates legislation with underlying legal system doctrines.

Example: Balancing police powers with citizens' liberties.

Coherence of Purpose

Purpose of principled adjudication: maintain coherence within the law.

Balance between long-established traditions and short-term needs.

Guardians of Longer-Term Tradition
Courts' role as guardians against short-term influences.
Protecting legal traditions from hasty changes due to elections or public pressure.
Civil Rights in Raz's Vision
Raz's view on civil rights within his rule of law concept.
Presupposition and implication of civil rights.
Rule of law respects civil rights as part of fundamental legal traditions.
Integration with Broader Legal Theory
Raz's rule of law fits into his larger theory of law.
How his ideas about rules and fairness contribute to understanding the legal
system.
Jowell
Substantive Dimension of the Rule of Law
Jowell's view: Rule of law includes both procedural and substantive elements.
Sees it as a principle of institutional morality and a check on government power.
Judicial Review as a Mechanism
Jowell's focus on judicial review to maintain substantive aspect.
Courts strike down unreasonable, arbitrary, or capricious agency actions.
Judicial intervention to uphold rule of law against unchecked government power.