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Question # 03:
WRITE A NOTE ON RULE OF LAW AND ITS
CRITICISM?
1. INTRODUCTION:
The rule of law is a basic idea in law that says
everyone, no matter how important or ordinary, must follow the same
rules. Even powerful people can't ignore these rules, and they can be
judged by regular courts. This concept started in 16th century Britain
and was explained more by a British jurist named A. V. Dicey in the
19th century.
2. MEANING AND DEFINITION OF THE RULE OF LAW:
It means that no man is above law and every person is subject to the
jurisdiction of ordinary courts of law, irrespective of their position
and rank.
The rule of law means the absolute supremacy or predominance of
the regular law as opposed to the influence of arbitrary power and
excludes the existence of arbitrariness or even of wide discretionary
authority on the part of the government. – Prof. A. V. Dicey
The 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. Black’s Law Dictionary
3. DEFINITION OF RULE LAW:
According to Aristotle:
“Government by law
is superior to the Government by men.”
4. BASIS OF RULE OF LAW
The phrase "Rule of Law" comes from the
French phrase "la Principe de legalite," which means "principle of
legality." It's about having a government that follows laws instead of
personal decisions. One important part of a constitution is the rule of
law. This means everyone, even the government, must follow the
laws, and no one is above the law.
5. THE HISTORY OF THE RULE OF LAW:
Following are the main
charters to explain the history of rule of law.
MAGNA CARTA 1215: One significant charter is the
Magna Carta, signed in 1215. It limited the power of the
monarch, established the principle of the rule of law, and
safeguarded certain rights of individuals.
PETITION OF RIGHTS: Another notable charter is the
Petition of Right (1628), which reinforced the limitations
on the king's power and asserted the rights of Parliament.
6. POSTULATES/ PRINCIPLES OF THE RULE OF LAW:
According to Professor
A.V Dicey, for achieving supremacy of law three principles must be
followed, which are as follows.
Supremacy of law,
Equality before law and
Predominance of Legal Spirit
Supremacy of Law:
It means the absolute Supremacy of law.
In other words, a man may be punished for a breach of law but
he can not be punished for anything else.
Equality before Law:
According to Dicey's second principle,
everyone should be treated equally under the law, and the
regular courts should handle legal matters. Dicey also
criticized the French legal system for having special courts for
state officials and separate ones for citizens.
Predominance of Legal Spirit:
Civil rights of people are not
embodied in constitution but these are followed in judicial
decisions.
7. CRITICISM ON DICEY’S RULE OF LAW:
We can see
Criticism on Dicey’s Rule of Law under following heads:
1. TOO STRICT: Dicey thinks we should always follow the law
exactly. but sometimes, we need to be flexible to handle complex
problems or emergencies.
2. JUDGES AREN'T PERFECT: Dicey believes judges are
always fair and unbiased. however, judges can be influenced by
their own opinions or outside pressures.
3. NOT FAIR FOR EVERYONE: Dicey says everyone is equal
under the law. but in reality, richer people often get better
treatment in the legal system than poorer people.
4. DOESN'T LIKE GOVERNMENT RULES: Dicey didn't
trust special rules for government actions (called administrative
law). but these rules are important for running a modern country.
5. OLD IDEAS: Some people think Dicey's ideas are old-
fashioned and don't fit well with today's legal systems, which
include more rights and protections for people.
8. MERIT AND DEMERITS OF THE DICEY CONCEPT
MERITS:
Help in making limits to the power of administrative authorities.
A major role in growth and recognition of administrative law.
Act as a scale for the test of administrative action.
DEMERITS:
His theory was not fully accepted during his era also.
Failed to distinguish between discretionary and arbitrary power.
9. THE RULE OF LAW UNDER PAKISTAN
CONSTITUTION:
Rule of
law is crucial for Pakistan's democracy. The Constitution (1973) is the
supreme law. Article 4 & 25 are important. Article 4 ensures fair
treatment under the law. Rule of law is in Fundamental Rights too.
Article 199 lets people ask High Court for help if rights are violated.
Constitution promotes justice, equality, and liberty. Laws must follow
the Constitution. If not, they're void. Article 199 lets High Court issue
writs like Habeas Corpus. Supreme Court reviews to ensure laws fit
Constitution and preserve rule of law.
10. RULE OF LAW IN UNITED KINGDOM:
In the United Kingdom the
rule of law is a long-standing principle of the way the country is
governed, dating from Magna Carta in 1215 and the Bill of Rights
1689. In the 19th century, A. V. Dicey, a constitutional scholar and
lawyer, wrote of the twin pillars of the British constitution in his
classic work Introduction to the Study of the Law of the Constitution
(1885); these two pillars are the rule of law and parliamentary
sovereignty.
11. RULE OF LAW IN UNITED STATES OF AMERICA:
5th and 14th amendment of
American Constitution deals with due process clauses. According to
which the life and liberty of a person are not subject to uncontrolled
powers of the government.
The Fifth Amendment says to the federal government that no one shall
be “deprived of life, liberty or property without due process of law”.
The fourteenth amendment, ratified in 1868, used the same words
called due process clause, to describe a legal obligation of all the
states.
12. MODERN CONCEPTION ON THE RULE OF LAW:
In the modern sense, the rule of law means supremacy of the
Constitution in the countries which is written Constitution.
It also means observance with the existing law or to be framed
which isn’t repugnant to the Constitution.
It also means conforming to the developed modern concepts of
constitutional law which have attained universal acceptance.
These concepts involve due process of law, equality before law,
independence of judiciary, separation of powers and
enforceability and justifiability of human rights and civil liberties
as promoted in every constitution under the chapter of
‘Fundamental Rights’.
13. CONCLUSION:
In conclusion, the rule of law is a
fundamental principle that ensures everyone, including leaders,
is subject to fair and just laws. It promotes equality, justice, and
accountability, forming the foundation of a stable and democratic
society where rights are protected and upheld for the benefit of
all citizens.
Regards: Wajeeh Ahsan Alvi
(M.A, LLB, DTL)
Contact No: 0313-4384159
