It can be traced through history to many ancient civilizations, such as ancient Greece, Rome, and Mesopotamia In fifth century BC, Athens was a democracy, governed directly by its citizens. Every male citizen over thirty years of age, of whatever class or wealth, was eligible to serve (for pay) on juries that decided legal cases. To insure accountability, magistrates presiding over cases could be charged with violations of the law by complaints from private citizens. Equality before the law was an important value in their system.
Then philosopher Aristotle wrote “Now, absolute monarchy, or the arbitrary rule of a sovereign over all citizens, in a city which consists of equals, is thought by some to be quite contrary to nature;…. That is why it is thought to be just that among equals everyone be ruled as well as rule, and therefore that all should have their turn. And the rule of law, it is argued, is preferable to that of any individual. On the same principle, even if it be better for certain individuals to govern, they should be made only guardians and ministers of the law . . .
Therefore he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men. The law is reason unaffected by desire. ” In first century BC, in Rome, Cicero, a contemporary of Julius Caesar wrote during the dying stage of the Roman Republic, as it was giving way to autocratic rule. “Everyone of standing had realized that the republic’s rule of law and order had given place to the rule of the stronger”.
During Medieval era, Magna Carta also called Magna Carta Libertatum or The Great Charter of the Liberties of England, was issued in the year 1215. It was the first document forced onto a King of England by a group of his subjects, the feudal barons, in an attempt to limit his powers by law and protect their rights. Magna Carta symbolized the fact that law protected citizens against the king. Clause 39 is the historic provision: No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgement of his peers or by the law of the land.
This confirmed that the barons were not subject to the king’s Justices and confirmed that decisions must be based upon ordinary law, not upon the desires of the king. Regular courts were thus identified as the proper preserve of lawful conduct. In later years Magna Carta has also been identified as the source of constitutionalism – the structuring of the fundamental relationship between a government and its people in legal terms. In 1610, in England, Sir Edward Coke in the ‘Case of Proclamations’ and ‘Dr.
Bonham's Case’, declared the king to be subject to the law, and the laws of Parliament to be void if in violation of "common right and reason". British jurist Albert Venn "A. V. Dicey (19th century) is credited with providing the most logical foundation to the notion ‘rule of law’. Dicey popularized the whole idea of rule of law in the modern world. DICEY'S THEORY OF RULE OF LAW According to Dicey, the rule of law is one of the fundamental principles of the English constitution he gave three meanings of the concept of rule of law.
1. Absence of Arbitrary Power or Supremacy of Law Dicey states that rule of law means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power or wide discretionary power. According to Dicey Englishmen were ruled by the law and by the law alone; a man with us may be punished for breach of law, but can be punished for nothing els. (Dicey, A. V. Op. Cit. , 350) It means everything must be done according to law by the government authorities.
Government authorities should be able to justify its every action whether taking a man’s land or infringing a man’s liberty as authorized by law. Authorization in this sense will mean directly or indirectly by act of parliament. The classic example of these ideas was in the judgment of Entick v Carrington (1765) where it shows the limitation to state power. It was held that there was no law supporting the issuance of warrant and invasion of Entick's house. The warrant was, therefore declared illegal and void. 2.
Equality Before Law Rule of law, the second principle is based on the well known maxim “however high you may be, law is above you” and “all are equal before the law”. It means the equality of law or equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. In this sense rule of law conveys that no man is above the law; that officials like private citizens are under a duty to obey the same. This reflect the famous quote by Thomas Fuller; “Be you ever so high, the law is above you”.
According to Dicey “every official … is under the same responsibility for every act done without legal justification as any citizen”. “In M v Home Office (1994) 1 AC 377 HL, it was held that the executive was not above the law and that the Secretary of State was not entitled to claim Crown immunity. Dicey also did not like the French system where government activities were dealt with by separate administrative courts. He considered this to be too partial to the government and inferior to ordinary courts of law”(www. lawteacher. net). 3.
Constitution is the result of the ordinary law of the land Dicey’s rule of law in it’s third principle means that the general principles of the constitution are the result of judicial decision of the courts in England and hence there is no need for a bill of rights because the general principle of the constitution are the result of judicial decisions determining the rights of the private person. In many countries, right such as ‘right to personal liberty’, ‘freedom from arrest’, ‘freedom to hold public meeting’ are guaranteed by a written constitution but in England, it is not so.
The constitution is not the source but the consequence of the rights of the individuals. Thus, dicey emphasized the role of the courts of law as grantors of liberty. Criticism of Dicey’s theory and Modern Rule of law: Dicey’s Rule of law is criticized by various jurists, scholars and authors in many ways as it seems to be ambiguous in many ways. In its first principle, Dicey says that there would be no arbitrary or discretionary power. But if we check history then we can see during Dicey’s lifetime there were both arbitrary and discretionary powers in England.
Dr. Ivor Jennings in his book “The Law and The constitution” pointed out how modern conditions contradict Dicey’s thesis, that is, that “the British Constitution is characterized by an absence of discretions”. “Even in Dicey’s day wide discretionary powers were vested in public authorities, while today with an increasing amount of social legislation authorizing more and more is what the layman calls “government interference” they have become a common place. (Edward I.Sykes;
The “Rule of Law” In The Modern World) Preventive detention, emergency situation, compulsory acquisition of goods and properties, direct enforcement of administrative decision etc. are the best example of exercise of arbitrary power. Moreover, He did not anticipate the increased need for discretionary powers in the modern State and the need for legal control of such power. Discretion is now seen as necessity to make decision in an increasingly complex society. Therefore, the rule of law has been reconciled to discretionary power with constrains of the values of the rule of law, such as fairness, impartiality and equality.
Sir Jeffrey Jowell QC summarises that .. Dicey believed that discretionary power offended the Rule of Law as it would inevitably lead to arbitrary decisions. His critics pointed out that in the modern state discretion is necessary to carry out a variety of welfare and regulatory tasks. Nevertheless, the Rule of Law contains a number of important values, including legality, certainty, accountability, efficiency, due process and access to justice. These are not only formal values but also substantive.
The Rule of Law is not a theory of law but a principle of institutional morality inherent in any constitutional democracy. In a country without a written constitution it constrains the way power is exercised. It is enforced and elaborated through judicial review but also serves as a critical focus for public debate… (The Changing Constitution (2007). In the second principle, Dicey is concerned primarily with equal access to the courts, not with the nature of the rule. According to him there should be no separate administrative courts as in French 'Droit Administratif.
' Dr. Jennings claims that the purpose of droit administratif is not to protect public officers from liability for wrongful acts, but to define and clarify the citizen's means of obtaining redress, to provide for a satisfactory mode of securing a fair trial of the issues in dispute between citizen and State. At least, such a system places the liability of public officers on a logical basis, whereas in England the subject of the liability of the Crown, of public ervants, and of government departments, is most confused, uncertain, and unsystematic.
(Edward I. Sykes; The “Rule of Law” In The Modern World) He showed little concern with the role of law in deciding whether different rules applicable to different groups were defensible on the ground that there was some rational justification for the difference in treatment. To maintain the law and order in the society there are actually prerogative powers with the crown, police and members of parliament. They may use these powers against the rights of an individual. “Sir Ivor Jenning pointed out that no citizens are absolutely equal.
According to him Dicey’s interpretation of the principle is too narrow. A better interpretation should be “everyone is equal and subject to the same law, the executive and legislative power may have immunities, but in the sense they should be accountable for their actions According to the third principle, "the Constitution is the result of the ordinary law of the land," sources of the fundamental right and liberties are judicial decisions. But this is one-sided view as citizens of England have got many rights through the law of parliament and charters issued by the monarchs.
The powers and duties of the public authorities are determined by statute not by the courts. This is so obviously an overstatement, and the context shows so clearly that Dicey is thinking only of special individual rights such as freedom of speech, that it seems somewhat unnecessary for Dr. Jennings to point out, as he does, that in reality the most important principles underlying the British Constitution are not judge-made at all. Thus the dogma of the sovereignty of Parliament was the result of a successful revolution accepted as a fait accompli by the Courts. (Edward I.Sykes; The “Rule of Law” In The Modern World).
Thus, The Diceyan view of the rule of law was therefore ambiguous in certain respects. Different Jurists and scholars have emerged with different understanding of the principle with the relevance to the modern world. According to Dr. W. I. Jennings “the Rule of Law is always a political maxim, appropriate enough in an age when the aim of government was conceived of as being merely the preservation of order, but obsolete in an era when Governments are solicitous for the welfare of the individual in every walk of life” (Edward I.
Sykes, The “Rule of Law” In The Modern World) As Bergman claims in this issue, "rule of law transcends the competence of courts and the judicial branch" and "should be understood as a social equilibrium where the vast majority of citizens accept to be ruled most of the time by binding and general norms that have a high probability of compliance” (Preface Rethinking the Rule of law: Concepts, Measures and Theory: Ryan E. Carlin and Rodolfo Sarsfield- The justice system journal, vol.
33, 2012) Sir Ivor Jennings says "In proper sense rule of law implies a democratic system, a constitutional government where criticism of the government is not only permissible but also a positive merit and where parties based on competing politics or interests are not only allowed but encouraged. Where this exist the other consequences of rule of law must follow” Present position of rule of law The modern concept of the Rule of Law is fairly wide and was developed by the International Commission of Jurists Known as Delhi Declaration, 1959 which was later on confirmed at logos in 1961.
According to this formulation— "the rule of law implies that the functions of the government in a free society should be so exercised as to create conditions in which the dignity of man as an individual is upheld This dignity requires not only the recognition of certain civil or political rights but also creation of certain political, social, economical, educational and cultural conditions which are essential to the full development (Massey Report, Op. Cit. 30. ) It can be said that rule of law does not mean and cannot mean any government under any law.
It means the rule by a democratic law- a law which is passed in a democratically elected parliament after adequate debate and discussion. The rule of law is considered as an essential component of democracy and free markets. Developed countries and international organizations have spent more than a billion dollars over the last twenty years trying to build the rule of law in countries transitioning to democracy or attempting to escape underdevelopment. ( Carothers, “Rule of Law Revival. ”) European Union is promoting Rule of law both in the context of its enlargement and as part of it’s neighbourhood policy.
The concept of the rule of law is embedded in the Charter of the United Nations. In its Preamble, one of the aims of the UN is “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”. A primary purpose of the Organization is “to maintain international peace and security… and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.
” The Universal Declaration of Human Rights of 1948, the historic international recognition that all human beings have fundamental rights and freedoms, recognizes that “… it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law…” For the UN, the Secretary-General defines the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.
It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. " (Report of the Secretary-General:
The rule of law and transitional justice in conflict and post-conflict societies” (2004)) World Justice Project (WJP) has developed its own unique Rule of law index, an innovative quantitative assessment tool known as “WJP Rule of Law index” to get a detailed and comprehensive picture of the extent to which countries adhere to the rule of law in practice. The whole assessment is done on the basis of certain factors like limited government powers, absence of corruption, order and security, fundamental rights, open government, regulatory enforcement, civil, criminal and informal justice.