Historical Background of the Concept of Rule of Law

Authors Avatar

  PROJECT REPORT

On

‘RULE OF LAW’

SUBMITTED TO :                                         BY :

Ms. BABITA PATHANIA                        KULWINDER KAUR

Lecturer, Department of Laws;                 LL.B. 3rd SEMESTER

P.U., Chandigarh.                                SECTION -H

                                                                ROLL NO. – 84/06

Introduction

The entire base of ‘Administrative Law’ rests on the concept of the ‘Rule of Law’. No Constitution of any country can function and no nation can march along the true democratic way of life without a true and continuous realization of the importance of the ‘Rule of Law’ and of judicial review of legislative and executive action. The expression ‘Rule of Law’ has been derived from the French  phrase ‘la principle  de legalite’, which means the principle of legality and which refers to a Government based on the principles of law and not of men. In simple words, the expression ‘Rule of Law’ indicates the state of affairs in a country where, in main, the law rules. Thus, it provides protection to the people against the arbitrary action of the Government and its officials by compelling them to exercise their powers in accordance with the law.

Historical Background of the Concept of Rule of Law

The concept of the ‘Rule of Law’ is indeed very ancient. It is said that the Holy Roman Emperor Konrad II (1024-1039 A.D) decreed in his great law compilation of May 28, 1037 that no holder of a feudal estate ‘shall be deprived of his fief……., but by the laws of the Empire and the judgment of his peers.’ More known is King John Lackland’s English Manga Carta of 1215 which in Chapter 39 postulated: “No free man shall be taken or arrested or exiled or in some way destroyed, nor will we go upon him, except under a lawful judgment and by the law of the land.” 

Origin of the Concept of Rule of Law

Sir Edward Coke, the Chief Justice in James I’s Reign is said to be the originator of this great principle. He expressed the view that the King must be under the God and the law and thus he vindicated the supremacy of law over the pretensions of the executive. Later on Professor A.V. Dicey developed this concept in the course of his lectures at the Oxford University.  Dicey wrote about the concept of ‘Rule of Law’ in the fourth Chapter of his classic book, “The Law of the Constitution” (published in 1885) at the end of the golden Victorian Era of laissez faire in England.  According to Professor Dicey, whenever there is discretion there is room for arbitrariness and the ‘Rule of Law’ is opposed to the arbitrary powers of the Government and its officials.

Meaning of the Expression Rule of Law

The ‘Rule of Law’ is a dynamic concept and is not capable of any exact definition.  This, however, does not mean that there is no agreement on the basic values which it represents. The term ‘Rule of Law’ is used in contradiction of the rule of man.  In the system in which ‘Rule of Law’ prevails, it is the law that rules even though through the instrumentality of man and not the man independently of or above the law. In this sense the ‘Rule of Law’ is an ideal. It is the modern name of the ‘natural law’. In Jurisprudence, Romans called it ‘jus naturale’, Mediaevalists called it the ‘law of God’, Hobbes, Locke and Roussueau called it ‘social contract’ and its modern name is ‘Rule of Law’.  According to H.W.R.Wade, the ‘Rule of Law’ has different meanings.  Its primary meaning is that every thing must be done according to law. Applied to the powers of Government, this requires that every Government Authority which does some act which would otherwise be a wrong or which infringes a man’s liberty must be able to justify its action as authorized by law.  The secondary meaning of the ‘Rule of Law’ is that the functions of the Government should be conducted within a framework of recognized rules and principles which restrict discretionary power.

According to Garner, the ‘Rule of Law’ is often used to describe the state of affairs in a country where, in main, the law is observed and order is kept. It is an expression synonymous with ‘law and order’. 

However, to the public lawyers it is linked with the writings of Dicey.  

Dicey’s Formulation of the Concept of Rule of Law

According to Dicey the concept of ‘Rule of Law’ forms the basis of the English Constitutional Law and it has three meanings:

  1. Supremacy of law;
  2. Equality before law; and
  3. Predominance of legal spirit.

1.   Supremacy of law: - It means the absolute predominance of regular law as opposed to the influence of discretionary power and excludes the existence of arbitrariness. It prohibits wide discretionary powers in the hands of Government officials. It implies that justice should be done according to the established or written principles of law and not according to the discretion vested with the individuals (Government officials). In other words, ‘no man is punishable or can lawfully be made to suffer in body or goods except for a breach of established law in the ordinary legal manner before the ordinary Courts of the land’. Accordingly Wade also says, “The ‘Rule of Law’ requires that the Government should be subject to the law, rather then the law subject to the Government.”

 2.  Equality before law: - It means the equal subjection of all persons to the ordinary law of the land administered by the regular law Courts. The ‘Rule of Law’ in this sense excludes the idea of any exemption of government officials from the subjection to regular law Courts like other citizens. It means that cases of citizens against the government should not be decided by the administrative tribunals, where the government officials act as judges because such tribunals while deciding the cases of citizens gives preference to Government and hence equality before law is denied to ordinary citizens. According to Dicey in England all persons were subject to one and the same law, and there were no extraordinary tribunals or special Courts for Government officials and other authorities. In this connection he criticized the French legal system of ‘droit administratif’ in which there were separate administrative tribunals for deciding cases between the government officials and the citizens. In his view, exemption of civil servants from the jurisdiction of the ordinary Courts of law and providing them with the special tribunals was the negation of equality. 

Join now!

3.  Predominance of legal spirit: - By this Dicey means that the general principles of the Constitution are the result of judicial decisions of the Courts in England. In many countries rights are guaranteed by a written Constitution; in England it is not so. Those rights are the result of judicial decisions in concrete cases which have actually arisen between the parties. In this way he emphasized on role of Courts as the guarantor of liberty. Dicey apprehended that if the source of the rights of people is any written Constitution, the rights can be abrogated at any time by amending the Constitution. According to ...

This is a preview of the whole essay