RULE OF LAW
Rule of law is a challenging and fundamental aspect of law in all states. It lays down the basic principle of the Constitution, which simply means that those with power or even with no power come under the law. Governmental powers can be controlled through law.
It can be interpreted in two ways, Political
or philosophical. But its meaning is not precise. According to D M
Walker, The Oxford Companion to Law- It is a concept of utmost
importance but has no defined, nor readily definable content. Rule of law is
subjective and has more than one definition. It may mean different things to
different people at different times. This means that this concept is subjective
and has more than one definition. Rule of law can be traced back to time of Socrates,
Cicero, Plato & Aristotle (philosophical view). For liberalists
it means freedom for all under the law while for Marxists theorists like
EP Thomson it means law represents interests of the powerful (political
view)
Section 1 of the
Constitutional Reform Act 2005 states:
This Act does not adversely affect –
(a) the existing constitutional principle of the rule of law, or (b) the Lord
Chancellor’s existing constitutional role in relation to that principle. Even
this section does not define what rule of law exactly is. For many theorists
the definition is that any executive, public official or any person with
authority may exercise its powers only if authorized by law. That law should
not only legitimize use of power but also protect rights of the people.
Rule of law may be defined in two ways:
Narrow
Interpretation or the liberal interpretation.
The narrow interpretation is that
any executive, public official or any person with authority may exercise its
powers only if authorized by law. That law is only regulator of an individual’s
behavior. This way this definition is perfect for totalitarian (where the State
has total authority over private & public life) or impoverished states
where the state has to only maintain law and order and citizens have to follow
that law order to comply with rule of law. (Note: this means that may the law
be good or bad they will have to comply with it). The western liberal societies
have sought to the ‘greater content’ in order to interpret rule of law. That
rule of law does not regulate law, but also where citizens enjoy protection
from tyranny and abuse of the ne in power. So, in western philosophy or
political view of rule of law, government under law does not necessarily mean
government according to law.
Now regarding greater content there
is divergence in views as some theorists view that there should be minimum
standards on how law is to be expressed and administered. (that there should
be some rules you comply with when you make laws. Some things that should
always be present in that law that you make). The focus here is that ‘such
procedures’ should be made which ensure that rights of people should be also
protected as well as legitimizing of use of power. One approach to this view is
of Joseph Raz, who has proposed 8 points on how laws should be expressed and
administered for ensuring rule of law:
1.
Laws
should be general, open, clear;
2.
Law
should be relatively stable;
3.
Law
should be identify the executive law making (delegated legislation);
4.
The
independence of judiciary should be guaranteed;
5.
Application
of law should accord with rules of natural justice;
6.
Courts
should have power of judicial review;
7.
Courts
should be easily accessiblel;
8.
Crime
agencies should have the discretion to lead away from the usual course of
justice if needed.
These are important qualities which
are necessary for there to be rule of law and are even found in UK’s
Constitutional legal setup. These principles can be found in many cases such as
(Merkur Island Shipping Corporation v Laughton) (R v Sussex Justices) (Ridge v
Baldwin)
However Raz emphasis is only on the
procedural( A body of rules telling manner and form and order in which matters
are dealt with and enforced) aspect of law and not on the substantive( the
written law which tells rights and obligations of a person) nature of law.
Other western philosophers, like
Professor Fuller has gone beyond the requirements of form and procedure and has
extended the interpretation to certain liberal rules.
Lord Bingham defined rule of law in
8 sub rules. His discussion has been one of the most influential modern
discussions of the rule of law. The sub-rules are as follows.
1. The law must be accessible and,
so far as possible, intelligible, clear and predictable.
2. Questions of legal right and
liability should ordinarily be resolved by application of the law and not the
exercise of discretion.
3. The laws of the land should apply
equally to all, save to the extent that objective differences require
differentiation.
4. Ministers and public officers at
all levels must exercise the powers conferred on them in good faith, fairly,
for the purpose for which the powers were conferred, without exceeding the
limits of such powers and not unreasonably.
5. The law must afford adequate
protection of fundamental rights.
6. Means must be provided for
resolving, without prohibitive cost or undue delay, bona fide civil disputes
which the parties themselves are unable to resolve.
7. Adjudicative procedures provided
by the state should be fair.
8. The rule of law requires
compliance by the state with its obligations in international law as in
national law.
For Bingham these are important
points as they tell for what we might face a criminal penalty for; for what we
can claim our rights and understand our obligations and because successful
conduct of trade and commerce depends on accessible rules.
In his view a law should have
clarity (Merkur Island Shipping Corpn v
Laughton), predictability and
accessibility
According to Professor Fuller, the
needs of the people must be fulfilled for a legal system to be worthy. If a
government offends this basic requirement it cannot be government according to
law.
In UK, the basic meaning of Rule of
Law has been given by A V Dicey who proposed 3 fundamental principles of rule
of law.
a)
There
should be no arbitrary power. The government, executive, public authority shall
not exercise their powers unless authorized by some law.
That no man shall be punishable or
made to suffer in body or goods except for a distinct breach of law that was
established in ordinary legal manner, before the ordinary courts.
This limb can adjust in any
governmental system where exercise of powers are arbitrary, discretionary and
where a person is punished without breaching and established legal rule in
ordinary court. To Dicey this idea was not present in UK’s constitutional
tradition and was condemned in (Entrick v Carrington)-> rights of an
individual were upheld against the power of the state. A warrant was passed
from the secretary of the state to search and seize illegal materials from
Entrick’s property. The court said that the warrant has no lawful authority and
the officials all had trespassed the plaintiff’s property.
(Malone v UK) The European Court of
Human Rights (ECtHR) said that UK violated Article 8 of the Human Rights Act
(Right to privacy)
b)
Dicey’s
second limb emphasizes that government is also subject to law and every man
irrespective of rank, status, a governmental official or ordinary citizen, is
subject to the same law and same courts. In eyes of law are equal.
Here Dicey viewed the French system
of special laws and special courts as abhorrent as they will always favor state
over citizen if there is a conflict between the two.
c)
That
the general principles of constitution in UK ( for eg rights of personal
liberty, right of public meeting) are result of judicial decisions.
According to Dicey, a citizen’s
rights were more protected in UK than in any other State.
Dicey’s view was criticized by Sir
Ivor Jennings in The Law and the Constitution, as the principle he presents
is only applicable in those societies where such conditions are present for
this sort of Rule of Law to apply i.e In western societies only.
Dicey was also criticized for
excluding discretionary powers for there to be rule of law whereas
discretionary powers are very important for a government to run in order to
meet unforeseen emergencies and events, welfare programmes.
Critics also criticized Dicey for
comparing other legal systems like French with UK as the conditions present in
both Systems are different.
Jennings also stated that public
authorities in UK, have wide discretionary powers which allows them to
interfere with property, liberty and rights of any citizen without trial before
the ordinary courts
Jennings also pointed that
administrative law and administrative courts are present in UK although
insignificant as compared to France. Robson also criticized Dicey on
this point in his book, Justice and Administrative law.
He pointed that in England public
authorities had special immunities and exemptions which could easily deprive a
citizen off his rights and leave him with no remedy.
In the modern world of today, it is
easy to contradict Dicey’s view of equality e.g., the police have powers over
and above the citizen. Ministers have powers to enact delegated legislation,
crown and diplomats enjoys immunities under the law, MPs have immunity from law
of defamation.
Dicey was also caught by critics for underestimating the contribution of statutes to the constitution for the development of certain rights such as sickness benefit, education, right to vote etc. moreover, after the Human Rights Act 1998, rights protected under European Conventions on Human Rights have been incorporated in domestic law. With slight modifications, Dicey’s concept of Rule of Law has influence on government. In regard to the first limb, no person is allowed to act arbitrarily. In many cases the courts have asked officials to show legal authority for interfering with an individual’s rights. (R v Inland Revenue Commissioners). Moreover no person may be deprived off his property unless compensated.
Regarding Dicey’s second
preposition, government and officials are accountable for their actions before
the ordinary courts. the courts use devices such as natural justice or ultra
vires to ensure that executive acts within the law. In (M v Home Office) the
House of Lords decided that a government minister was guilty of contempt of
court while acting in his official capacity. This proves that no body, not even
the executive is above the law. Many jurists like Fredrick von Hayek, The
Road to Serfdom, agree with Dicey and even state that Rule of law should
also limit the parliament and exclude such legislations that are directed at
particular people. For rule of law there is need of representable responsible
government and need of such provisions that if a citizen is wronged he has a
remedy for it.
John Rawls preposition for rule of law echoed that of Dicey in Theory
of Justice. He said that rol is obviously closely related to liberty. The
essence of a just legal system is a regular and impartial administration of
public rules. Several requirements should be met: rules of law must only
command action which is possible, those who enact laws must do so in good
faith, like cases must be treated alike. Like Dicey, Rawls also state that
there is no offence without a law. For this law should be general and the legal
system should respect natural justice.
For Max Weber a free legal
system was accompanied by State which limited itself to establishing a clear
framework of social order and left individuals to determine their own destinies
in a free market system.
It is evident from cases like
(Entrick v Carrington) (M v Home Office) courts have protected rule of law. In
(A v Secretary of State for the Home Department) the powers of the state
to detain non-UK nationals without trial under the Antiterrorism,
Crime and Security Act 2001 were
considered. This concerned individuals who were considered to be a security
threat in the United Kingdom, but could not be deported to their home countries
because of the risk that they would face torture there.
The 2001 Act was challenged under
the HRA on the grounds of discrimination under Article 14 of the ECHR, because
it only applied to non-UK nationals. The House of Lords accepted the right of
the government to conclude that the public emergency justified the detention,
but ruled that it was applied in a discriminatory manner.
As far as role of parliament goes
for protection of rule of law The doctrine of parliamentary supremacy gives the
ultimate decision over whether or not an Act of Parliament that conflicts with
the rule of law should be passed, with the courts having limited powers of
constraint.
In (Jackson v A-G), Lord Hope
stated: It is no longer right to say that [Parliament’s] freedom to legislate
admits of no qualification...the rule of law enforced by the courts is the
controlling principle upon which our constitution is based.
Conclusion: The R.O.L., in its many guises represents a challenge to the State authority and power, demanding power be granted legitimately and their exercise according to law. The law is not autonomous but rests on the support of those it governs. The law is servant of the sense of rightness in the community and while the rule of law places law above every individual-irrespective of rank and station-it remains subject to the ultimate judgment of the people.
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