27 Mar 2010

Rule of Law: Dicey revisited

One must have come across the term 'rule of law' on occasions more than many whether it be the lawyers or the judges who dawn this and related concepts in their judicial speeches or even the layman when speaking in general over the state of affairs in the community. If anyone is to be thanked for giving us this touchstone to vouchsafe or criticize governmental action, it is noted jurist A.V. Dicey who propounded the concept of Rule of Law in his treatise 'An Introduction to the study of the Law of the Constitution'. 

The rule of law, as Dicey has explained, is comprised of three basic tenets which are guaranteed to an individual in a legal system. Reflective of the nature and precincts of the legal system, the presence of these tenets determine whether a given legal system is inbuilt with an inherent protection for its subjects and thus whether the governance is based upon the rule of law. In the context of the British legal system, Dicey in his treaties describes the 'Rule of law' as under;
[First], no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in ordinary legal manner before the ordinary courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint ... [the rationale being that] wherever there is a discretion there is room for arbitrariness, and that in a republic no less than under a monarchy discretionary authority on part of the government must mean insecurity for legal freedom on the part of its subjects.
[Second], no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of ordinary tribunals ... [for] the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to its utmost limits.
[Third], We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public hearing) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts. 
Having stated so, Dicey further went on to summarize the principles governing the rule of law as under;
It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Englishmen are rule by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else. 
It means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; the 'rule of law' in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens from the jurisdiction of the ordinary tribunals; there can be nothing really corresponding to the 'administrative law' (droit administratif) or the administrative tribunals (tribunaux administratifs) of France. The notions which lie at the bottom of the 'administrative law' known to foreign countries is, that affairs or disputes in which the government or its servants are concerned are beyond the sphere of the civil courts and must be dealt with by special and more or less official bodies. This idea is utterly unknown to the law of England, and indeed is fundamentally inconsistent with our traditions and customs.
The 'rule of law', lastly, may be used as a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of the individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and the Parliament so extended as to determine the position of the Crown and of its servants; thus the constitution is the result of the ordinary law of the land.
Thus, according to Dicey, the rule of law relates to avoidance of arbitrariness in all forms of governmental action, equality of law and equal protection of laws; and the source of rights being the courts of law. Avid readers on Indian constitutional law would agree that these principles have more or less been incorporated in the Constitution itself, therefore ensuring that the country is governed on the lines as permeating 'rule of law' in every action. 

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