Thursday, July 17, 2008

On Rule of Law

Though the idea of the rule of law was not introduced by Dicey, he may be credited for popularising it. In his book Introduction to the study of law of the constitution (1885), he defended Britain’s system of an unwritten constitution and argued that this was a positive gain. Dicey summarised the rule of law under three heads.
1. Supremacy of the Law: No man could be punished or lawfully interfered with by the authorities except for violation of law. In other words, all government actions must be authorised by law. The rule of law requires both citizens and governments to be subject to known and standing laws. The supremacy of law also requires generality in the law.

2. Equality before the Law: No man is above the law and everyone, regardless of rank, is subject to the ordinary laws of the land. The keystone of the rule of law is the idea of the government of laws rather than the government of men. The keystone of the government of laws is legal control over human discretion.
3. Predominance of Legal Principles: There is no need for a bill of rights because the general principles of the constitution are the result of judicial decisions determining the rights of the private person.(in England) The doctrine of judicial precedent is at the heart of the common law system of rights and duties. The courts are bound (within prescribed limits) by prior decisions of superior courts. Adherence to precedent helps achieve two objects of the legal order. Firstly it contributes to the maintenance of a regime of stable laws. Secondly it ensures that the law develops only in accordance with the changing perceptions of the community and therefore more accurately reflects the morals and expectations of the community.
Rule of Law proposes that government should have restraints, not possess any arbitrary or discretionary powers, there should be legal controls over the government’s activities/actions and no one including government officials should be above the law. These principles if successfully attained within a society will result in national stability and security of citizens. There is a difference between Rule of Law and the Rule by the Law. Under the rule "by" law, law is an instrument of the government, and the government is above the law, therefore you cannot say law as supreme. In contrast, under the rule "of" law, no one is above the law, not even the government. The core of "rule of law" is an autonomous legal order. Under rule of law, the authority of law does not depend so much on law's instrumental capabilities, but on its degree of autonomy, that is, the degree to which law is distinct and separate from other normative structures such as politics and religion. As an autonomous legal order, rule of law has at least three meanings imputed by Dicey above.

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