Rule of Law
According to the Greek philosopher Aristotle, man is the most intelligent animal in the world. But when separated by law and justice, the most brutal animal in the world is man. Law is therefore accepted in modern times as the supreme tool that exists in every society. Going back to the 21st century, the rule of law can be identified as one of the basic concepts of law in the 17th century. In particular, this can be seen as a concept that emphasizes the supremacy of the law. However, the concept of the rule of law has evolved over time and is still evolving. As a result, although constitutional law is paramount, the concept of rule of law is discussed in every other field of law and is now more of a practical application than a concept. Moreover, according to modern constitutional studies, it has become a basic legal tool that guides rulers to protect human rights. Therefore, this article is intended to discuss the basics of the rule of law.
The origin of the concept of the rule of law
Considering the very ancient historical foundation, the concept of the rule of law can be said to have originated as far back as the 13th century. During the reign of King Henry III, one judge referred to himself as “The king himself ought to be subject to god and law, Because law makes him king”, but by this time the word “rule of law” had not been used to refer to this concept. It has been stated that the rule of law in association with India began through the Upanishad. That is, the idea that the law is the king of kings has been put forward. That is, it is clear that from antiquity the ruler also accepted the need to obey the law. Criticizing the concept of the ideal state put forward by Plato in his philosophical commentary, Aristotle states that “no matter how philosophical, the rule of law is more appropriate than the rule of an individual.”
According to modern opinion, the concept of the rule of law was formed by the British constitutional association. That is, to control the power of the king in the disputed situation between the crown and parliament in the 17th century. AV Dicey was the first to put forward a systematic idea of the rule of law among all legal opinions. Through “Introduction to the study of the Law of the Constitution”, published in 1885. He argued that Britain’s constitution was based on the rule of law. It is now accepted that the concept of the rule of law originated primarily through the ideas of AV Dicey in the 19th century.
According to AV Dicey, what is the rule of law?
According to AV Dicey, the concept of the rule of law enabled the British people to enjoy greater freedom. In developing the concept of parliamentary sovereignty and the rule of law, AV Dicey identified the rule of law as one of the two fundamental tenets of the British Constitution. According to AV Dicey, the rule of law is based on three basic principles.
- Ordinary law is considered supreme. Citizens can be punished only if they violate ordinary law. Mistakes should be punished through ordinary courts created on the basis of the prevailing ordinary law. That is, if a citizen commits an offense, there is no possibility of enacting new laws or establishing special courts to judge it. Citizens are free to do whatever is not prohibited by ordinary law.
- Everyone is equal before the law and the law is fair to all. That is, no one is privileged before the law.
- Citizens’ rights are not guaranteed by law. That is, it is inherited by instinct and norms. Citizens’ rights should be guaranteed and maintained by government legislation.
These ideologies are designed to fit the concept of the contemporary police state. That is, the role of the state should only be to maintain law and order. This was also due to the fact that Dicey was a staunch liberal. But with the development of the social order came various criticisms of Dicey’s ideology.
Criticisms of Dicey’s ideology of the rule of law
- Dicey’s theory is based on the ordinary law of contemporary England. Critics point to this as a weakness. That is, the question arises as to how appropriate it would be if a concept that is universally applicable was built based solely on Britain. During this period, for example, in Europe as well as in other states, in addition to the common law, administrative and administrative courts also functioned. Dicey states that this is different from ordinary law, that it is a human right through such a law. In practice, however, administrative courts in France functioned to protect the rights of the people.
- As Dicey describes, a special privileged group is created under the eyes of the administration. But it can be pointed out that this is not correct for two reasons.
- Administrative law does not always apply and is limited to those who are employed. Therefore, a privileged situation is not created.
- Administrative law, however, operates subject to democratic forces. Therefore, even under administrative law, there is no room for over-activation.
- Another criticism of the first view is that this concept does not apply to modern welfare states. As the role of the state has expanded, so have the social problems that the government has to solve, and ordinary law alone is not enough to find solutions to them. Therefore, in addition to ordinary law, orders issued by the executive are also legally enforceable. Examples include the various regulations, gazette notifications, etc. issued by the executive in many states today under the Covid 19 pandemic. This proves that Dicey’s concept of the rule of law has changed a lot more than he saw it.
- Critics have also argued that the notion that the law is the same for all is only logically correct. This is due to the influence of the legal status on the property system. That is, some lawyers have argued that not everyone is equal before the law in practice. The main views expressed in this regard are as follows.
“The idea that in a capitalist society everyone is equal before the law is like the idea that in such a society, five star restaurants are open to everyone.”
- The idea that human rights are not the result of the law has also been criticized. In many countries, human rights are based on law, not social evolution. For example, in India as well as in Sri Lanka, human rights are enforced through constitutional law. In countries such as France, the United States and the United States, human rights have been recognized through the constitutions that have been built up after social revolutions.
Over time, Dicey’s ideology for the rule of law became questionable in the social, economic, political, and legal context of the social system as a whole.
Subsequent development of AV Dicey’s concept of the rule of law.
This section deals separately with the views expressed by each ethicist on the rule of law and the issues discussed at the Bar Conference. Each of these factors contributed to the development of the concept of the rule of law.
- Wade & Phillips, Constitutional Law: “The laws of representation should provide effective control, especially when imposing penalties. The power to protect human rights should be vested in an independent and impartial judiciary. And human rights in the state should be protected by common law.” This shows that the rule of law is linked to the concept of independence of the judiciary. This is more accessible to the modern and has often played a large role through interpretation by an independent judiciary to protect the rule of law.
- Ivor Jennings: “The powers of the government other than the powers of Parliament should be adequately defined by specific laws and should include restrictions.” Through this ideology it can be argued that the rule of law is linked to democracy.
- The following are some of the key features of the rule of law at the International Law Conference held in 1956.
- Personal security assurances.
- Non-enactment of laws restricting fundamental rights.
- Protecting Press Freedom
- Not violating religious freedom.
- Ensuring the right to education.
- Ensuring freedom of political activity.
- The International Law Commission held in New Delhi in 1959 sought to give a core value to the rule of law. The decisions taken at the conference are as follows:
- Legislature and the rule of law
- Executive and the rule of law
- Judiciary and the rule of law
- The criminal process and the rule of law
A study of the way in which the above facts about the rule of law have evolved confirms that attempts have been made to extend this concept to a more democratic approach.
The Constitution and the Rule of Law
Article 14 of the Constitution of India states that, “Every man is equal before the law, no one is above.” This cannot be described as a mere provision of the Constitution. The reason for this is that through certain judgments, this is recognized as a concept under the basic structure of the Constitution. This is clear from the facts given in the case of Indiara Neru Gandhi vs Raj Narain. According to the Kesavananda Bharati vs State of Kerala judgment, it is not possible to amend matters affecting the very essence of the Constitution. Therefore, the rule of law is a significant turning point in the Constitution of India. The creative interpretation approach in the Indian judiciary has been instrumental in furthering this concept. In the case of State of Bihar vs Sonawathi Kumari, the view that the government executive and other authorities are bound by the rule of law is an inseparable link. As stated in the case of Som Raj vs State of Haryana, the basis of the rule of law is based directly on the Constitution without arbitrary power. Accordingly, the rule of law is protected within the basic law of India itself. The other point is that since the Constitution is the fundamental basis on which every law is governed, it can be argued that the rule of law is embedded in every law.
The rule of law is enshrined in Article 12 (1) of the Constitution in relation to the Constitution of Sri Lanka. In addition, other constitutional provisions have been incorporated to address the constitutional rule of law. Similarly, the Sri Lankan judiciary has uncovered various issues related to the rule of law through various judgments. In particular, the concept of the rule of law is being used in modern times as a tool to protect the rights of individuals under constitutional law. Take, for example, the recently successful Ravindra Gunawardhana Kariyawasam vs Central Environment Authority verdict.
The rule of law was as important as fundamental rights, along with the fundamental issues raised at the Delhi Conference in 1959. In logical analysis, it can be unequivocally accepted that the rule of law is also linked to fundamental rights, as the basis of any concept of law is the affirmation of law and justice to people. There is a need to give more importance not only to civil and political rights but also to social, economic, educational and cultural rights in order to protect human dignity, especially in relation to the legislature and the rule of law. It can be argued that Article 21 of the Constitution of India is a fundamental basis for this concept. This is exemplified by the provisions relating to fundamental rights in Chapter III of the Constitution of Sri Lanka.
It is clear from the study of the modern situation that the concept of the rule of law is now connected to every field of law. But this is a concept that has even more potential for development. With the development of constitutional democracy, the rule of law is a concept that carries more meaning than the supremacy of the law. Therefore, the rule of law has been identified as a fundamental concept that must be achieved and achieved by a government that seeks to affirm democracy. The need for this concept is likely to increase in the future as public authorities, including the modern executive, are empowered with immunity. That is, the rule of law is a key value of legal freedom that can be developed over time.
Author: Tharuka Hettiarachchi,
Faculty of Law, University of Colombo, Sri Lanka