Introduction Rule Of Law Explained Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Because of different opinions and ideas scattered throughout the literature about the concept of rule of law, it is not possible to give a concrete definition to the term. However, it is based on some principles that are clear and logical. The basic underlying principle can be, in simplest words, described as: No one is above the law. The most obvious and important implication of this principle is that no governmental authority is legally authorised to do something unless supported by some law of the land. There has been no consensus on what actually the rule of law entails, leaving this fundamental foundation of law ambiguous and uncertain. The term ‘rule of law’ is vague because there are numerous ideas identified as the rule of law which leads one to the confusion. De Smith in his book argues:

‘The concept is one of open texture; it lends itself to an extremely wide range of interpretations’ [1] 

In my discussion, I will attempt to describe different views about the concept of rule of law by the leading scholars and then move on to critically analyse their viewpoints to reach a conclusion on whether they can be reconciled with the today’s world and can be termed as meaningful.

Opinions

Dicey

Dicey did not invent the idea of rule of law but he promoted it. His idea comprised of three principles:

The first principle established that no one could be interfered with by the authorities without the legal authority to do so and the government did not possess ‘wide discretionary powers’. In Entick [2] , the court did not recognize the necessity of the measure when Secretary of State ordered the search of Entick’s house without relying on any legal authorisation.

The second principle established that the official bodies and private citizens should be treated alike, unlike the Droit Administratif system in France.

The third principle established that the common law developed by the judges provides better protection to the individual rights than the constitution itself; therefore it is the common law that is the basis of the civil liberties.

Joseph Raz

Raz, a staunch advocate of the formal rule of law as opposed to substantive one, believes that it is vital that everyone in the system knows his position in the state. He maintains that the rule of law is the ‘faithful application of law’ and insists on ‘an open, public administration of justice, with reasoned decisions by an independent judiciary, based on publically promulgated, prospective, principled legislation’. [3] Raz emphasized on the role of courts in ensuring that the legislation is principled because they are well-placed to ensure the protection and coherence of these principles. Furthermore, he gives the legislature a role to play (to make principled legislation) because of his belief in pluralism. He takes a departure from the substantive rule of law and advocates that the laws much be sufficiently clear and the independent judiciary must give the citizens an access to the courts.

Analysis: A Reality Check

The question whether Dicey is right or not has been a matter of debate. Each side of the opinion is supported by eminent writers. One of the well-known views is that the Diceyan model of rule of law is a matter of common sense: the government and the official bodies must follow the law and there is no use of over-emphasizing it.

The main criticism is that the Dicey’s concept of rule of law is logically inconsistent with the idea of the supremacy of parliament. The idea of the supremacy of Parliament states that:

The parliament can make or unmake any law

No parliament can bind the future parliament

An act of parliament cannot be questioned by the court

If the parliament can make any law, it is still the law and the courts cannot question it. This seems inconsistent with the Diceyan concept of rule of law that the official bodies have to be legally authorised for what they do. When the parliament makes the law itself, the need to worry about the parliament following the rules it created by itself seems pointless. However, even if we assume that the need remains there, there have been instances in recent history that have revealed that the official bodies can surpass the need for legal authorization by still acting in a legal manner.

In Burmah Oil [4] , HL ordered compensation to be paid by the government to Burmah Oil for the wartime destruction. The decision was seen as inconvenient for the government and as a result War Damage Act 1965 was introduced to reverse the decision. More recently, the Deregulation and Contracting Out Act 1994 granted the government ‘wide discretionary powers’. It seems that Dicey had thought of Parliament as a restrictive body for the government but in modern times a government having its majority in Parliament is less likely to restrain itself.

Moreover, the very underlying principle that ‘no one is above the law’ is not followed by the basic idea of parliamentary sovereignty: it can make and unmake any law. The fact that the Parliament can make or unmake any law signals that it is ‘above’ the law. The idea that everyone should be treated equally, be it official bodies or private citizens, is also difficult to absorb in today’s world. Access to legal aid is costly and only wealthy can afford the quality lawyers, whereas the lower-middle income groups are neglected. It is therefore not practical to assert that equality ‘must’ be maintained in order for the rule of law to survive, and yet term rule of law to be the soul of the system.

One may argue that the rule of law serves as a check on the parliamentary sovereignty, but a check on parliament destroys the very concept of sovereignty, for sovereign has to be free of checks and ultimate authority. However, Lord Hope said:

"the rule of law enforced by the courts is the ultimate enforcing factor on which our constitution is based".  [5] 

I respectfully disagree with this argument because if the ultimate enforcing factor is the rule of law, it means that it bypasses the sovereignty of parliament as well. And if it does, the parliament doesn’t remain sovereign anymore. Therefore, the rule of law is incompatible with the idea of supremacy of Parliament, an institution which makes the laws.

Conclusion

It is evident from the case law that the idea of rule of law has been taken far too traditionally and has lost its contemporary meaning. As in Kelly v Faulkner it was held that the legal requirements of valid arrest must be observed even in the times of emergency. The state of rule of law today seems to have blurred the notion. It is time for respectable judges to clearly define what it means and how it can be reconciled with the holy concepts of parliamentary sovereignty. The reconciliation, it seems, is important as although the haziness of the idea of rule of law exists, it has also achieved some of its goals.