The entire basis of the Administrative law is the doctrine of Rule of law

‘The entire basis of the Administrative law is the doctrine of Rule of law’

0.1 INTRODUCTION

Though it had its significance since early 17th century, the Ancient Greek philosophers such as Plato and Aristotle discussed it around 350 BC. Plato wrote: “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state”. Likewise, Aristotle also endorsed the concept of Rule of law by writing that “law should govern and those in powers should be servants of the laws.”

The given concept of rule of law remains uncertain & controversial. It is widely recognized that specialist literature has so far devoted little attention either to analytically defining the state characterized by rule of law from an institutional and normative perspective or to differentiating it from contiguous notions such as legal state, liberal state, democratic state, constitutional state with which it is erroneously or purposely defined. The sovereignty of law, whether it stems from an act of parliament or from the jurisprudential tradition of common law courts, is thus conceived & essentially used against the discretionary used as a prerogative of executive powers within an institutional framework that has been called “the reign of law & judges”

1.0 RULE OF LAW

The expression ‘Rule of Law’ has been derived from the French phrase ‘la principle de legality’, i.e. a Government based on the principles of law. It is implied by the state in the administration of justice. The Rule of law, according to Gamer, is of en used simply to describe the state le words, the term ‘rule of law’ indicates the state of affairs in a country where, in main, the law mules. Law may be taken to mean mainly a rule or principle which governs the external actions of the human beings and which is recognized and aloof affairs in a country where, in main, the law is observed and order is kept. It is an expression synonymous with law and order.

2.0.1 THE CONCEPT

In earlier times and in a few countries now, certain classes and individuals possessed special privileges and were judged by special law. The modern view is to apply the same law over all persons in the State and to give all persons equal rights and privileges for the protection of their human liberties. Democracy can remain only in a society of equals.

2.0.2 THE THREE RULES

The concept of equality of all persons before law is the basis of what is called the Rule of Law. The Rule was summarized by Dicey as follows:

The Rule of Law states that, “No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts.” (Dicey). In other words, there must be supremacy of law no one shall be punished except for definite breach of law and the breach of law must be proved in a duly constituted court of law.

No citizen can be arrested or imprisoned, unless he violates specifically any law of the country in force and is accused of a charge by the court. Thus the rule of law implies equal protection of law.

In the second place, Rule of Law means that, “No man is above law.” Every man whatever his rank or condition, is subject to the ordinary law of the State and amenable to the jurisdiction of ordinary tribunals. “What is law- legal right and legal obligation for me- must hold equally as such for all citizens.” (Dicey) in other words, Rule of Law means, Equality before the law,

Every citizen is subject to the ordinary law of the land and the citizen has to face trial in the same law courts, irrespective of his status or position in the society.

In the third place, the Rule of Law is the result of statutes and judicial decisions determining the rights of private persons. Thus the constitutional law of the country follows from the ordinary law of the land. So, the third meaning of the rule of law is that the general principles of the constitution are the result of juridical decisions determining file rights of private persons in particular cases brought before the Court. Dicey states that many constitutions of the states (countries) guarantee their citizens certain rights (fundamental or human or basic rights) such as right to personal liberty, freedom from arrest etc. According to him, written/ documentary guarantee of such rights is not enough. Such rights can be made available to the citizens only when they are properly enforceable in the Courts of law, For Instance, in England there is no written constitution and such rights are the result judicial decision.

2.0.3 COMMENTS

The Rule of Law is therefore, no respecter of persons. It is applicable to everybody (from Prima Minister to the convict and from the millionaire to a beggar). The judiciary must be independent and impartial if the Rule of Law can mean anything real. The British Constitution has developed through historical evolution on the basis of common law. The rights of citizens of England are not written in a special document (like Fundamental Rights or a Bill of Rights). They are specified in common law. If an ordinary citizen or the sovereign power interferes with the legal right of a citizen, the remedy is to be sought with the help of common law. Therefore, Dicey observes that the rights of the citizens have been protected by the ordinary law of the country and the Rule of Law.

3.0 ADMINISTRATIVE LAW

Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law. As a body of law, administrative law deals with the decision-making of administrative units of government (for example, tribunals, boards or commissions) that are part of a national regulatory scheme in such areas as police law, international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport. Administrative law expanded greatly during the twentieth century, as legislative bodies worldwide created more government agencies to regulate the increasingly complex social, economic and political spheres of human interaction.

4.0 CRITICISM- “THE EMERGENCE OF ADMINISTRATIVE LAW”

The three principles, which Dicey described in relation to the Rule of Law, have been criticized by many jurists. One of them is, “The emergence of Administrative Law”, which is explained as follows.

With the increase of constitutional complexities, the government departments have made many rules framed under various acts. This is known as Administrative law. There are also special tribunals for the settlement of professional disputes. At the time of Dicey (19th century Great Britain) there existed separate military courts and courts for churchmen. The executive department often uses the arbitrary and prerogative powers in day-to-day’s work and for the purpose of performing the administrative work applies the discretionary power in most cases. Therefore it is apparent that the Rule of Law is breached and the power of the government is far-reaching.

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’ or the administrative tribunals 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 the traditions and customs.

5.0 APPLICATION OF THE DOCTRINE IN ENGLAND

Though, there is no written constitution, the rule of law is applied in concrete cases. In England, the Courts are the guarantors of the individual rights. Rule of law establishes an effective control over the executive and administrative power.

However, Dicey’s rule of law was not accepted in full in England. In those days, many statutes allowed priority of administrative power in many cases, and the same was not challenged better c the Courts. Further sovereign immunity existed on the ground of King can do no wrong’. The sovereign immunity was abolished by the ‘Crown Proceedings Act, 1947. Prof. Dicey could not distinguish arbitrary power from discretionary power, and failed to understand the merits of French legal system.

6.0 CONCLUSION

Finally, the Administrative law is the rules and regulations that govern the agencies of the government. Whereas, a rule of law contains three principles or it has three meanings supremacy of law, equality before law and predominance of legal spirit. They are intensely related. But they are legally distinct in real life.

7.0 REFERENCES

· http://wiki.answers.com/Q/Defining_doctrine_of_the_rule_of_law

· http://www.lawyersclubindia.com/forum/Doctrine-of-rule-of-law–43554.asp#.UTMi1TDfAzQ

· http://www.oycf.org/Perspectives2/5_043000/what_is_rule_of_law.htm

· http://www.aial.org.au/Publications/webdocuments/Procedures/AIALRuleofLaw.pdf

· http://en.wikipedia.org/wiki/Administrative_law

· http://en.wikipedia.org/wiki/Public_law

· http://twocircles.net/legal_circle/doctrine_rule_law_kamaluddin_khan.html

· https://www.lawyersnjurists.com/course-materials/constitutional-law-course-materials/the-rule-of-law/

· http://legalperspectives.blogspot.com/2010/03/rule-of-law-dicey-revisited.html

· http://twocircles.net/legal_circle/doctrine_rule_law_kamaluddin_khan.html

· http://www.lawyersclubindia.com/forum/Doctrine-of-rule-of-law–43554.asp#.UTMi1TDfAzQ

[1] See, Book: “Commercial Law including Company Law and Industrial Law(Business Law)”, pg.4

[2] See, Book: “Commercial Law including Company Law and Industrial Law(Business Law)”, pg.5

[3]See, http://www.aial.org.au/Publications/webdocuments/Procedures/AIALRuleofLaw.pdf

Disclaimer:

The information contains in this web-site is prepared for educational purpose. This site may be used by the students, faculties, independent learners and the learned advocates of all over the world. Researchers all over the world have the access to upload their writes up in this site. In consideration of the people’s participation in the Web Page, the individual, group, organization, business, spectator, or other, does hereby release and forever discharge the Lawyers & Jurists, and its officers, board, and employees, jointly and severally from any and all actions, causes of actions, claims and demands for, upon or by reason of any damage, loss or injury, which hereafter may be sustained by participating their work in the Web Page. This release extends and applies to, and also covers and includes, all unknown, unforeseen, unanticipated and unsuspected injuries, damages, loss and liability and the consequences thereof, as well as those now disclosed and known to exist.  The provisions of any state’s law providing substance that releases shall not extend to claims, demands, injuries, or damages which are known or unsuspected to exist at this time, to the person executing such release, are hereby expressly waived. However the Lawyers & Jurists makes no warranty expressed or implied or assumes any legal liability or responsibility for the accuracy, completeness or usefulness of any information, apparatus, product or process disclosed or represents that its use would not infringe privately owned rights. Reference herein to any specific commercial product process or service by trade name, trade mark, manufacturer or otherwise, does not necessarily constitute or imply its endorsement, recommendation or favouring by the Lawyers & Jurists. The views and opinions of the authors expressed in the Web site do not necessarily state or reflect those of the Lawyers & Jurists. Above all, if there is any complaint drop by any independent user to the admin for any contents of this site, the Lawyers & Jurists would remove this immediately from its site.