What is the rule of law?
The rule of law is the ultimate justification for the existence of a legitimate political system. It is a necessary ingredient to provide a governmental system with a moral justification of its laws. When the government can show that their action is legal, in nature it justifies that action no matter how wrong it might seem. At the same time, laws have to be created, advocated and exercised in a fair and reasonable way.
In its broader sense this means that people should obey the law and be ruled by it. In legal theory it is read in a narrow sense i.e that the government should be ruled by law and subject to it. This is often expressed as government by law and not by man because this distinction differentiates the concept of the rule of law against that of rule by law.
The concept rule of law is capable of different interpretations by different people. The rule of law may be interpreted either as a philosophy or political theory, or as a procedural device. In fact, the concept rule of law has gradually developed through different philosophers like Aristotle, Cicero, Karl Marx, Joseph Raz and A.V. Dicey.
Greek philosopher Aristotle ( 384-322 BC) stated in his book ‘The Politics’ that ‘the rule of law is preferable to that of any individual’. The appeal to law as a control over naked power has been apparent throughout history. At a philosophical level, whether theological or secular, instructs that the power of man is not absolute, but is rather controlled and limited by the requirements of a higher law. Traditionally it was thought that over and above all man-made law (positive law), there is a universal law (natural law) which applies to all men everywhere and at all times.
An early-and famous-formulation of the dictates of natural law was offered by Cicero (106 – 43 BC):
True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting: it summons to duty by its commands, and averts from wrongdoing by its prohibitions. We cannot be freed from its obligations by Senate or People, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one ruler, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge. (De Republica, cited in d’Entreves, 1970, p-25).
Karl Marx:
Marxism insists that law represents the interests of the powerful within society. In fact, the law serves not to restrict government and protect individual rights but rather to conceal the injustices inherent in the capitalist system. Accordingly, the rule of law represents no more than a false idealization of law designed to reinforce the political structure and economic status quo in society.
Professor Joseph Raz approaches that :
The rule of law is a political ideal which a legal system may lack or may possess to a greater or lesser degree. It is also to be insisted that the rule of law is just one of the virtues which a legal system may possess and by which it is to be judged. It is not to be confused with democracy, justice, equality, human rights of any kind or respect for persons or for the dignity of man.(1979, p 211).
A.V. Dicey:
The British model of the rule of law owes much to Professor Albert Venn Dicey. In his book ‘Introduction to the Study of the Law of the Constitution’ (1885), Dicey suggested that the rule of law has three meanings:
- No punishment may be inflicted other than for a breach of the law.
- Irrespective of rank and status all are equal under the law.
- Rights and freedoms are best protected under the common law (rather than by a formal Bill of Rights).
1) No punishment may be inflicted other than for a breach of the law.
Dicey believed that individuals should not be subject to wide discretionary powers. It is now common for discretionary power to be granted on a Minister by Parliament. He felt that wherever there is discretion, there is room for arbitrariness. However, in contemporary Britain, Ministers (and other executive bodies) are often given wide discretionary powers like `to act as he thinks fit' or `if he is satisfied'. It seems that such discretionary powers are often virtually unreviewable. Therefore, Dicey favoured a system of government based on laws (rules) and not men (discretion), and Geoffrey Wilson claims that this principle that `government should not have arbitrary power' gives the rule of law `real force today'
Dicey further condemned the issue of retrospectivity. Retrospective legislation is legislation which relates to a situation which occurred prior to its enactment. Remember that Parliament is supreme, so it has the power to pass retrospective legislation. In Burmah Oil Co. Ltd v Lord Advocate [1965] AC 75, where compensation was awarded to an oil company whose installations had been destroyed to prevent them falling into enemy hands. However, no compensation was paid due to the retrospective effect of the War Damages Act 1965. This statute, which was passed following the House of Lords decision, abolished any right at common law to compensation from the Crown in respect of the destruction of property on the authority of the Crown during or in contemplation of war.
On the other hand, the Diceyean approach is no longer relevant in the late 20th century
As K.C. Davis observes: the elimination of all discretionary power is both impossible and undesirable. The sensible goal is development of a proper balance between rule and discretion.
2 ) Irrespective of rank and status all are equal under the law:
[The rule of law] means… 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 or from the jurisdiction of the ordinary tribunals… (Dicey, p. 202).
Dicey is not arguing here that all persons have equal powers and rights.
Dicey suggested that all citizens should be treated equally before the law. Therefore, as long as laws were applied equally, without irrational bias or unreasonable distinction, this aspect of the rule of law would be complied with.
No matter how attractive Dicey's theory of equality before the law may appear in theory, there are obvious exceptions to it in practice. Some of these exceptions include: (a) The powers of the Queen, (b) Diplomatic immunity, (c) High Court judges, (d) Parliamentary privilege, (e) Special powers, (f) Homosexuality.
3) Rights and freedoms are best protected under the common law (rather than by a formal Bill of Rights).
Dicey here revealed that the rights to liberty and to assembly are determined by the courts in the course of ordinary legal proceedings. This reflects the (now abandoned) traditional view that citizens are free to do whatever the law does not prohibit – they are what remains of the notion of `freedom unrestrained by law'. However, this places citizens in a fragile position: in order to know, for example, what freedom of speech entails, citizens must understand all the legal restraints on freedom of expression – the law relating to sedition, to race hatred speech, to support for terrorist organisations, to speech likely to cause a breach of the peace, the law of defamation and so on. Add all the restrictions together and seek out the remainder, and that remainder is freedom of speech.
However, nowadays it is principally Parliament which defines freedoms and rights, as for example in the Equal Pay Act 1970, the Sex Discrimination Act 1975 and the Race Relations Act 1976.
The implication of the Rule of Law in the 21st Century
Certain features of the rule of law which have been adopted and applied in the 21st century, are now of universal application. These are: (a) the legislature; (b) the executive; (c) the judiciary; and (d) the criminal process.
(a) The legislature: There is a right to representative and reasonable government. The legislature must not pass discriminatory laws with reference to individuals or minority groups. Lord Bridge, in X v Morgan-Grampian Ltd [1991], established a link between the legislature and the rule of law: `In our society the rule of law rests upon two foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen's courts in interpreting and applying the law.'
b) The executive: there is a need for adequate controls to prevent an abuse of power by the executive. All governments should be subject to independent judicial control and this is illustrated by cases, such as M v. Home Office (1994), where Lord Templeman stressed the powers of the courts ‘for the purpose of enforcing the law against all peoples and institutions’. In the UK remember that, in addition to legal controls, there are also political checks (e.g, constitutional conventions, select committees, questions in parliament etc.) which operate to limit the powers of the executive.
(c) The judiciary and the legal profession
The judiciary should be independent. There should be proper grounds and procedures for, the removal of judges. In the UK judges are appointed by the executive and 'appointments to the most senior positions are made by the Crown on the advice of the Prime Minister. The Lord Chancellor advises the Crown on the appointment of High Court and circuit judges, as well as recorders. However, there is no requirement that these nominees must be scrutinized by the legislature, and judges of the High Court, Court of Appeal and Lords of Appeal in Ordinary can only be removed by the Queen, following a resolution passed by both Houses of Parliament. The International Commission of Justice has stated that the rule of law also means that there should be an organised, responsible and autonomous, legal profession.
(d) The criminal process
The right to a `fair trial' includes: certainty of the criminal law, the presumption of innocence, restrictive powers of arrest, and rights of appeal. Internationally recognized standards for a fair trial under Art. 6 of the European Convention on Human Rights.