Measure the essential problems with detailed reference to the state that challenging the idea of the “Rule of Law”.
The “RULE OF LAW” is the uppermost law of manhood. All other laws are under subject and cannot deny with the “rule of law.” This is the most elementary of all laws verifying- the maximum rational accomplishment of mankind. The “rule of law” is an unselfish reality which agrees the most treacherous marauder on the world to live organized in amity and agreement, collaborating for shared egotism and evolution.
The rule of law is a prehistoric notion, and was deliberated by Ancient Greek truth-seekers such as Plato and Aristotle around 350 BC. Till then the perception of the rule of law has been absorbed by a number of writers, philosophers and others. Later on, in 1885, Victorian era Professor A. V. Dicey, in his graft ‘THE LAW of the Constitution’ proposition is attributed for propagating the rule of law and till now his propositions are deliberated as basic rule of the lawful.
Rule of law has voyaged extreme, with the channel of time everything has altered; here the most decisive challenge comes – in this 21st century is the rule of law satisfactory enough to confrontation all our challenging concerns? The fundamental notion of rule of law is still upended in 18th century, but time has reformed a lot so does the society and its atmosphere. It is perilous to weigh the changes and even problematic to instigating new rules concerning civilizations necessity.
This assignment has been divided into 3 sections. The first section recapitulates the complete impression of this assignment. The second section exposes an overall hint about rule and its allegations. The third section travels the notional and concrete link between primordial rule of law and the encounters face its essential idea in 21st century. Lastly the last section considers the existing variations of rule of law.
Law is a comprehensive term to label. Diverse people have dissimilar clarification about LAW. In most universal and ample sense, law indicates a rule of action, and is applied comprehensively to all classes of deed; whether living or lifeless, lucid or illogical. In its more narrowed sense, law symbolizes the rule, not of activities in general, but of human exploit or behavior. Law is a system of guidelines and parameter, usually obligatory through a set of establishments or sovereign authority to maintain arranged synchronicity.
Importance of Law in Our Life
Law is the values which safeguard that people can appreciate all the good things in life. Law accomplishes some indispensable purposes. Law does not only uphold order, it marks order conceivable. Law aids the key rudiments in the nurturing and conservation of a democratic radical system. Law delivers a major restriction on the implementation of influence by the partisan management and is the chief form of fortification against dictatorship. Law provides the background for classifying human privileges and for shielding those rights. Law distributes authority and at the same time administers the application of control.
Laws are instructions that may prohibit entities to complete various classes of movements or that may execute various responsibilities on personages. Laws may require entities to experience chastisement for wounding other entities. Law stipulates how agreements should be prescribed and how authorized documents should be shaped. Law postulates how legislatures are to be accumulated and how courts are to function. It also agree how new laws are to be implemented, performed and old laws are to be changed. Law exerts power over individuals by imposing penalties who do not obey their duties or obligations. However, not all laws may be regarded as coercive orders, because some laws may grant powers or privileges on individuals without imposing duties or obligations on them. Most importantly, laws may also differ from country to country based on culture, norms, values and the commands of sovereign of the country.
Rule of law:
The “RULE OF LAW” is called supremacy of law, means that the law is above everyone and it applies to everybody. Whether governor or governed, monarchs or reigned, no one is beyond or excused from the law, and no one should award segregation to the application of the law. [] The purpose of “the rule of law” is to decrease conflict. Rule of law has made, so that people can animate in concord and collaborate with each other by the minimization of struggle under rule of law.
To talk about rule, we have more than two thousand years of writing and thinking about the rule of law to inform us – this is not a new, undeveloped set of ideas. Philosophers and scholars from different eras have identified value those hold closely by societies throughout histories. The meaning of the rule of law is building on the common themes of ancient and modern writers, philosophers and jurists, their definition follows the ideal characteristics of how a society should governed under the rule of law. []
The rule of law, in the purist sense, is an ideal, a goal, something to be strived for. As an ideal, it is never fully achieved. Its presence or absence should be judge in relative terms; what is possible in an advanced western democracy may not be possible in a developing country. No country may rightfully claim perfect adherence to these ideals. The rule of law should be viewed as a lodestar to which countries can turn for guidance now and in the future. These should be our most fundamental value.
The rule of law cannot be created through an act of will, weather it is the ultimate justification of political system of the state. Law should be accepted by everyone and beneficial for everyone.
The concept of Rule of Law – Ancient View
An ancient idea of rule of law has been interpreted by different people, either by philosophical or political theories. Gradually the concept has developed differently through different philosophers of modern time such as- Aristotle, Cicero, Karl Marx, Joseph Raz, and A.V. Dicey. Among them, Victorian era Professor A. V. Dicey, in his work THE LAW of the Constitution (1885) proposition is credited for popularizing the rule of law, so we are considering his proposition as the base.
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.
Ancient rule of law in modern world
Linking Dicean theory with contemporary world does not go together. There is no uncertainty that, Dicey’s view makes a worth decision about what the gratified of law should be but with the route of time it is no longer pertinent in today’s standpoint for number of explanations.
Dicey’s first concept of rule of law:
Primarily, Dicey alleged that entities should not be topic to varied discretionary powers. In other way, no man could be reprimanded or legitimately hindered by the ruling classes except for breach of law. So, before penetrating any law there must have laws and all administrative exploit should be evidently outlined by law.
Dicey’s strongly expressed views there is nothing, in theory, to stop Parliament enacting legislation providing ministers, police officers, or other executive officers with wide powers to interfere with the rights and liberties of citizens []. So, according to Dicey, a minister will often be given the power to determine an issue or grant a privilege, the power to be exercised ‘if the minister sees fit’, now here is the challenge that, in reality how to determine having the privileged power, the minister will not misuse it, as he is not bound to give answer to anybody. That is exactly what ministers used to do. In Bangladesh, it is common practice for the Ministers to grant any rule by Parliament. Wherever they felt that there is discretion, there is room for arbitrariness [].
That is why, in the later part of the 20th century, in parliamentary democracies organized along with the British lines, theories about the rule of law have had to deal with a changing relationship between the legislature and the executive. Parliamentary sovereignty in some societies support the proposition that, the executive must be, controlled by parliament. By the late 20th century, the notions of separation of powers and judicial independence first came. Principles of separation of powers can be traced to the work of Montesquieu. They have found their most elaborate governmental expression in the Constitution of the United States of America with its system of checks and balances between the three separate branches of government – legislative, executive and judicial []. It implies whatever the law accepted by the parliament it has to go to the courts and it is for the courts to say whether the acts of the executive government are lawful. The judicial has the power to review of the both legislative and executive actions are fundamental element of the rule of law []. Though, it must be noted that, this is a importance of the acceptance of central Constitution. Formerly it has not been seen as a necessary element of the rule of law and, subject to some restrictions, State courts, and Government organs of government generally, do not necessarily reflect this separation of power []. At the present, because of this, the centralized and the State governments powers are limited, now if a minister, or any other public authority, is found to have abuse a statutory discretions or other power upsetting the public, the courts can, through the mechanism of judicial review, quash the decision on the grounds that it is out with the discretion vested in the decision maker. Along with it, Dicey’s quandary of fare legislation- which basically means that the personal freedom or property of an individual can only be restricted with by the State if the State can point to a specific and definite law established before the courts. But can this be considered to be correct? []. For example, the police can arrest a person upon reasonable suspicion of having committed an arrest able offence. Dicey’s police of power concept are no longer relevant in the late 21st century [].
Dicey’s second concept of rule of law:
Secondarily, no matter how striking Dicey’s theory of equality before the law, may give the impression in theory, but there are understandable exemptions to it in exercise. Dicey said no man is above the law and everyone, notwithstanding of rank, is subject to the ordinary laws of the land []. Nonetheless, for Dicey, equality means there must be one law appropriate to everyone [] but Dicey did not disagreeing here that, all persons have equivalent supremacies and civil rights. Dicey recommended that all citizens should be preserved equally before the law, but in authenticity we can see, the State and its contraption, is in some way, superior to conventional citizens. It has influences that citizens don’t. Consequently unless the common law is instigated in such a way that courts do not comply to the policymaking, the state- and are sovereign of it, the State unvaryingly become a judge in a case concerning itself [].
The “rule of law” cannot leave any exacting group out from the custody, as this group would ultimately lead all others, which has confirmed by chronological experience, to site example some of these exceptions include: (a) The supremacies of the Queen, (b) Ambassadorial immunity, (c) High Court judges, (d) Legislative privilege, (e) Special powers, etc.[] But according to the rule of law, control of the law cannot be entrusted to some, it must be commended to all. Then why these cases are inversely treated than others? Consequently, the “rule of law” must be a modest metaphysical statement of what are fairness and not justice easily understood and agreed by all men. This only allows all to see that, the law is just and ensure that righteousness is done, to guard against injustice, but practically it is different.
Dicey’s third concept of rule of law:
Finally, there is no need for a bill of rights because the wide-ranging philosophies of the constituents are the consequence of jurisdictive decisions determining the privileges of the private person. Outmoded view was that, citizens are free to do whatever they like to do except they do not breach the law. But it was not mentioned clearly where to bound and what deed may cause to break the law. So, In order to know, for example, what liberty of speech necessitates, citizens must comprehend all the legal limitations on freedom of expression – the law relating to remonstration, to race abhorrence speech against the government[], to support for extremist organizations, to speech likely to cause a breach of the peace, the law of slander and so on.[].
However, nowadays Dicey’s this all-purpose recommendation does not make any clear postulation to any status quo. Rule of law should be more exact, detailed and should be recognized by everybody because blurred and uninformed manner leaves room for discernment. It necessitates that pronouncements should be made by the submission of identified principles and rules and in general, such decisions should be predictable and the citizen should know where he stands; a decision without any principle or rule is capricious and is the antithesis of a decision in accordance with the rule of law[] [].
In 1998, for the first time the Human Right Act has been made, this can now be cited as the basis for a number of fundamental human rights in English law, such as- the right to life, liberty of the person, freedom of expression and privacy. Under the Human Rights Act 1998 the courts will be required to interpret legislation so as to ensure conformity ( so far as is possible) with the Convention rights protected by the 1998 Act. Thus the courts will still have to regard to basic concepts of ‘legality’ in defining whether result should be given to legislature that encroaches on private authorization [].
“RULE OF LAW” someway deliberates the entity’s facets and ethics or dogmas, where a list of connoisseurs enlightened the concept olden days. Listing down the law does not guarantee the situational disagreements. For me, that we’re sanctified to live in a representative country and have to tail certain rule of laws, whether the principal matters can transfer us as this moment contingent on the dissimilar circumstances, or does Dicey’s theory subsidized the modern termination we just can say no for our applied decision.
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[] Accordingly, Richard A Epstein, New Zealand Business Roundtable, PO Box 10–147, the Terrace, Wellington, New Zealand. http://www.nzbr.org.nz.
b) The law is known, stable, and predictable. Laws are applied equally to all persons in like circumstances. Laws are sufficiently defined and government discretion sufficiently limited to ensure the law is applied non-arbitrarily.
c) Members of society have the right to participate in creation and refinement of laws that regulate their behaviors.
d) The law is just and protects the human rights and dignity of all members of society. Legal processes are sufficiently robust and accessible to ensure enforcement of these protections by an independent legal profession.
e) Judicial power is exercised independently of either the executive or legislative powers and individual judges base their decision solely on facts and law of individual cases.
[] To attain this fundamental aim of the state, the constitution has made substantive provisions for the establishment of a polity where every functionary of the state must justify his action with reference to law. ‘Law’ does not mean anything that Parliament may pass. Arts.27 and 31 have taken care of the qualitative aspects of law.
(Mahmudul Alam, Book: Constitutional Law of Bangladesh, 2nd Ed.Page 58-59)
[] The Broken Hill Proprietary Company Ltd v Dagi  2 VR 117 at 204; Finn, “A Sovereign People, A Public Trust” in Essays on Law and Government Volume 1: Principles and Values, (1995) at 19-21.
[] In Burmah Oil Co. Ltd v Lord Advocate  AC 75, where compensation was awarded to an oil company whose installations had been destroyed to prevent them falls 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.
[] Dicey’s first concept of law is reflected in such a way in which police powers have been codified in statutes such as the Police and Criminal Evidence Act 1984 (PAGE). Some police officers might think their task would be much easier if they had an untrammeled power to stop search, arrest and detain anyone they feel like investigating. If such were the case the citizen would have very little protection from the arbitrary abuse of power. Instead PAGE specifies the preconditions that have to be satisfied before police powers of arrest etc can be exercised. Typically an officer must have reasonable grounds for suspecting certain facts before exercising powers such as the power to arrest. PAGE also contains strict rules on the length of time for which a suspect may be detained before being charged. A person who suspects that he is unlawfully detain may apply to the Divisional Court of Queen’s Bench Division of the High Court for a writ of habeas corpus ordering his release.
[] 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).
[] In the 16th and 17th century, there was increasing recognition of the power of government to make laws. This newly recognized “legislative” function of government posed a serious problem for the Rule of Law ideal. If kings made the rules, how was the Rule of Law different from rule by discretion? And how could kings be bound by the law as private individuals? The English philosopher Thomas Hobbes concluded that they couldn’t ( 1962). In opposition, liberals such as Mill insisted that restraints on legislative power were a necessary part of the Rule of Law ideal.
[] To avoid such problems professor Hayek separate laws into- common law and administrative law. He said we can form as many categories of people as we want in order to apply the same laws to them. Within each category people will all be ‘equal’ before the particular law that applies to them, regardless of the fact that other people, grouped in other categories, will be treated quite differently by other laws. Thus, we can create an ‘administrative law’ before which all people grouped in a certain category define in the law will be treated in the same way by administrative tribunals, and side by side with it we can recognize a ‘common law’ under which people, grouped in other categories, will be no less equally treated by the ordinary courts.
[] The monarch, in her personal capacity, is not subject to the jurisdiction of the ordinary court of the land. Although the Crown Proceedings Act 1947 has reduce the legal immunities and privileges of the Crown in its public capacity, there are still many situations where the Crown, and to some extent other public bodies, enjoy a privileged position in litigation. The public interest in the proper administration of justice had led to the rule that no civil legal action may be brought in respect of anything said or done by a judge in the exercise of his judicial functions (Anderson v Gorrie  1 QB 668); in respect of jury verdict (Bushell’s Case (1670) 6 St Tr 999); or in respect of words spoken by the parties, counsel or witnesses in the course of judicial proceedings: Munster v Lamb (1883) 11 QBD 588.
[] In Derbyshire Country Council v Times Newspapers Ltd and Others  2 WLR 449, in determining that a local authority could not sue for defamation in respect of political criticism, Lord Keith rejected the notion that it was necessary to have regard to art 10 of the Convention as, in his view, ‘the common law of England is consistent with obligations assumed by the Crown under the Treaty in this particular field’.
[] Prior to the enactment of the Human Rights Act 1998 the evidence to support Dicey’s third concept was, at best, mixed. In cases such as Molone v Metropolitan Police Commissioner  CH 344 the court refused to recognize any right to privacy at common law that would render telephone-tapping unlawful.
[] Constitutional and Administrative Law,1998,p.125 [ Hilaire Barnett said: The rule of law- in its many guises- represents a challenge to State authority and power, demanding that power both be granted legitimately and that their exercise is according to law. ‘According to law’ means both according to the legal rules and something over and above purely formal legality and imputes the concepts of legitimacy and constitutionality. In its turn, legitimacy implies rightness or morality of law.