Define ‘Law’ and discuss the theory of ‘Rule of Law’

Definition of Law

Law, as it is the command of the Sovereign. It means, (1) law has its source in sovereign authority, (2) law is accompanied by sanctions, and (3) the command to be a law should compel a course of conduct. Being a command the law must flow from a determinate person or group of persons with the threat of displeasure if it is not obeyed. Sovereignty is, however, only a part of the state. So, in ultimate sense, law emanates from the state. Thus the term Law is sued to denote rules of conduct emanated from and enforced by the state. People living in an organized society have to follow certain common rules, otherwise peaceful living is impossible. It is the function of the State to enforce these rules.

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Holland

According to Holland, Law is, “a rule of external human action enforced by the sovereign political authority”. From this definition it follows that there are three essential characteristics of law.

1. Law is a rule relating to the actions of human beings.
2. Law attempts to regulate the external actions of human beings.
3. Law is enforced by the State.

Salmond

“Law is the body of principles recognized and applied by the State in the administration of justice.’

Woodrow Wilson

Woodrow Wilson defines Law as follows: “Law is that portion of the established habit and though of mankind which has gained distinct and formal recognition in the shape of uniform rules backed by the authority and power of the government” This definition is practically the same as that of Holland.

Anson

Rules regarding human conduct are necessary for peaceful living as well as for progress and development. Anson observes as follows: “The object of Law is Order, and the result of Order is that men are enabled to look ahead with some sort of security as to the future. Although human action cannot be reduced to the uniformities of nature, men have yet endeavored to reproduce by Law something approaching to this uniformity.

Rule of Law

The Concept

In earlier times (and in a few countries now) certain classless and individuals possesses 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 an privileges for the protection of their human liberties. Democracy can remain only in a society of equals.

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:

1. 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 word, (a) there must be supremacy of law, (b) no one shall be punished except for definite breach of law and (c) 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.
2. 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 (a) equality before the law, (b) every citizen is subject to the ordinary law of the land and (c) the citizen has to face trial in the same law courts, irrespective of his status or position in the society.
3. 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.

Comments

The Rule of Law is therefore, no respect of persons. It is applicable to everybody (from Prime 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.

Unlike the Indian Constitution, 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 citizen have been protected by the ordinary law of the country and the Rule of Law. In India, however, there is a written constitution specifying the Fundamental Rights of a citizen.

Criticism

The three principles, which Dicey described in relation to the Rule of Law, have been criticized by many jurists, including I. Jennings, H. Laski and W.A. Robson. The main criticisms are summarized below.

1. The emergency of Administrative Law: 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 (19^th century Great Britain) there existed separate military courts and courts for churchmen. The executive department often uses the arbitrary and prerogative power 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.
2. Economic Inequalities: In order to ensure legal equality Prof. Laski emphasizes the need of economic equality. Punishment for the same offence varies because police enforcement is frequently partial. Therefore, from the standpoint of law, the word ‘equality’ is meaningless, unless there is economic equality followed by social and constitutional equality.
3. The supremacy of the Legislature: The third principle of the Rule of Law is the supremacy of common law. But, in fact the principal basis of the constitution of England is the supremacy of Parliament. The sovereignty of Parliament in Britain has not been established by the county. Although the fundamental Rights of a citizen are established upon the basis of conventional rules and the Court is the protector of those rights, yet Parliament of Britain is the sole authority to bring any change over or to nullify the existing rules. Therefore, is understood that Parliament is the fundamental basis of the Constitution of England and judging from the standpoint of modern age, the concept of the Rule of Law is only a theoretical idea. This, however, does not apply to India because the constitution of India is written and there is a provision of fundamental rights in the constitution.