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Rule of LawIntroduction: As an expression, the rule of law is so commonly used, and so generally subject to ideological abuse, that it can be dismissed as “a bit of ruling class chatter” observed Judith Shklar. Judicial Malcontent JAG Griffith went so far as to say, it was “a fantasy invented by lib...

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Rule of Law Introduction: As an expression, the rule of law is so commonly used, and so generally subject to ideological abuse, that it can be dismissed as “a bit of ruling class chatter” observed Judith Shklar. Judicial Malcontent JAG Griffith went so far as to say, it was “a fantasy invented by liberals of the old school in the nineteenth century”. However, at its most basic, the doctrine of ROL refers to the belief that society should ruled or governed by the law. However, this is captured in Aristotle’s assertion that “It is better for the law to rule than one its citizens”. Marshall CJ’s judgement in the case of (Marbury v Madison) stated that “The govt of the US has been emphatically termed a govt of laws and not of mans”. Secondly, the ROL is posited in contradistinction to an absence of law. As Bradley and Ewing write: “Law and order is better than anarchy”. Albert Venn Dicey’s Version of ROL: A. V. Dicey popularized the phrase “rule of law” in the nineteenth century in his book “Introduction to the study of the law of the Constitution”. He interpreted the rule of law to have three principal aspects: no person should be punished except for a distinct breach of the law; no person is above the law; and constitutional principles are established in the common courts. Dicey’s first rule can be interpreted as expressing a need for protection from the arbitrary exercise of power. (Entick v Carrington) articulated this principle of legality by holding that, in the absence of statutory or common law authority, entry to a citizen’s home was unlawful. (IRC v Rossminster) required the courts to consider powers of search and seizure that were, in the view of Lord Scarman, a “breathtaking” interference with privacy and property. Dicey was critical of the use of discretionary authority and would undoubtedly be disturbed by the range of discretionary powers now afforded to the executive. However, Judicial review of executive action can be seen as central to the rule of law. Attempts to exclude the courts power of review have been rejected by the judiciary. In (R(Cart) v Upper Tribunal; U and XC), it was held that JR was available and further is a “principle engine of the Rule of Law”. The notion that “no man is above the law” seems straightforward. Dicey cited (Entick v Carrington) as support for this proposition, declaring it to be one of many instances where govt. officials were called to account. (M v Home Office) is an example of a govt. minister being held in contempt of court after ignoring a court order. This would seem to suggest the truth of Dicey’s statement. In (R(UNISON) v Lord Chancellor) the UKSC held that fees for employment tribunals are unlawful because they impede access to justice and defy the Rule of law. The case of (A v SOS HD) can be used to support the argument that the judiciary an important prole in preserving the ROL. Arguably this aspect of the principle also implies that there must be equal access to the courts. In certain circumstances, it has been held that Article 6 of the ECHR requires that the state should fund legal representation in order to ensure that litigants in proceedings are

equal (Steel and Morris v UK). The Final Element of Dicey’s conception of the ROL expresses his belief that the common law was capable of protecting individual rights, obviation the need for a written constitution. The HRA 1998 incorporates the right under ECHR into domestic law and therefore, arguably, the role of the courts is diminished (Malone v UK). In (Burmah Oil v Lord Advocate), the HL held by a 3-2 majority that although the damage was lawful, the proprietor should be compensated from public funds. Criticism of Dicey’s Version of ROL: Dicey was arguing in short that the Constitution was judge made, but Sir Ivor Jennings has criticised Dicey’s assumption the ROL was inconsistent with the use of discretionary powers by the executive. Jennings also argued strongly that Dicey’s second point ignored the particular responsibilities public officials held by virtue of their roles. In addition, he ignored the special immunities certain categories of individuals have. Finally, Dicey’s third point completely ignored the role of statue in the constitution. Even in respect of the examples he gives, personal liberty and the right of public meeting, there are many statues giving vital protections and imposing significant constraints. These include, of course, the HRA. Tom Bingham’s Version of ROL: Whereas Dicey offered three sub-rules to the ROL, Bingham had right. Contrasting the two definitions shows how the concept has changed in the intervening time and how centrally the principle may apply to Public law. Bingham’s sub-rules has been one of the most influential modern discussion of the rule of law. The sub-rules are as follows: the law must be accessible, clear and predictable; questions of legal right and liability should normally be dealt with under the law and not by discretion; the laws of the land should apply equally to all, unless there are objective differences; ministers and public officers must act in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and unreasonably (R v Lord Chancellor); the law must protect human rights; genuine civil disputes must be resolved without undue cost or delay; adjudicative procedures should be fair; international law must be complied with. Content-Free and Content-Rich Interpretation of ROL: The content-free interpretation of the ROL focuses on the form of the law and the procedures by which law is made. The legal writer Joseph Raz identified eight basic principles which reflect this approach. Those are: all law should be prospective, open and clear; laws should be relatively stable; the making of laws should be guide by clear rules; the judiciary should be independent; the principles of natural justice should be observed; the courts should be able to review the implementation of other principles; the courts should be easily accessible; and the discretion of the police and crime fighting agencies should not pervert the law. However, the content-rich interpretation is a more complex and perhaps idealistic view of the ROL. Ronald Dworkin summarized it as: “I shall call the second conception of the Rule of law the right conception. It assumes that citizens have moral

rights and duties with respect to one another, and political rights against the state as a whole. It insists that these moral and political rights be recognized in positive law, so that they may be enforced upon the demand of individual citizens through the courts and other judicial institution of the familiar type, so far as this is practicable.” Conclusion: Finally, the definition of ROL cannot be definite since it is a philosophical as well as a political concept and hence vagueness is apprehended when one tries to define or confine this wide concept. However, the concept has remained the most inspirational and strongest in constitutional law worldwide. Hence it was truly said by Thomas Fuller “be you ever so high, the law is above you”. The ROL is fundamental to ensure that the law provides justice to citizens and holds the Executives and Legislature to account for the lawfulness of its actions. Judges must ensure that the rule is not ignored where the other organs of the state consider it convenient to do so, particularly in times of national threat....