This article is written by Jannat, from Chandigarh University, Mohali. The article talks about rule of law as rule through evidence in law.

Introduction

Professor A. V. Dicey, the Vinerian Professor of English Law at Oxford, is credited with coining the phrase “rule of law,” which he included in his 1885 book ‘An Introduction to the Study of the Law of the Constitution’.

Dicey has given rule of law three components:

1. No one is punishable or may legally be required to suffer in body or goods until there is a direct breach of the statute found in the ordinary legal manner before the ordinary courts of the country.
2. When we refer to the “rule of law” of our country as a characteristic, it does not only mean that there is no one among us beyond the law, but that every individual is subject here to the ordinary law of the state and is compliant to the jurisdiction of the ordinary courts, whatever the circumstances, rank or condition.
3. In a third and distinct context, the rule of law or the predominance of the legal spirit can be defined as a distinguishing feature of English institutions. We may say that the Constitution is pervaded by the rule of law because the general principles of the Constitution are the result of judicial decisions determining the rights of private individuals in specific cases brought before the court, while in many foreign constitutions, the protection provided to individual rights results or seems to result from general principles of law.

Since ‘rule of law’ is clearly an English term, familiar in the UK and countries such as Ireland, the United States, Canada, Australia, and New Zealand whose law has been impacted by British law, it is also significant in countries whose law has been influenced by the jurisprudence of Germany, France, Italy, the Netherlands, and Spain. In Germany, for example, the term “Rechtstaat” is used, while in France, the term “État de Droit” is used, both of which practically equates to “the law-governed state.”

Historical background 

Ancient Greece

Many records of the rule of law trace its roots back to ancient Greek thought, citing quotations from Plato and Aristotle. More than a thousand years after Athens’ heyday, the rule of law as a continuing tradition took hold. Greek theories about the rule of law are thus better interpreted as superfluous, motivation, and authority for subsequent times. Many of the problems that the Greeks, especially Plato and Aristotle, grappled with so articulately are eternal problems, hence their timeless importance and popularity. Democracy was synonymous with the ‘rule of law’ for the Athenians. “The single most critical criterion for the Rule of Law, according to Aristotle, is the character we would attribute to those who make legal judgments. It is part of such a character’s nature to think logically and to do so, his passions must remain silent. According to Plato and Aristotle, the law should promote the welfare of the society and strengthen the growth of the moral virtue of all the citizens. As Plato said, “We maintain that laws that are not formed for the welfare of the whole state are baseless law. As a result, what is fair will be both lawful and equitable, and what is unlawful will be both lawless and unfair.”

Medieval period

The rule of law tradition came into being slowly, unplanted, without a clear source or starting point, and began in the middle ages. Three particular sources of rule of law were the contest between kings and Popes for power, the Germanic Customary, and the Magna Carta, which represented nobles’ efforts to apply laws to impose restrictions on the sovereign.

Pope versus King

Concepts of theocratic royalty, which Constantine first affirmed, made the dispute between popes and kings unavoidable. The Gelasian theory, formulated at the end of the fifth century, establishing the authority of secular and religious leaders in their reals eliminated this dispute. But Justinian, and later other emperors and rulers, opposed this doctrine and claimed power over the religious leaders because of its divine position. 

On the other hand, the popes claimed supreme control over secular rulers from their end, which was a rational inference flowing from the primacy of the sacred above profane people. In medieval notions, the total divine veil on law and society worked in another way to pave the groundwork for the rule of law. A society ruled with Christian justice; the king, like anyone else, was subject to this rule and took a clear oath pledging his submission to the higher (natural, religious, and customary) law and the positive law. The absolutist monarch mould inherited from Roman law was thus challenged and turned into a monarch expressly created by law.

Germanic customary law

The Germanic customary law proposition that the king is subject to the law has been commonly recognized as an independent source of the rule of law in the Middle Ages, offering a counterpoint to Roman notions of absolutist monarchs. The majority of law during the Medieval period was customary law, rather than procedural or positive law. Customary rule, which was often unwritten, gained particular sanctity as a result of its alleged ancient heritage, which was one of the most important means of legitimation during the Medieval era. 

Furthermore, since it (by definition) enjoyed universal acceptance and compliance, customary law held broad interpretations of popular approval. The famous Germanic “right to resistance,” according to which any king who broke the law faced the people’s abandonment, was a clear illustration of the confidence in the law’s sovereignty over rulers. The king and his people both had a responsibility to protect the law from violation or wrongdoing, and in some circumstances, where the king refused to do so, his subjects took matters into their own hands and deposed him. Given that the king could not be taken before a judicial institution to answer for crimes, these viewpoints imply that the king was not completely able to ignore the rules. Customary rule extended to all, even local barons and their aristocratic counterparts who presided in manorial courts, reinforcing and solidifying the everyday perception that no one was above the law.

Magna Carta 1215

The Magna Carta, signed in 1215, is an essential part of any discussion of the medieval history of the rule of law. The Magna Carta epitomized a third medieval origin of the rule of law, the attempt of nobles to use rule of law to restrain rulers, while it stands on its own as a historical occurrence with reverberating effects in the rule of law tradition.

According to Tom Bingham, the point of embarkation of the Rule of Law is The Magna Carta of 1215. Chapter 39 and 40 of the Carta read as following:

Chapter 39 – No free man shall be captured, imprisoned, or deprived of his property or properties, or outlawed, banished, or otherwise deprived of his standing, nor will we use force against him, or order anyone to do so, unless by the lawful decision of his equals or by the law of the state.

Chapter 40 – We will not sell to anybody, nor will we refuse or defer right or justice.

The Pope annulled The Magna Carta within a few months, claiming that it had been extracted from King John under duress, and it has given rise to much poor history. It wasn’t a law at the time and there was no such thing as a parliament. It did not reflect the ideals of jury trial, which was also in its infancy, or habeas corpus, which has yet to be invented in its present form.

An American scholar in 1991, estimated that Magna Carta had been cited by more than 900 federal and state courts in the US. The Supreme Court also did this in more than sixty cases in the half-century from 1940 to 1990. It is important to note that the Magna Carta had a significant impact on the rule of law tradition since the Medieval era. During this time, however, it did reflect the rule of law. “Repeated Magna Carta confirmations, as requested by the nation and issued by monarchs, reaffirmed the notion that the sovereign, like his subjects, was subject to the law.” It also gave the previously stated abstract statements regarding natural law and customary law a concrete institutionalized aspect of the positive law framework – an ordinary court and jury of peers.

Liberalism

Liberalism emerged in the late seventeenth and early eighteenth centuries, during the pre-modern period. Rule of law is now widely understood to be synonymous with liberalism. Human liberty is the most important aspect of liberalism. “The only right that merits the name is that of doing our benefit in our way, so long as we do not attempt to rob anyone of theirs, or obstruct their attempts to achieve it”, wrote John Stuart Mill. 

The liberal social contract theory, which John Locke popularised, describes the roots of law and the state in idealized terms. Life without laws (in a state of nature) is precarious and vulnerable to conflict; maintaining peace necessitates rules and impartial law enforcers and judges. In the context of maintaining order, autonomous persons chose to form a government empowered to enforce and enact a body of legislation, thus exchanging their inherent independence for life within a legal regime while protecting their fundamental rights and liberty. Their consent is what makes the relationship legal.

Montesquieu’s creation of the division of powers, the focus he put on the judiciary as the guardian of the rule of law, his declaration of legal liberty, and his insight that the surrounding society and the law are inextricably linked are all timeless. Philosophers like Jeremy Bentham, John Austin, Adam Smith, Karl Marx, etc, have also expressed their individual views on the rule of law and state.

Alternative Rule of Law formulation

There are several alternative formulations, but they can be categorized into two categories: “formal” versions and “substantive” versions, each of which has three distinct types.

Formal versions

Rule-by-Law – law as an instrument of government action

The most rudimentary formal version of the rule of law is the idea that law is the vehicle by which the state conducts its activities, that “whatever a government does, it should accomplish through laws.” This version might be better labeled as “rule by law.” According to one extreme interpretation, “all statements of the sovereign, since they are utterances of the sovereign, are law.” The rule of law requires that all government actions be legally sanctioned. The term “rule by law” has no sense of legal constraints on government, which is the sine qua non of the rule of law tradition.

• Formal Legality – general, prospective, clear, certain
• Democracy+Legality – consent determines the content of law

Substantive versions

• Individual Rights– property, contract, privacy, autonomy
• Right of Dignity and /or Justice
• Social Welfare– substantive equality, welfare, preservation of community

Principles of Rule of Law

According to Sir Tom Bingham following are the principles of the Rule of Law:

Accessibility of law

The statute must be understandable and, to the greatest extent possible, predictable.

First and foremost, if anyone is likely to be sued or punished for doing or failing to do something, we should be able to determine what it is we must or must not do under the threat of criminal prosecution. This is not because bank robbers routinely contact their solicitors before robbing a State Bank of India office, but because certain offences are much less visible than theft, and most people choose to stay on the right side of the law if possible. One vital role of the penal code is to deter criminal behaviour, and we cannot be discouraged if we do not realize what we should not do and cannot fairly readily learn what we should not do.

The second explanation is similar, although it is not related to criminal law. It is important to understand our rights and responsibilities whether we are to assert our civil (non-criminal) and legal rights or fulfill the obligations imposed by civil law. Otherwise, we would be unable to assert our interests or fulfill our commitments. There’s not much point in being entitled to anything like an old-age pension if you can’t find out what you’re entitled to and how to go about claiming it. 

The third explanation is less evident but equally convincing. It is that a body of open legal rules regulating trading rights and responsibilities promotes fruitful conduct of commerce, finance, and industry in general. No one will prefer to do business, perhaps involving substantial amounts of money, in a country where the rights and duties of the parties were ambiguous or undecided. According to an article written in the Economist, “the rule of law is generally conceived of as a political or legal matter. However, in recent years, the rule of law has been increasingly significant in economics. The rule of law is regarded as good not only in and of itself, since it represents and promotes a just society, but also as a source of other good things, most notably progress.’ The article went on to note some disagreement among economists about the magnitude of the link between the rule of law and economic development, pointing to China as an exception, but it did not claim there was no link.

Law is not discretion

Dicey was fiercely opposed to officials being given discretionary decision-making authority. This, he argued, paved the way for arbitrariness, which is the polar opposite of the rule of law. Ordinarily, questions of legal right and liability should be settled by the application of the law, rather than by the use of discretion. For example, the legislature creates a program to give grants to persons with disabilities. The decision on eligibility is made by local officers and cannot be challenged in court. Mrs Oberoi’s request is denied by the officer of Region A because her condition is mental, however, Mrs Sharma’s application, who also has a mental condition, is allowed by the officer of Region B. Such a system would violate the rule of law if there was no effective way to appeal the Region A officer’s judgment. Mrs Oberoi’s entitlement should be guided by law, not by an official’s arbitrary whim.

The rule of law does not demand that officials or judges be stripped of all discretion, but it does require that no power be so unrestrained as to be potentially arbitrary. No legal discretion may be unrestricted.

Equal treatment under the law

The law of the land should apply equally to everybody, except when objective disparities justify the distinction.

The exercise of power

Ministers and public officers at all levels shall utilize the powers bestowed upon them in good faith, equitably, for the purpose for which the powers were bestowed, without exceeding the limitations of such authorities, and not arbitrarily. Citizens of a democracy empower their representative institutions to establish laws that, when properly enacted, bind those to whom they apply, and it falls to the executive, the government of the day and its agents, to bring these laws into effect; nothing normally enables the executive to act in any way other than in exact line with those laws.

Judicial review refers to the procedure through which courts ensure that government agencies follow the law. Traditional remedies included habeas corpus, certiorari, mandamus, quo warranto, and so on. Because it is expected that the state would not treat citizens unfairly, power must be used equitably in all circumstances. Natural justice principles have generally been thought to demand, first, that the decision-maker be devoid of bias or personal interest (he must not be a judge in his matter), and, second, that anybody who may be subject to an adverse judgment is heard (a rule the vulnerability of which is vouched by its Latin version: Audi alteram partem, hear the other party).

Human Rights

The law must provide appropriate safeguards for fundamental human rights. This is not a premise that is universally regarded as part of the rule of law. It has been claimed that Dicey’s idea of the rule of law lacked such substantial meaning. Professor Raz has written the following:

In theory, a non-democratic legal system founded on the denial of human rights, widespread poverty, racial segregation, sexual disparities, and religious persecution may adhere to the rule of law standards better than any of the more enlightened Western democracies’ legal systems. It will be a far inferior legal system, but it will thrive in one area: adherence to the rule of law. 

Dispute resolution

It seems to be an inevitable outcome of the idea that everyone is protected by and entitled to the security of the law that citizens should be allowed to go to court and get their civil rights and claims settled in the last resort. A privilege or argument that cannot be enforced is worthless to all. Arbitration is an alternative to mediation and conciliation. It involves the appointment of an impartial arbitrator, who is often appointed by the parties, to decide on their disagreement based on the terms of reference they have. This may only be done by consensus, either before or after the issue begins, but if done, the arbitrator has the power to render an award that is binding on the parties and enforceable by the legal system.

The right to a fair trial

The state’s adjudicative procedures should be impartial. The right to a fair trial is a cornerstone of the legal system. It is a right that should be exercised first and foremost in a criminal trial, but the fairly ponderous wording of this concept is selected to emphasize that the right goes beyond that. It applies to civil cases, regardless of who is involved, whether private persons, businesses or government entities. It applies to blended adjudicative processes that are neither criminal nor civil in the traditional sense: processes in which one or more parties may face substantial repercussions if an adverse decision is reached.

An independent legal profession, bold in its advocacy of people who cannot defend themselves, however controversial or unpalatable their cause may be, is almost as necessary as an independent judiciary.

Morality of law

Morality of law is a function of the purposes to which it is put, much like a knife, which is neither good nor bad in and of itself but may be used to kill a man or slice vegetables. The rule of law would be unethical if it served an immoral legal system. Clarity and consistency of enforcement of deleterious regulations – such as legalized slavery – makes the system more terrible, increasing its draconian efficiency and destructive effect. From this approach, whether a legal system deserves support is determined not by whether it upholds the rule of law (though this may be a factor), but by the moral significance of the content of laws, their implementation, and their effects. 

This argument was stressed by Joseph Raz: “A non-democratic legal system founded on the denial of human rights, widespread poverty, racial segregation, sexual inequality, and racial persecution may, in principle, comply to the standards of the rule of law better than any of the legal systems of the more enlightened Western democracies.” It will be a far inferior judicial system, but it will thrive in one area: its adherence to the rule of law. Slavery may be instituted by the law without violating the rule of law.

Rule of Law in the International Legal Order

Rule of law necessitates a state’s conformity with its commitments under international and national law. While international law is a distinct and recognizable body of law with its own rules and institutions, it is a body of law that is complementary to, rather than antagonistic to, the national laws of individual states; it is not a thing apart; it is founded on similar principles and pursues similar goals, and adherence to the rule of law is just as essential on the international plane as it is on the domestic plane. The Secretary-General of the United Nations spoke of the rule of law as a principle at the core of the organization’s mandate in his report to the Security Council on August 23, 2004. He went on to say: “It is a principle of governance in which all persons, organizations, and agencies, both public and private, including the state, are kept accountable to laws that are officially promulgated, equally enforced, and properly adjudicated, and that are consistent with international human rights norms and standards. It also necessarily involves laws to ensure that the supremacy of law, equality before the law, duty to the law, fairness in the execution of the law, separation of powers, participation in decision-making, legal certainty, prevention of arbitrariness, and procedural and legal dignity are upheld.”

According to Professor William Bishop, “International Rule of Law”- Without going into specifics, I believe we should all agree that the concept includes reliance on law rather than arbitrary power in international relations; the substitution of settlement by law for settlement by force; and the realization that law should and should be used as an instrument for the cooperative international furtherance of social aims, to preserve and promote the rule of law. He goes on to cite a former American Bar Association president: “The rule of law between nations denotes the existence of hundreds of legal rules, legal procedures, courts, and other institutions that add up to order and stability, equality, liberty, and individual freedom. The rule of law among nations denotes the regulation of mutual interaction of nations, as well as international contacts and relations of individuals, by legal concepts, standards, and principles.”

Importance

1. Rule of the Law is the mechanism, method, institution, procedure, or tradition that promotes the equality of all citizens before the law, safeguards a non-arbitrary mode of government, and, more broadly, avoids the unconstitutional use of force. Arbitrariness is a characteristic of different types of despotism, absolutism, authoritarianism, and totalitarianism. Despotic regimes also contain strongly institutionalized systems of rule in which the institution at the pinnacle of the power hierarchy has the ability to operate beyond the restraint of legislation when it so desires.
2. The rule of law means that the making of laws, their compliance, and the relationships between legal regulations are all legally controlled, meaning that no one—not even the highest-ranking official—is above the law.
3. The legal restraint on rulers ensures that the government, like its subjects, is bound to existing laws.
4. The implementation and adjudication of legal rules by different regulating authorities must be unbiased and consistent across comparable circumstances and must be rendered without regard for the class, rank, or relative power of disputing parties.
5. It also implies some features regarding the nature and substance of the rules themselves. Laws should, in particular, be free and simple, generic in form, common in implementation, and understandable to everyone.

Conclusion

Chief Justice of England and Wales Tom Bingham quoted, “So, if you maltreat a penguin in the London Zoo, your position as Archbishop of Canterbury does not shield you from prosecution; if you trade honours for monetary gain, your position as Prime Minister does not shield you from prosecution. But the second argument is as relevant. There is no particular legislation or court that deals with archbishops and prime ministers; they are subject to the same laws and courts like anyone else.” The phrase “rule of law” appears to refer largely to a set of fundamental concepts and ideas that, when combined, provide some stability and coherence to the legal order.  The rule of law is a conglomeration of norms, expectations, and aspirations: it includes classic notions about human liberty and natural justice, as well as notions about the necessities of justice and fairness in the ties between government and governed. Neither substantive or procedural fairness can be easily distinguished: both are based on respect for the individual person’s dignity. The concept of the rule of law is intricately related to some fundamental institutional structures. The basic concept of equality, which is at the heart of our views about justice and fairness, mandates that all adult citizens have an equal voice in the legislative process: universal suffrage may now be considered a vital thread of the rule of law.

References 

• The Rule of Law by Tom Bingham
• On the Rule of Law (History, Politics, Theory) by Brian Z Tamanaha

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