US rule of law

April 6, 2023

3413

This article is written by Ms Sushree Surekha Choudhury from KIIT School of Law. The article gives a descriptive overview of the principle of rule of law in the United States. It speaks about the origin of the concept and its development over the years.

It has been published by Rachit Garg.

Table of Contents

Introduction

Have you been someone who loved the “Harry Potter” series and novels in their childhood? If yes, you will definitely relate to what I say next. Remember how in ‘Harry Potter and the order of the Phoenix,’ Harry Potter was served with notices from the Ministry of Magic for making improper use of magic in a defence attack against the dementors? Remember how Dumbledore ran Hogwarts School with specific rules and regulations? Remember how Professor Umbridge was handed over to the administration but was later removed because of her tyranny? All of these instances were examples of the rule of law being followed in Hogwarts!

Rule of law: a basic feature of the Constitution

‘Rule of law’ derives its origin from the French expression ‘la principle de legalite.’ This expression means a government based on the principles of law. The expression ‘rule of law’ was coined for the first time by Sir Edward Coke. It was further articulated by Prof. A.V. Dicey in his book ‘The Law of the Constitution (1885)‘. This development took place in the UK and was thereafter adopted by the USA and India. The US rule of law is an adopted concept where all US citizens, institutions, authorities, and entities are accountable and responsible for the publicly promulgated laws. These laws are equally applicable and enforced against everyone equally. The adjudication process must be independent and fair. All these laws must be in consonance with international human rights principles. The courts play a crucial role in upholding the principles of the rule of law. The principles often come as a rescue for the minority communities of a state against discrimination in the laws of the land. Equality before the law has been given high importance in the American Constitution. It prescribes strict punishment to a majority community if it infringes the fundamental, constitutional, and legal rights of minorities.

Other essential features of the US Constitution

The rule of law, federalism and the separation of powers doctrine is at the heart of the US Constitution. Apart from these basic features, there are several other elements that together constitute the US Constitution. These are:

The people’s government

Firstly, the US Constitution is validated and legitimated by the people when it benefits them and accords them with basic rights and freedom. The US Constitution is by the people and for the people. These features are also embedded in the Preamble of the US Constitution. The US Constitution is not an act of the government but rather of the people constituting the government. A government without a Constitution is compared to a power without rights.

Political responsibility

Further, the US Constitution states that the US government is politically responsible toward its citizens and to the States. This responsibility is exercised through a system of checks and balances and accountability.

Limited government

Further, the US Constitution states that the US government is a limited government by nature. The political and legal limitations put on the government through the Constitution prevent it from being unlawful, vague, or arbitrary toward its subjects.

Division of powers

Furthermore, the US Constitution states that in order to achieve limited government, the powers of the government must be definitive and distributed. This is achieved by the division and separation of powers between the organs of the government.

Bill of rights

The US Constitution is regarded as a bill of rights. This is because it aims to provide and protect the basic rights of the citizens, as well as maintain a check and balance mechanism on the functioning of the federal government and its interference in the citizens’ exercise of these rights.

A brief history behind the conceptualization of rule of law

Marking the beginning since the 13th century AD, the concept of the rule of law took shape through the lenses of Sir Edward Coke and Prof. A.V. Dicey as in brief below. It was because of Coke and Dicey that the concept was made a principle, but the origins can be traced back to several regulations in place historically. It can be observed as:

Magna Carta (1215)

Article 39 of the Magna Carta (1215) incorporated the values of rule of law by stating that no person shall be deprived of his freedom, be exiled or be punished except by a lawful judgement. This Article ensured the right to freedom, personal liberty, right to life, and right to property to the people in the kingdom. This gave them protection from the arbitrary rule of the king. It incorporated the rule that the judgement against a person must be made according to law. It talked about following the proper procedure that we denote as due procedure today. This was how the concept of due procedure was first established in the UK, and this was followed by its adoption in the US.

Federalist Papers

In 1788, James Madison, in his Federalist Paper No. 51, wrote that when a government is formed, it is established and administered by men over men. Thus, the government is entrusted to control the governed and then control itself as well. This issue was discussed and addressed by US Constitution makers and policymakers. As a solution, they decided to divide the powers of the government by creating different branches of it. Ever since the division of powers between the executive, the legislature, and the judiciary has been prevalent. This separation of powers in the US was made to ensure that no organ is vested with excessive powers and thereby misuses these powers. The separation of powers doctrine provides checks and balances in the US government. The doctrine ensures that no man is treated above the law.

Elizabeth Stanton’s observations

Elizabeth Stanton, a notable social activist observed and delivered in 1869 that the rule of law can be said to have been maintained in a state where the citizens obey and respect the law. While giving importance to men that follow and observe the laws, Stanton stated that it would become impossible and overwhelming to punish for contempt and hold the rule of law if people decide not to obey the laws. Stanton also focused on the importance of making laws in a way that people find good to obey. Otherwise, the law will lose the respect of its citizens, and this will lead to disobedience and chaos. People obeying the laws is a part of the social contract. When people obey the laws, they are accorded social benefits and social order in return from the government.

Rule of law: an insight

Rule of law is the principle that ‘no man is above law.’ Law is not something which can be created by anyone’s act or will. It can only be discovered from the already existing truth of nature. One essential principle governing the rule of law is its feature of keeping a check on the power of the government. Rule of law focuses on the principle that the government must act conforming to the laws and regulations of the country. The government should, at all times, follow the due process of law. These principles provide protection against an arbitrary ruling of the government and, thus, protect the interests of the people.

Theories on the concept of rule of law

The rule of law developed in the US from the contributions of many theorists. It developed through these theories and the concept kept evolving as to the changing needs of society. Some of these theories were:

Coke’s theory of the rule of law

The origin of the concept of rule of law dates back to the 13th century AD when judge Henry de Bracton said that the King ought to be subject to God and to law. This was the origin of the idea, which was later given shape by Sir Edward Coke.

Sir Edward Coke explained that the rule of law must have the following elements:

There must be an absence of arbitrary powers or the use of powers arbitrarily by the government, and
He stated the proper way of inflicting punishment. Coke stated that, according to the rule of law, no person should be punished except for a breach of the law. He further clarified that such a breach can be punished only when it is established and proven in the courts of the land in a legal manner.

These principles marked the beginning of the concept of the rule of law.

Criticisms of Coke’s theory of rule of law

Coke’s theory of rule of law marked the beginning of the conceptualization of the rule of law. It came with certain criticisms. The theory was fiercely criticized by Thomas Hobbes. Thomas Hobbes criticized Coke’s theory of Common Law by pointing out the subjectivity and the indeterminacy of artificial reason. Hobbes referred to the theory as a theory of artificial reason. Coke called reason to be the heart of the theory but Hobbes was of the opinion that reason is a concept well understood by lawyers and lawmakers. It is more in maxims than in usage.

Dicey’s theory of the rule of law

After the invent of Coke’s theory, Prof. A.V. Dicey in his book spoke about the rule of law possessing the following elements:

There must be absolute supremacy of the law of the land,
There must be an absolute absence of arbitrary powers of the government, and
Even the broad discretionary authority of the government could be termed arbitrariness.

Professor Dicey stated that the rule of law consists of the following principles:

Supremacy of law

Dicey stated that the most basic yet crucial provision of rule of law is the supremacy of laws. Under this principle, no one can be punished except for a breach of law and only after such a breach is legally proved in a court of law. This principle also states that the law is supreme and treats all alike. It is the same for a common person as it might be for a government official. Everyone is bound to obey the laws of the land. Due procedure must be followed by the courts in establishing breaches.

Equality before law

This principle states that no man is above the law. Every individual is seen and treated equally under the law. People of all classes, castes, creeds, colours, and races in the United States are treated alike under the US Constitution. Equality before the law has been given high importance in the US.

The predominance of legal spirit

Legal spirit refers to the spirit of justice. This principle states that law and justice are coincidental. It states that law must follow justice, meaning that law should be in accordance with the law and not vice-versa. Dicey believed that rights such as the right to personal liberty, the right to freedom should rather be granted by judicial precedent than the US Constitution. Rights should be granted by the judiciary, and the US Constitution is the consequence of these rights. The Constitution should not be a source of it.

Criticisms of Dicey’s theory of rule of law

Dicey’s theory of rule of law was fairly accepted in the 19th century. However, it was criticized by several theorists in the coming years. Mentioned below are a few criticisms of Dicey’s theory of the rule of law:

Dicey stated that the UK Constitution was drafted according to the rule of law. This was opposed by the theorist G.W. Paton. Paton, while opposing Dicey’s view, stated that the UK Constitution is a result of years of political struggles and learning and not a clear and logically deduced legal theory of the rule of law.
Dicey focused on the concept of equality before law and said it to be an essential principle of the rule of law. This view was criticized by Wade and Forsyth, who drew attention to the principle of rex non-protest precarre. This was the principle that ‘the king can do no wrong.’ This principle provided an upper hand to the ruler of the state by providing immunity from the laws of the land. It was violative of the principle of equality before law and thus, Wake and Forsyth argued that there was no equality before the law in reality.
W.I. Jennings criticized Dicey’s theory of the supremacy of law. Jennings criticized this principle by stating that Dicey made a distinction between arbitrary powers and discretionary powers but failed to determine the differentiating factors between the two. He further criticized that, according to Dicey, the supremacy of law disallowed excessive discretionary powers of the government, but Dicey failed to answer the question ‘How much is too much?’, Jennings stated that even though Dicey’s theory consisted of these principles, the reality was different. There was, in fact, the exercise of arbitrary powers/excessive discretionary powers by several government authorities and departments.

Development of the rule of law in the US

The rule of law developed in the US when it was first adopted from the UK, and thereafter, the idea was conceptualized through phases and a series of discussions and legal observations.

Adoption from the UK

The rule of law was first adopted in 1787. American policymakers and lawmakers adopted the concept from the UK, where it had been prevalent since medieval times. By incorporating the principle into the functioning of the US government, policymakers often described the principle as the ‘government of laws, not of men.’ Apart from the Magna Carta (1215) where King John decided to be obedient to the English laws, the idealization of the concept has traces from the ancient Roman jurisprudence as well. Henry de Bracton emphasized the fact that the ruler (king) must not be under the men of the state but rather under the supreme power of God and under the law, since it is the law that makes the king. North American English colonies also believed that the king’s dominion is derived from law. Therefore, the king must obey the supreme law.

Dr. Thomas Bonham v. The College of Physicians (1610)

In the case of Dr. Thomas Bonham v. The College of Physicians (1610), the principle of judicial review was emphasized. Judicial review was considered a fundamental principle in the direction of achieving the implementation of the rule of law. In this case, Chief Justice Coke emphasized that the judges must be given the power to strike off an Act of Parliament if they observe it to be against the principles of law and justice. Such an Act of Parliament should be declared void also when it is against the common law of the country. Stating these reasons, the court, in this case, concluded that the judiciary must possess the power of judicial review.

Court’s power of judicial review

Even though the aforementioned case emphasized the power of judicial review of the courts and observed that such power must be exercised, it was largely inactive in the years that followed. In 1776, Supreme Court judges called the whole notion contradictory and paradoxical because of the presence of the principle of legislative supremacy. The principle of legislative supremacy gives the highest degree of power to the policymakers and lawmakers and this makes it impossible for the judges to declare any Act of Parliament void since that Act is created under and protected by the principle of legislative supremacy.

Constitutional supremacy

The Federal Constitution of 1787 introduced the concept of ‘constitutional supremacy.’ This impacted society significantly as it increased the importance of the US Constitution and put everyone under an obligation to abide by it. The ambit of constitutional supremacy confined the federal government, government officials, senators as well as citizens under the supreme law of the land, under Article VI.

Martin Luther King Jr. (1963)

Sir Martin has made significant contributions to the field of law and justice. He once wrote a letter from the Birmingham jail where he discussed the difference between law and justice. He believed that law, even when applied uniformly, does not guarantee a fair consequence. He believed that a person who once broke a law but accepted the punishment willingly to arise society’s conscience towards justice and injustice, in fact, has the highest respect for law. Sir Martin focused on the importance of appropriate justice and stated that a society that aims to establish and adhere to a rule of law must ensure that the rule of law guarantees justice in the end.

The Rule of Law in Times of Stress (2003)

The article contributed by US judge Diane Wood discussed about the importance of transparency in a legal system. She focused on the importance of having a transparent legal system where neither the law nor the due process is confidential. Focusing on the importance of uniformity in law, she stated that such transparent law must not be arbitrary and should be such that people can understand it. Speaking further about transparency in law, she stated transparency not only means that the citizens know what the law is but also know the reason behind the enactment of such law. Further, the rule of law must ensure that following it must end with predictable consequences.

The rule of law and the US Constitution

As discussed earlier, the US Constitution is the supreme law of the land. All other legislation, government actions, rules and regulations, etc., abide by the rules of the Constitution. A government that runs in accordance with the constitution is referred to as its “constitutionalism.” It is only when a government maintains its constitutionalism that it is treated as a “constitutional government.” A constitutional government abide by the principles and doctrines of the constitution, as well as derives power and authority from it. Constitutionalism is maintained when there is a reasonable restriction on the powers of the government and arbitrariness is removed with the help of separation and balance of power. Simply put, constitutionalism is the adherence to the rule of law by a government and its constitution. The US Constitution supersedes all other laws of the country and all the officials, the government and the citizens abide by this supreme law.

The government and its officials are entrusted with the obligation to uphold constitutionalism through the rule of law in the US. They protect the rights and liberties of individuals by applying the rule of law as a basic feature of the US Constitution. The principles of constitutional supremacy and judicial review were the first to establish a rule of law in the US judicial system. This took place through landmark judgements and their judicial interpretations. In this context, the most important decision was laid down in the case of Marbury v. Madison in 1803.

Marbury v. Madison (1803)

After the introduction of the Supremacy Clause and the development of the concept of constitutional supremacy in 1787, judgements in similar lines of the principle followed. In the landmark judgment of Marbury v. Madison (1803), the doctrine was implemented and discussed. It was observed that an act of the Parliament which may be inconsistent with the US Constitution will become void. This judgement established certain crucial principles:

Federal laws inconsistent with the US Constitution are invalid (constitutional supremacy), and
Judges were vested with the power to decide the constitutionality of federal laws (judicial review).

Facts of the case

The case involved a dispute between then President John Adams and the next incoming President, Thoman Jefferson. In 1800, the Democratic Republic party of Jefferson beat the Federalist party of John Adams in the presidential elections. While John Adams enjoyed power, he made friends and allies and posted them to higher positions in the administration and the judiciary. Adams, before leaving office, was unable to serve commissions to certain appointees and, during this time, Jefferson assumed power. Jefferson, through his Secretary of State, James Madison, stopped the appointment of these officers. William Marbury, who was to be appointed as a justice of peace for Washington, D.C., sued Madison for non-appointment. Marbury requested the Supreme Court to issue a writ of mandamus against this action of Madison to compel him to fulfill his lawful obligation.

The decision of the Court

Chief Justice Marshall ruled in favour of Marbury. He stated that it was Marbury’s right to be served by the commission and that, by stopping it, President Jefferson and his party were violating the supreme laws of the land. J. Marshall said a writ petition of mandamus could be filed against the Secretary of State and stated that the Jefferson government cannot withhold Marbury’s appointment.

However, J. Marshall then sided with Jefferson and Madison. This was because J. Marshall stated that the judiciary did not have the right to issue a writ of mandamus. Marbury was seeking a writ of mandamus under the Judiciary Act of 1789. This Act was inconsistent with the US Constitution since it violated Article III of Section 2 of the Constitution. By this, J. Marshall established the principle of constitutional supremacy. This was a part of the rule of law principles. J. Marshall further explained that between the Judiciary Act (1789) and the US Constitution, the Constitution shall prevail as it is the supreme law of the land. The Judiciary Act of Congress was thus declared invalid as being violative of the Constitution.

This case became particularly important not because of the decision it pronounced but for the principles it established while determining the case. The case followed the principle of constitutional supremacy. The judiciary also exercised its power of judicial review by declaring an Act void for violating the Constitution. The case also holds unrivaled importance in the history of the US for establishing and upholding the separation of powers doctrine in the country. These features together form the rule of law as we call it today. It was observed that the US Constitution and the power of judicial review in the US is an extension of the principle of rule of law. The principle of ‘the government of laws and not of men’ thus became the principle of the American legal system and governance.

The rule of law states that no person can act superior to the law of the land. A law must be made for the public welfare and everyone must obey it. Even the ones who make the laws (the legislative), enforce the laws (the executive), and all the officials and people with power must obey the law. A law inconsistent with the US Constitution is not valid. Rule of law also means equality before the law. A law that is discriminatory in nature, or is vague as to the rights of a certain section of society as compared to another, is not valid. Rule of law is a set of certain standards that, when followed, make a law valid and good. A good law is considered to restrain but not coerce people and gives enough room for every individual’s rights and freedoms. The law should be such that it gives liberty but not a license to do as they please. Thus, rule of law is aimed at establishing a perfect balance between freedom and reasonable restriction. In the end, the most basic and essential element is adherence to the supreme law. The Supreme Court of the United States intends to act like a watchdog of the US Constitution to maintain the purity of law and publish contempts and violations. The different branches or organs of the government were vested with the power to perform this function.

The US President is the supreme official who is vested with the responsibility of maintaining the rule of law and constitutionalism in the US. The President must ensure that the government, officials, states, and all the laws and legislation of the country are in adherence to the US Constitution. This obligation is vested upon the President right from the day he takes the oath and resumes office of the President. He vows to protect and defend the US Constitution (under Article II, Section 1, Clause 8). The Senators and other representatives of the US federation also swear loyalty to these vows. As the head of the executive and the supreme official, it becomes the duty of the President to ensure that the rule of law is abided by in the US.

United States v. United Mine Workers (1947)

The US Supreme Court Justice Felix Frankfurter while deciding the case of United States v. United Mine Workers (1947) observed that for achieving a free society law has to be administered through an independent judiciary. Absolute power in the hands of a few men will lead to chaos and tyranny. When the judiciary is absolutely free from political pressure and influences, it is said to be an independent judiciary. Justice Frankfurter believed that an independent judiciary is essential to uphold the rule of law. Independence of the judiciary will result in impartial decisions and every person will have an equal opportunity of being heard and guaranteed justice. The decisions made by a court shall also be subject to appeal and review from a higher court. This will ensure adherence to the rule of law by the courts by instilling accountability.

Gideon v. Wainwright (1963)

While focusing on the equality before the law principle of the rule of law, Justice Hugo Black observed in Gideon v. Wainwright (1963) that every individual, including an indigent criminal defendant, has the right to counsel. He observed that if a poor alleged criminal cannot afford to hire counsel to represent his case, the state has to provide him with the necessary legal assistance. He highlighted the Sixth Amendment to the US Constitution that guarantees the assistance of counsel to criminal defendants. Justice Black stated that fairness and impartiality in the trial cannot be claimed if the defendant has not been given equal standing before the law. If a defendant had to face the trial without legal assistance because he could not afford it, the trial could not be treated as a fair trial. He stated that from its very inception, the US Constitution has focused on procedural and substantive safeguards for ensuring fair trials in impartial courts and tribunals where everyone stands equal before the law. This is the rule of law.

Justice Anthony Kennedy’s interview

The US Supreme Court Justice Anthony Kennedy in an interview with ABA President William Neukom (2007) talked about the rule of law, saying that in America, the rule of law is considered to promote and ensure freedom, justice, and equality. The primary purpose of the rule of law in the United States is to promote basic rights. These values are further promoted by the US Constitution, which guarantees the basic rights of US citizens.

Advantages of the rule of law

The rule of law brought positive changes to American society. It brought equality between people and provided equal protection before law. Mentioned below are the many advantages the theory encapsulates:

Rule of law ensures and encourages judicial independence.
Rule of law upholds the values of the Constitution.
Rule of law limits the powers of the government and prevents arbitrariness.
Rule of law promotes transparency and equality in the legislative actions of the government.
Rule of law protects the people from inequality, and discrimination, and protects their legal rights, constitutional rights as well as civil rights.
By ensuring equality in opportunities and employment, the rule of law facilitates the economic growth of the state as more people get the opportunity to work.
Rule of law ensures two most important features in any democracy: constitutional supremacy and power of judicial review of the judiciary.
International rule of law promotes international peace, security and equality.
Rule of law provides for an accountable government that possesses transparency, honesty, and fairness.
Rule of law establishes a stable, corruption-free regime.

Criticisms of the rule of law

The rule of law from its inception of conceptualization has been criticized over phases and periods of its evolution. While some criticize it as being influenced by political pressures, others believe it favours the dominant classes of society. The feminists criticize the theory for its failure to value and address women’s atrocities. Mentioned below are the criticisms of the theory of the rule of law:

Criticism of a ‘legal person’ and its construction

While the rule of law theorists argued it to be naturally evolving, believers of Marxism and feminist movements argued it to be a result of social forces and factors. Marxism criticizes how the rule of law conceptualizes free and autonomous legal individuality. Marxism believes that the concept of free and equal individuals is not true in a society that is a result of production and the economic market. The rule of law and equality before the law principles shadow the honest construction of society with a concealed notion of legal individuality.

Feminists have criticized the rule of law for how a legal person is construed. They argued from the lens of feminist jurisprudence that a legal person under the rule of law is mainly focused on men. The nature of the portrayal of a legal person has shadowed and silenced the experience of women. This is said because the rule of law is only focused on providing equality in the public sphere, which essentially affects men. The atrocities of women in the private sphere is little or not addressed at all.

Criticism of features of equality, neutrality and generality

The rule of law claims to guarantee equality to all and equality before the law to all classes. It claims to be neutral for all genders and categories of people. Marxism criticizes these features as only existing in the paper. Marxism believes that the rule of law is a dominant ideology, made and modified for the benefit of the dominant classes of society. As the concept of a legal person itself is not true to its application in society, thus the logical reasoning of equality and neutrality does not hold true either.

The feminists criticized the concept of neutrality in the rule of law, saying that women’s rights have been suppressed and their voices silenced. As the rule of law addresses women’s rights and grievances negligibly, it cannot be said to be neutral. The rule of law is inadequate in providing legal equality to women.

The rule of law is criticized for favouring the dominant classes of society. Thus, the beneficiaries of this principle are ultimately the capitalists. Those who do not belong to these dominant classes of society continue to suffer in the hands of the law and anarchy that gives no legal importance to their rights. The rule of law is further criticized for increasing discrimination in society and the plight of the poorer classes, who get further oppressed. The dominant classes, empowered by the support of law, further assert dominance over the oppressed class. This in turn widens the gap between the rich and the poor in society.

Politics in law

The nature of rule of law is criticized as being influenced by arbitrariness and political pressures. Liberals claim the rule of law to be free from political influence, but this has been denied by critical legal scholars. They believe the law to be a result of domination by political conflicts between different political groups. Feminists criticize the rule of law as being discriminative in several concepts and procedures, such as rape trials.

A dominant ideology

The rule of law has been criticized as being a dominant ideology. Marxism believes an ideology to be socially construed and as a consequence of social factors that shape its existence. The rule of law expresses its ideology to be neutral, but in an evolving society, the ideology differs for different classes of people. The oppressed sections of society have a very different ideology and perspective on freedom, rights, and liberty than the elite classes. A neutral ideology can be claimed only when all the aspects and factors affecting the shaping of ideologies in society are completely understood. The rule of law is criticized for not having a complete understanding of the material history of society from its inception. Ideologies take different forms by socially contradicting ideas and experiences. The rule of law only takes into consideration the ideology from the perspective of ‘what is more evident.’ This has legitimized the ideology of the dominant class. The dominant classes of the society dominate the social relations and the rule of law is too, construed by it.

International rule of law

International law has never particularly defined what is the rule of law as a concept but it has been considered synonymous to law and justice, and also a political ideology that guides the international society as a whole. As the name suggests, international rule of law is concerned with the domestic laws of all the states being in adherence to the international norms of justice, and that all the states abide by the international rule of law and justice. Further, the international rule of law also ensures that the domestic law of different states are at par with one another and are based on similar standards of norms. As it always has been, the international rule of law aims to protect human rights and the international norms and standards are articulated in a manner that fulfils this objective. The international rule of law binds not only the states but also the international bodies and organizations that function together in achieving the common objective. Therefore, international rule of law can be regarded as a model rule of law for all international organizations, bodies, and states to make their regulating laws.

Mentioned below are some elements of the international rule of law:

The nature of law must be certain. It must be concise and provide accurate guidance in solving questions.
The international rule of law must be guided by the principle of “equality before the law” and every international body, organization and state must abide by it.
There must not be any chance of arbitrariness. The law must restrict the exercise of power by those in authority and must protect human rights.
The international rule of law must be implemented in solving disputes, enforcing judgements and making policies, in its true spirit.

International treaties and conventions promote the rule of law in the international sphere. The United Nations Secretary-General explains the rule of law as a principle under which all people, organizations and states are accountable for the publicly promulgated laws and the international norms and standards attached to them. It possesses features of separation of powers, supremacy of law, equality before law, fairness, absence of arbitrariness, legal certainty and transparency (Report of Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies, 2004).

Conclusion

The rule of law is an age-old principle. It was first observed in the 13th century AD and has evolved ever since. The concept has become a fundamental principle in national and international spheres. International law organizations set international norms and standards for the rule of law. These countries take inspiration from these standards and inculcate them into their domestic laws. The states follow the rule of law through their Constitutions. The rule of law principle was first formulated in the UK by Sir Edward Coke and Prof. A.V. Dicey, and thereafter, it gained recognition in the US and India. The US Constitution adopted the rule of law principle as a basic feature and made laws in adherence to this principle.

Frequently Asked Questions (FAQs)

Is the rule of law codified?

The rule of law is not codified under any Article of the US Constitution or international law. It is a principle that forms the essence of these laws. It is a basic feature that governs the laws and the government of a state. Under international law, these are a set of norms and standards that govern the relations between different states and subjects of international law.

How does the rule of law prevent arbitrariness?

The rule of law principles limits the powers of the government and puts reasonable restrictions. It mandates them to follow due procedures and also divides power between the organs of government. These features put a check on governmental actions and thus, prevent arbitrariness.

How is the independence of the judiciary related to the rule of law?

Independence of the judiciary and the power of judicial review are essential features of the rule of law. It keeps an eye on the laws made by the legislative and strikes them down if found arbitrary. It also prevents arbitrary actions of the government and its officials.

What is the modern concept of the rule of law?

The modern concept of the rule of law safeguards the political and civil rights of people. It guarantees socio-economic freedom and cultural and educational rights to every individual in a society. It does not interfere in the religious affairs of people. It guarantees a right to privacy. It ensures equality for the minorities and less privileged sections of society. It protects people from the government’s arbitrariness. It guarantees an independent judiciary to grant justice to people.

References

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