Relevance of Dicey’s Rule of Law

Trishangi Kulshrestha[1] & Vaibhav Jeswani[2]

Abstract

Dicey’s rule emphasizes on supremacy of law above all the factors in the society. This was given by Albert Vann Dicey and hence named after him. This states that law stands above the one governing it and everyone stands equal before the law. Rule of law mainly provides guidelines to treat every citizen of a country with justice and equality. It acts as a building block for the democratic society.  In this research paper we have started off with the basic overview and history of the topic which further goes on to highlight the features, advantages and disadvantages of the rule. The debate regarding the adaptation of the rule is also mentioned at the end of this paper. Our main aim was to highlight the relevance of the rule in this era. We have done that by applying the features of the rule in the Indian scenario, by taking an example of a country we have dealt with real problems a country faces and how this rule of law stands as a solution to all those cultural, political and social difficulties. We have thrown light on pros and cons of this rule and finally concluded with its relevance in today’s era. This research paper shows that how implementing of Dicey’s rule accelerates development of a nation.

Overview

The term ‘Rule of Law’ is derived from the French phrase ‘la principe de legalite’ which in its literal team means The Principle of Legality.

Its origin is said to ancient as the following ideas and principles were discussed by Greek philosophers like Plato and Aristotle around 350BC and even before them it is said to be followed during the rule of King and Lord Rama who believed in the supremacy of laws and was therefore also called as “Maryada Purushottam”, Maryada means the property of conduct and Purushottam is a term used to describe someone who is peerless among men, this phrase thus in itself describes the importance he gave to laws and equality. The evidence of the same was found in the Ramayana, written first by a Hindu sage called Valmiki. The Greek philosophers too referred to a number of Indian mythological texts before they came up with their philosophies.

Plato in his writings emphasized on the perfect division of work and authority and further stated that “where the law is the master of the government and the government is its slave, then the situation is full of promises and man enjoys all the blessings that god showers on the state.” The following idea though was based on the natural law theory but gave an edge to the power of laws over that of the state as he believed that laws originated from a higher authority and must be followed always. Similarly, his disciple, Aristotle also said that “law should govern and those who are in power should be servants of the laws.”

A similar ideology was later developed by Albert Vann Dicey and he came up with a simple rule that said, “no matter how a person is, in the social society; the law is above all.” He further gave three principles to support the same –

  • Supremacy of law
  • Equality before law
  • Predominance of legal spirit

The expression ‘rule of law’ in its true sense is not a rule or a law but is only a guideline to provide equality and justice to all. It describes a state of affairs where everything is going as per the laws and focuses on the importance of laws to provide justice to all without any discrimination. It was observed that people with power like the Crown, Politicians and Law makers were misusing their powers and considered themselves above the law thus to provide justice to all Dicey came up with this principle.

History

Rule of law has been the building block of origin of democratic society. The term ‘Rule of Law’ was derived from the French phrase la principle de legalite which means the principle of legality. The Rule of law was originally established in the thirteenth century in the reign of Henry III. Back then a judge named, Bracton introduced this concept. He stated “The king himself ought to be subject to God and the law, because law makes him king.[3]” Though he did not give any specific name to this definition introduced by him, but this in the later years helped philosophers to establish the actual concept of rule of law .Further, the idea of rule of law was also mentioned by the jurist, Aristotle. He stated that law should govern.

The credit to establish the entire theory of rule of law goes to Sir Edward Coke. He was a barrister, judge and jurist. His reports have been called, “perhaps the single most influential series of named reports.” He defined about the supremacy of law over the executives. In India, Upanishads also stated about Law is king of kings. But the actual explanation of this was not given until Professor A.V. Dicey introduced his book in the year 1885, “Introduction to the Study of the Law of the Constitution”.  He explained about the three principles of law in his book giving a base for democratic structure. He criticized any system which was partial and where government was above the law. He did not like the French system where there were separate courts made to deal with issues of government officials. He found it against the notion of democracy and supremacy of law. He explained all these notions in his book giving rise to the excessive use of “rule of law”.

Features

  1. Certainty of law – the rule of law made sure there is a certainty of law and it is not being changed constantly or being misused by a particular class with power.  
  2. Supremacy of law – the rule of law emphasized on the supremacy of law as Dicey believed law is the supreme ruler and everyone must be governed by the same laws and principles.
  3. Equality before law – not only supremacy of law he also believed in equality before law as until and unless everyone is equal before law there could be no supremacy of law and people with power can easily get away by using the provisions for their benefits.
  4. No retrospective effect – law must not be passed to take effect from a date in past, an act which was not punishable in the past must not be made punishable on a future date after it has been committed.

Advantages

  1. Enhances individual rights – the principle focuses primarily on the equality before law and therefore puts everyone on an equal stratum so that people not only get access to courts against the people in power but also get fair and just trials. It bars the use of power by the authority so that no undue influence is done and an equal opportunity and platform is provided to everyone in order to get justice and stand for their rights.
  2. Protects and promotes freedom of judiciary – it ensures that all the functions are performed smoothly and without any interference from any source whether internal or external so that fairness and equality is maintained at all the levels and people with power are not using it to their advantage. This maintains the individuality and freedom of judiciary which is of utmost need in an independent country as without judicial freedom the people will not be truly free as there would a constant misuse of power otherwise and majority of people will be under a constant threat from people with power.
  3. Preserves the constitution – the rule of law ensures the supremacy of the constitution as constitution is ultimately the law of the state and the ‘rule of law’ ensures certainty of law in the state in order ensure stability and consistency in the laws and to make sure that they are not changed very frequently or for benefit of an individual or a group of people only.
  4. Prevents arbitrariness – the rule of law prevents the arbitrariness on the part of government officials and employees and also makes sure people are well aware of their rights and liberties and no interference in done with the same and a quality of life is maintained.

Disadvantages                                                                   

  1. Discretionary powers – the use of discretionary powers by the people with authority is completely against the rule of law as it gives them an upper hand over others and they can use the same to their benefits and if misused this discretionary power can lead to widespread discontent which would result into a further rift between the different sections of the society.
  2. Rights do not emanate from the judicial decisions only – Dicey looked at laws from a single side and believed fundamental rights and liberties emanate from the judicial decisions only has ignored the rights based on common law.
  3. Restrictions on jurisdiction – a person can easily escape the penalty by escaping the jurisdiction of the law and unless the person is somehow found and apprehended, as well as extradited back to where the law had jurisdiction over him, the person will escape justice.

Relevance of Dicey’s rule in today’s era

Dicey’s rule of law is commonly applicable in all the democratic countries. Dicey’s rule has a lot of significance in today’s era. The features of this rules helps in building a better legal system as well as a better society. Legal system holds intact all the parts of the country. A country without a proper legal system is not bound to prosper. Proper working of a country’s lawful structure is directly propionate to development of that country.

We will take into consideration the relevance of Dicey’s rule in today’s era by taking example of India.

India is a country with one of with a very high degree of crime. It is in the list of top 5 countries with highest crime rate. With each developing year, the crimes in India are also increasing and this calls out for the need of efficient legal system. Hence proper working of the judiciary is required reduce the crimes by punishing the wrongdoer.

The Judicial system of India is given proper freedom to punish every wrongdoer irrespective of his position, caste, and creed equally. India courts aim at treating a highest positioned government official in the same manner how a lay man is treated in the court. No interference, external or internal is made in how judiciary is doing their work. This kind of system helps reducing crimes in the country.

Next reason why it is relevant is that, Dicey’s rule accelerates equality in society. Equality is the basic feature of democracy. Due to difference in caste, creed, religion, gender in the country equality is needed to keep peace and harmony in the society. This principle insures every person gets equal rights and is treated in the same manner. A person in power or a common man is given equal rights and kind of discrimination is done while treating any of them. This abolishes the chances of misuse of power. When a citizen’s rights and freedom in a country is guaranteed by providing them equal rights their patriotism towards their nation goes on increasing at a tremendous rate.

Another advantage that it serves which makes significant in today’s era is that it gives Supremacy of law over judiciary. This means that law is above the one who is governing it. Law inscribed in constitution is king of kings. This conserves the constitution and preserves the origins of the country. Modernization and globalization tend to stutter the roots of society. With wave of liberalization everything in the country kept on changing from traditions to professions. Due to this it is important to keep the constitution unchanged and the legal system intact and undisturbed. When the laws are not ever-changing but consistent, governing the legal system gets easier. Supervising the crimes, society, policies and as a country as whole gets stress-free when the basic governing system is steady.

Looking at the advantages of adopting Dicey’s rule in India most of the democratic countries have chosen this rule of law. Due to this reason I would definitely suggest that though there are some disadvantages of Dicey’s rule but its advantages overlook all those demerits. Moreover, every phenomenon has pros and cons and as per this research it is surely significant to adopt this rule of law.

Conclusion                                                                         

Constitutions are concerned with allocation of power and the control of its exercise. Power leads to corruption and therefore it is necessary to keep such authorities with power under check and make sure there is no misuse of the any power. Dicey’s rule of law has been widely accepted and recognized as it provides the solution of the same and maintains a government of laws and not of men. The rule of law in an idea which every constitution has and legal system has adopted to some extent at least as it is of utmost importance to have a content society which is not possible to attain without principles of equality and if such principles are not followed then the masses will protest against the crown which will finally result against them therefore not only as a measure to provide equality and stability but the following principle is followed with minimal implication at times just to maintain a political stability and keep the crown intact.

In true sense the rule of law put major focus on a single point that is, ‘the makers of the law must follow it themselves’ as if they themselves do not follow it then it cannot be expected from the other people of the state as well and this will lead to a situation of complete chaos and instability therefore it is extremely important to understand and implement the rule of law in today’s contemporary world as people are now aware of their rights as an individual and as a society both and if not provided with the same then they even understand the power of masses and can overthrow such a power. The principle is the base of good and fair governance and must be followed at all times in order to appreciate the rights of individuals.


[1] Student, Bba-Llb, Symbiosis Law School Noida.

[2] Student, Bba-Llb, Symbiosis Law School Noida.

[3] Origin of the concept of rule of law, LAWTEACHER (November 28, 2019), https://www.lawteacher.net/free-law-essays/administrative-law/origin-and-concept-of-rule-of-law-administrative-law-essay.php#ftn4.