Viability of A.V.Dicey’s Rule of Law in 21st Century

Yashi Bajpai[1]

Abstract

Rule of law has essentially been derived from the French phrase “la principe de legalite”. The intention of enacting “rule of law” was to protect the individuals from the arbitrary actions of the government officials, and incorporating the major gist that law is above all the individuals. The rule of law appears to have origins in the classical thoughts of the Greece, Roman, in India, one can find the trace in Upanishads. Rule of law is also said to be originated by the Chief Justice Sir Edward Coke during the reign of the James I, where he declared that the king comes under the God and the law.

By this phrase, he means 1) The omnipotence of the law indirectly meaning to say, the absence of the arbitrary or the discretionary power exercised by the servants or the officers of the state; 2) The equality before the law, i.e. equal subjection of everyone before the ordinary law of the land to be enforced by the ordinary courts or the tribunals; 3) The principles or the spirit of the law.

In this article I am also comparing the aspects of administrative law in France which Dicey strongly dissented with, as it was in opposition to his principle of rule of law which was fundamental to the constitution of England.

Objective of the article: In this article, I am trying to discuss the origin of the rule of law. How A.V. Dicey elaborated on the Rule of law and popularized it. Further, I am also discussing the importance of the concept, the flaws in the concept, how the concept is partly applicable and how this rule of law is not partly applicable in the 21st century.

Introduction

Rule of law has essentially been derived from the French phrase “la principe de legalite” which comes to mean essentially, “principle of legality”. In laymen terms it means a government or an institution based on the principles of law rather than a government run on the principles of men. The intention of enacting “rule of law” was to protect the individuals from the arbitrary actions of the government officials, and incorporating the major gist that law is above all the individuals whether he is holding any position, be it the Prime Minister himself or any clerk, no one is above the law, not even the king. Governance must be by rule, and not arbitrary, vague and fanciful. According to Dicey, in his book “the introduction to the law of constitution” wrote that the foremost feature of rule of law is the utmost supremacy of the central government throughout the world, the second feature which is very closely knitted with the first is the supremacy of the law, as opposed to the arbitrary powers of the government and other state officials, servants. The dominance of the law or if we may say, the protection of the individual rights under the English constitution was the core of his treatise under the rule of law in his book titled” constitution…”

If one tries to trace back the origin of the rule of law, one upon reading from several sources would find that the concept seems to bear its origin to classical Greek thought quoting the lines and the sayings of the Aristotle, Plato, Romans had also contributed to it in a both positive and a negative way. In India one can trace back the concept of rule of law in the Upanishads, wherein it has been written that law is the king of the kings. Some claim that the rule of law originated by the Chief Justice Sir Edward Coke during the reign of the James I, he declared the that king comes under the God and the law, and also that the executive falls under its tutelage. One of the biggest examples of the origin of which the history of human kind had ever witnessed was the Magna Carta,1215 wherein the people of the Runnymede had gained for themselves the security for their rights, and made the king sign the instrument wherein everyone including the actions of the king were under the same responsibility for the wrong done as anyone, this was one of the achievements. A.V. dicey has been majorly credited with augmenting and popularizing the phrase “rule of law” into a principle which came to form the ground for many major modern legal systems in the world including that of the Indian, American constitutions. By this phrase, he means 1) The omnipotence of the law indirectly meaning to say, the absence of the arbitrary or the discretionary power exercised by the servants or the officers of the state; 2) The equality before the law, i.e. equal subjection of everyone before the ordinary law of the land to be enforced by the ordinary courts or the tribunals; 3) The principles or the spirit of the law. The common law rules of the constitution, in contrast to the civil law rules of the other European countries, are the consequences of the rights of the hoi polloi and not the source of it.

Dicey, in his book ‘Introduction to the law of constitution’, enumerates how the famous people such as Voltaire, De Lolme, Tocqueville or Gneistwere struck or quite taken aback by the way of life, the traditions and the customs of the Englishmen wherein everyone was governed by the rule of law, and there was hardly any space for the prerogatives of the executive officers. He also goes on give the account of the famous French legist Tocqueville where, Tocqueville gives a comparison between the constitutions of the Great Britain and Switzerland, putting forth the differences where Great Britain protected the personal liberty of the citizens, the press was protected and the jury was known, about how the people of UK had the love for justice, and recognized the importance of various laws, actively participated in public affairs, discussions and were ready to go to any extents to preserve their rights unlike the people in Switzerland.

Dicey, claimed that the rule of law could be viewed in 3 different ways which I have listed above. Delving into the first view he claimed that law is above everything, as has been reiterated by me several times till now. A man cannot be lawfully punished or deprived of his goods for any other reason apart from the breach of the law which has been put in place through a fair and a legal procedure. Dicey did not differentiate between the terms arbitrary and discretionary, according to him where there is discretionary power vested in the official, there is a room for arbitrariness. He gives an account of the famous French literature writer Voltaire who had faced a lot arbitrariness on the hands of the French government officials, and ultimately the price at which he was able to save his life at property was after all exile from France, Voltaire had claimed as soon as he had placed his foot in Britain, he knew that he had stepped into the land where the laws were relentless but there was respect for justice and people were not ruled by whims of certain class of people, there was at least no despotism.

In the second place, Dicey held that the rule of law not only meant that the law was predominant but another major attribute of it was the equality before law, he elaborated by saying that every individual, whatever be his post or rank, be it the clerk or the President, was subject to the same ordinary law of the land and subject to the same responsibility for the acts committed without any legal justification as any other before the ordinary courts or the tribunals. It is here where Dicey distinguishes the law of the England and that of the France, to be specific a portion of the French law i.e. the administrative law or the ‘droit Administratif. Though he distinguishes here and says that even then the “soldier” and the “clergymen” of the Churches were governed and dictated by the official law, because of the special rights and liabilities in their legal position, and did not come under the jurisdiction of the ordinary tribunals. But, on the whole, it was in no way inconsistent with the law of the land, despite this they were still expected to discharge the same duties as any other citizen of the country.

Finally, coming to the 3rd different sense in which the rule of law could be seen was that of the pre dominance of the spirit of the law. Dicey, here asserts that unlike a majority of the legal systems in the world, the fundamental rights and the liberties of the individuals here is the result of the judicial decisions and hence it forms a part of their constitution. In majority of the countries, the major laws written like that of freedom from arbitrary arrest, detention, freedom of expression, freedom of press were visibly seen to be deduced from the principles enshrined in the constitution, where the legislators took upon themselves to shape up the various principles , forming the back bones of the various rights and duties of the citizens, because they felt that is exactly the way of doing it Dicey here, in a way distinguishes between the both, and lays down that when in a state of emergency the fundamental rights can be suspended as has been written in the book of the constitution, but where the rights of the private individuals is the result of the judicial decision of the law, it cannot be taken away, as it was already decided and held to be a part of the land. Dicey had also majorly focused on the remedial laws, he asserted that an act as that of habeas corpus is equal to 100 principles of laws laid down, as coming to the practicality, and thinking in a realistic manner, it was only this act which was consequential and had the power to regulate or control the people and make the law effective.

Dicey while differentiating between the England’s rule of law and the administrative law of England, i.e. ‘droit admistratif’ , Dicey in its totality condemned this portion of law, going to the extent of claiming that he could not find a satisfactory equivalent of the term droit admistratif’ in his language, coming to the meaning ,according to him it afforded the officials and other bureaucrats to exercise their power in whatever way they wanted which was inspired from the fact that they were not subject to the ordinary rule of the land, in turn the law that they were administered by other special or the less official bodies which was lenient and let them off for the wrongs committed by them, nor was the institution or the state department they were working under was held liable. He felt this was totally inconsistent with the principles and the traditions of the England. Here, he also gave the example of a famous French legist of that time Tocqueville who after having read through the principles on which the England’s constitution and American constitution found no sound principles which marked the basis of the administrative law. As a consequence of that he wrote to an experienced French Judge Monsieur De Blosseville, soliciting an authoritative explanation on what principles the administrative law was based on, and the differences between the principles of US constitution and the French, the reason for all this he gave was enhancing his own knowledge on the same. The point Dicey tries to drive in here is that, if a legist of Tocqueville’s genius found this topic to be of substantial importance and wanted information, it indeed needed to be delved into, analyzed and examined more closely as it was of much consequence to the country.

Addressing the issue of whether the Dicey’s rule of law was applicable in the 21st century. It appears to me that it can only partly be applicable and not fully. It is partly applicable in the sense that to ultimately provide justice to the citizens it is very much necessary that the law be supreme, otherwise it would lead only lead to the misuse of the powers by the influential authority. Equality of all the classes before the law is now an essential to almost every constitution, and one in 21st century cannot fathom any such law with remedial measures not being in force in any country. Speaking on how the Dicey’s rule cannot be partly applicable, the major point that I would like to bring to light is that he does not distinguish between arbitrary power and discretionary power. It has to be understood very clearly that discretionary powers are a must which have to be given to the executives, legislators can’t sit and devise, decide all the small details and nuances of their law, the way a law has to be implemented in a particular territory, differs from area to area, a lot of details have to be looked into, and further laws have to be made accordingly, so that the citizens do not face any problems, the needs of every area are different. If the Central government starts investing time into the looking into small details in order to avoid giving powers to the executives to exercise it on their own discretion, who would further look into the other important matters concerning the country in its entirety. Giving more discretionary powers to the executive officials who would further appoint other committees comprising of experts to look into the issue and suggest further measures to be taken for efficient governance shall result in good governance. Arbitrary exercise of the powers indeed has to be avoided but there must be good laws laid by the center in this regard. There must be proper principles, guidelines and basic framework governing the policies to be made by the executives be laid down in such a way that whatever laws are further enacted by the executives in any forms there must be a clear guideline and a clear objective in mind before its formulation. And, the most important aspect is the strict penalties to be incorporated, to be enforced by the courts, which acts as a deterrent for the Executives or the other bureaucratic officials to deviate and act according to their own whims and fancies, thus curbing the misuse of powers. One cannot totally resort to the extreme measure of stripping the executive of the discretionary powers accorded to them. Power of delegated legislation is very important and cannot be ignored at any costs. Not giving them the discretionary powers, would only amount to increasing the burden of the Central government which would further result in the wastage of the time, resources of the country and ultimately result in the creation of laws not suitable to every area of the country, creating more problems to the citizens, thereby leading to burdening of the courts. Instead, more focus must be given to the creation of laws which control the power bestowed on the executives and reduce the illegal usage of the powers.

Finally, coming to the conclusion, I would like to state that rule of law is a very important concept and one cannot be more grateful to A.V. Dicey for having popularized and elaboration of the concept, which quite much forms a fundamental principle of many constitutions in the world. Constitution must in all the cases be considered supreme and all the other laws passed must also pass the test of reasonableness and objectivity. One will not be able to do justice to the concept of rule of law, if the states do not fulfil their duties in a fair and a just manner. The court’s interpretation and judgments are never solely adequate to ensure the observance of Rule of Law. Corruption, fake encounters, unfair policies all undermine rule of law. One cannot fully idealize it without analyzing it thoroughly, even the practicalities and the dynamic changes of the society has to be taken into consideration. Though on the outset the concept overall seems very attractive, yet when being looked at closely there are a lot of considerations to be made. The principle has some great points and some flaws. It has many aspects and all the aspects have to be analyzed in a proper way, as all of it bears repercussions finally to be faced by the citizens of the country.


[1] Student, Rajiv Gandhi National University Of Law, Patiala.