Formal and Substantive Aspects of the Rule of Law - Essay Example

Order 165957 RULE OF LAW a) Formal and substantive aspects of the rule of law The term rule of law refers to the principles of legality which refers to a government based on principle of law and not of men (J.J.R, Upodhaya, Administrative law, 4th edition, 2001). Therefore the rule of law is opposed to arbitrary powers. Rule of law is one of the basic principles of the English constitution. The doctrine has been enshrined in the constitution of U.S.A. and the constitution of India as well. Sir Edward Coke, the chief justice in James 1's reign is said to be the originator of this great principle. In the battle against the king, he succeeded in maintaining that the King must be under God and the law and thus vindicated the supremacy of law against this concept, that Dicey developed the doctrine of coke in this classic book "The law and the constitution" Published in 1855. According to Dicey (Ibid), the rule of law is one of the cardinal principles of the eight legal systems. He attributed the following aspects of the rule of law. a) Supremacy of law: Rule of law means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power or discretionary power. It excludes the existence of arbitrariness of prerogative power or even wide discretionary authority on the part of government. Dicey asserted that the Englishmen were ruled by the law, and the law alone. He denied that in England the government was based on exercise by persons in authority or wide arbitrary or discretionary powers. (Constitution Law, 8th edition) b) Equality before law: According to this doctrine of rule of law, there must be equality before the law or equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. In England, all [persons were subject to one and the same law and there were no extraordinary tribunals or special courts for officers of the government and other authorities. According to Dicey (Ibid) courts are supreme throughout the state. He criticized the French legal system of Droit administratiff in which there were separate administrative tribunals for ordinary people and civil servants. c) Predominance of legal spirit: Explaining the third postulate, Dicey says that general principles of the constitution are the result of judicial decisions of the courts in England. In many countries rights are guaranteed by a written constitution while in England it is not so. The rights are the result of judicial decisions in concrete cases which have actually arisen between parties. The constitution is not the source but consequence of the rights of the individuals. (J.J.R. Upadhaya Administrative law, 4th edition) In substantive sense, the rule of law sets an ideal for any government to achieve. These aspects of rule of law are as under:- a) Under rule of law, the function of legislative is to establish and maintain conditions that uphold dignity of man as an individual. b) Effectiveness of the government capable of maintaining low and order and ensuring sufficient economic and social conditions of life for free society. c) Independence Judiciary. In analyzing the formal and substantive aspects of the rule of law we can say that they are compatible with each other. This can be proved by the fact that formal aspects as well substantive aspects address the issue of fairness. This fairness is geared towards giving or affording people their rights. They should be heard and protected at all times. Both the aspects of the rule of law aim at affording an individual his independence in terms of his economic stability and his fundamental rights. In this regard both the aspects of rule of law do not conflict with each, but they endeavour to create certain conditions like political, social, economical, educational and cultural conditions which are essential to the full development of his personality. The rule of law is a dynamic concept which changes with change in social, economic and political values and valuations in society. The basic postulate however remains fullest development of individual personality keeping view the interests of society. In both aspects there is agreement that the main objective of both aspects is to get rid of excess powers where the sovereign reigns and disregards the rule of law. The rule of law should prevail in all arms of the government; Executive, Judiciary and Legislature. It is a founded fact that law required the government to be subject to the law, rather than the law subject to the government. In this sense the government will be guided by the elements of rule of law. Therefore all aspects are compatible in that they address the freedom of individuals and disregard total abuse of power by the sovereign. The powers of the executive should emanate from the law. The law should be viewed as a system of control of administrative power. b) Function of the Rule of Law in United Kingdom The doctrine of the Rules of Law is clearly enshrined the constitution of the United Kingdom. According to wade (Administrative Law, 1988, ), the British Constitution is founded on the doctrine of the rule of law. Similar view is given by Yardley (a source book of English Constitution Law, 1970). He observes that in broad principle the rule of law is accepted by all as a necessary constitutional safeguard. Dicey's theory has thwarted the recognition and growth of the rule of law in England. However, there cannot be a complete absence of discretionary powers within the administration. The doctrine of rule of law has struggled to put an effective control over the increase of executive and administrative powers and keeps those authorities within their bounds. The supremacy of the ordinary courts of law is accepted. Therefore the courts should control the actions taken by the administrative authorities. It is the duty of the courts to see that the authorities exercise their powers within the limits of law. The doctrine of rule of law as expounded by Dicey was never fully operative in United Kingdom even in his days. There were and are many exceptions and restrictions to it. Wade (Ibid) rightly states that if he had chosen to examine the scope of rule of law in England, he would have to admit that even in 1885 there existed a long list of statutes which permitted the exercise of discretionary powers which would not be called in question by courts' and the crown enjoyed immunity under the maximum "The King can do no wrong". Another observation of the rule of law in England is given by Wade and Philips (constitutional Law, 1960). They point out that, "It is contrary to the rule of law that the discretionary authority should be given to government department or public Officers, and then the rule of law is inapplicable to any modern constitution". Mathew J also says, "If it is contrary to the rule of law that discretionary authority should be given to government departments or public officers, then there is no rule of law in any modern state (Indira Nehru Gandhi v. Raj Narain, AIR 1975). We can therefore point out that the rule of law performs a useful function in the United Kingdom. The rule of law remains a distinctive feature in the constitution of United Kingdom. This can be proved by the fact that in United Kingdom no man can be made to suffer punishment or pay damages for any conduct not forbidden by law. Every man's legal rights or liabilities are determined by the ordinary courts of law and each man's individual rights are for less the result of the constitution. Further, the rule of law performs a useful function in United Kingdom in the sense that the constitution of United Kingdom prescribes the concept of equality before law. In United Kingdom there is equality of law to all. All persons are subject to one and same law. Therefore courts are supreme throughout the state. The constitution of United Kingdom recognizes the supremacy of the law. It is this rule of law as enshrined in the constitution that the government rides on. Finally we could say that the rule of law in United Kingdom plays a vital role. This is evident from the fact that the general principles of the constitution are the result of judicial decisions of the courts. The judicial decisions give rise to individual rights. It is these individual rights arising from concrete cases that are enshrined in the constitution therefore is not the source but consequence of the rights of the individuals. In this way rule of law postulates judicial supremacy. Bibliography 1. J.J.R, Upodhaya, Administrative law, 4th edition, 2001, Central Law Agency 2. Barnett, Randy E. The Structure of Liberty: Justice and the Rule of Law. Oxford, UK: Clarendon Press, 1998. 3. Allan, T.R.S. Constitutional Justice: A Liberal Theory of the Rule of Law. New York: Oxford University Press, 2001. 4. Allan, T.R. S. Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism. Oxford, UK: Clarendon Press, 1993. 5. Elster, Jon and Rune Slagstad, eds. Constitutionalism and Democracy. Cambridge, UK: Cambridge University Press, 1988. 6. Sager, Lawrence G. Justice in Plainclothes: A Theory of American Constitutional Practice. New Haven, CT: Yale University Press, 2004. 7. Chemerinsky, Erwin. Constitutional Law: Principles and Policies. New York: Aspen, 2nd ed., 2002. 8. www.hcourt.gov.a 9. www.oycf.org 10. Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction. New Haven, CT: Yale University Press, 1998. Read More