The rule of law possesses various definitions – on one hand it means that no person or government is above the law, and in another in means that no government or its officials can enforce laws that are unfair or unjust. The concept of “Rule of Law” is the building block on which a modern democratic society is founded upon, and hence inherently plays an important role in the process of making and maintaining laws.
Origins and Concept
The rule of law bears a history of over two thousand years, derived from the French phrase, ‘La Principe de Legality’ (the principle of legality), which refers to a government based on principles of law and not of men – the heritage of this argument about the Rule of Law, begins with Aristotle (c. 350 BC). Having formulated the question of whether it was better to be ruled by the best man or by the best laws, Aristotle implemented a form of consideration for the type of law under consideration, as well as the regime that enacted and administered the law in question. He also conceded, however, that some cases were so fraught with difficulty that they could not be handled by general rules – some cases required the focused insight of particular judges; he used the term epieikeia.
None the less, it is Edward Coke from whom the concept of Rule of Law originates, when he said that the king must be under the command of God, and the law, thus vindicating the supremacy of the law over the pretensions of the autocratic state. The concept of the Rule of Law is, however, a universally ancient concept. In India, for instance, the concept of the Rule of Law can be traced back to the Upanishad (written in India between c. 800 BCE and c. 500 BCE) and it provides that Law is the King of Kings; it is more powerful, with a greater hierarchic status than the monarch, and there is nothing that comes above it.
Through the works of mediaeval theorists, such as Sir John Fortescue (1471), who sought to recognise the lawlessness that stemmed from despotic forms of kingship, the expansion of the rule of law continued. “The second king may not rule his people by other laws than such as they assent to and therefore he may set upon them no impositions without their own assent.”
The first known use of this English phrase occurred, however, around the 16th-17th century, where it was found in a petition made to James I of England in 1610, from the House of Commons, and continued to appear throughout the early modern period, in the work of John Locke (1689). He emphasised the importance of “established standing Laws, promulgated and known to the People”, as well as James Harrington (1656), and Niccolò Machiavelli (1517), who fought similar battles. In 1607, English Chief Justice, Sir Edward Coke, said in the case of prohibitions (according to his own report), “that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace […] quod Rex non debet esse sub homine, sed sub Deo et lege (That the King ought not to be under any man but under God and the law.)”
The rule of law became further popularised in the 19th century by British jurist, Albert Venn Dicey. Born in 1835, he would go on to become a British Whig jurist and constitutional theorist. His book, ‘Study of the Law of the Constitution’ (1885), tried developing the concept of the Rule of Law. Dicey established the fact that the law is absolutely supreme and it excludes the existence of arbitrariness in any form.
His theory consists of three main principles:
- Absence of Arbitrary Power or Supremacy of Law
- Equality before Law
- Constitution is the result of the ordinary law of the land
Consequently, since its publication, his book has been the dominant form of analysis of the British constitution, and the source of orthodoxy, including the Rule of Law.
Contemporary Rule of Law
Today, Diecy’s theory of the Rule of Law cannot be accepted in its totality, as its modern concept has a fairly wide scope, and therefore sets up an ideal for any government to achieve. In today’s definition, the Rule of Law is “a set of laws that people in a society must obey: Everyone is subject to the rule of law”, as defined by the Cambridge English dictionary.
Ultimately, according to its modern definition, the rule of law comprises of multiple elements such as law and order, fixed rules, elimination of discretion, due process of law or fairness. Although having been developed and modified significantly, throughout the years, further alterations are in all probability, yet to come.
- Stanford encyclopedia of Philosophy, https://plato.stanford.edu/entries/rule-of-law/, Wed Jun 22, 2016
- Wikipedia, https://en.wikipedia.org/wiki/Rule_of_law, may 2020
- James Kirby, Taylor and Francis online, https://www.tandfonline.com/doi/abs/10.1080/01916599.2018.1498012?src=recsys&journalCode=rhei20, 26 Jul 2018
- Hindu stan times, https://www.hindustantimes.com/india/rule-of-law-is-ancient-indian-tradition/story-OUeb0AtWs90HioGmGgT39O.html 6 march 2006, march 6th 2006
- Cambridge dictionary, https://dictionary.cambridge.org/dictionary/english/rule-of-law