RULE OF LAW

Susanna Afutu, lecturer Central University

faculty of Law
The concept of the rule of law requires
that decisions are made by applying
known principles or laws without the use
of discretion. (Black’s Law Dictionary)
This
concept of the rule of law is at the
heart of constitutional law.
 Thereare 2 approaches here: the
formalist/descriptive approach :this is a value
free approach
 and the substantive/prescriptive approach:
proponents are interested in the contents of
the law

APPROACHES TO RULE OF LAW

The concept dates back to the time of
Aristotle (BC) who believed that people
would rather be ruled by a king who
ruled by the law than by a king who
ruled by discretion.
Natural law insists that the authority of
the law is from a higher source
Plato opined that the law must be
subject to some other authority besides
the state, i.e. it must be the master of the
government. In this situation, men enjoy
all the blessings that the gods shower on
a state.

NATURAL LAW SCHOOL AND THE RULE

OF LAW (PRESCRIPTIVE/SUBSTANTIVE)
Cicero also noted that true law is right
reason in agreement with nature.

NATURAL LAW THEORY AND THE RULE

OF LAW
Further Professor Lon Fuller, a natural law
scholar opined that a citizen is under no
obligation to obey an unjust law.
According to Fuller, a regime which
shows gross discrimination for the basic
precepts of morality is incapable of
creating law at all.
Hart critiqued the idea put forward by
Fuller, that bad law should not be
obeyed.
He reasoned that it was necessary to
recognize the validity of evil laws no
matter how bad they were.

RULE OF LAW AND THE POSITIVIST

SCHOOL (FORMALIST/DESCRIPTIVE)
According to him, this approach
enables such regimes to be held
accountable for their actions
committed under their laws
The Marxist view point which was put
forward by Karl Max believes that law
serves not to restrict the government or
protect human rights but rather to
conceal the injustices in the system.

RULE OF LAW AND THE POSITIVIST

SCHOOL
Marx was a philosopher who explored
socialist ideas and is the founder of
Marxism.
Marxism was developed by the followers
of Karl Marx into Communism.
His
theory was a critique on the capitalist
economy of Western Europe.
His view was that the laws of those
countries allowed the upper class to be
rich at the extent of the poor.
Prof. Joseph Raz, a leading modern
positivist, drew a distinction between law
and value laden ideals
He opined that a non-democratic legal
system based on the denial of human
rights, on extensive poverty, on racial
segregation, sexual inequalities and
religious persecution may,
inprinciple, conform to the requirements
of the rule of law better than any legal
system of the more enlightened Western
democracies.
Razproposed some principles which
must be respected in a society of law.
 The law must be clear if it is to be
capable of being obeyed
 The law must be publicized in order that
citizens are aware of its demands
 The law must be reasonably stable in
order that citizens can plan their lives
according to law
 the law must be prospective so that the
law does not require the impossible
 The law must be non-contradictory for
the same reason; and
 The courts must be accessible and the
judiciary must be independent
The view that the rule of law is separate
from value laden concepts is akin to the
theory of rule by law. Rule by law simply
means law governs
Albert Venn Dicey provided 3 main legs
of the concept of rule of law
1.No man can be punished except for a
breach of law. This also translates into
supremacy of the law or the rule against
retrospectivity.

A.V. DICEY AND THE RULE OF LAW

 2. Noman is above the law i.e. equality
of the law
3. Courts determine the rights of private
persons on a case by case basis.
 Supremacy of the law – art 1(2); Mensima v
AG [1996-97] SCGLR 676;
 Equality
before the law – art 17; GCB V CHRAJ
[2003-2004 ]SCGLR 91
 Certainty before the law and the regulation of
discretionary power – art 19(11), 296. Tsatsu-
Tsikata v AG [2001-2002] SCGLR 620; ignorentia
legis neminem excusat

A. V. DICEY
 Certainty & Predictability of the law – principle
against retrospectivity; art 19(5), (11).
 British
Airways & Anor v AG [1997-98] 1 GLR 35 -
75 – a repealed law cannot be the basis of a
criminal conviction
The need for the rule of law does not
erase the necessity of discretion
We cannot prescribe a set of laws
covering every facet of life or human
behavior

RULE OF LAW AND DISCRETIONARY

POWER
The issue then is to give guidelines for the
exercise of discretionary power so it is
not abused
Scholars like Ivor Jennings have criticized
Dicey for confusing the concept of the
rule of law with notions of protection of
individual liberties
Dicey was influenced by the law and
politics of Britain at the time.
For some scholars like Dicey, the
concept of rule of law is synonymous
with ideals like democracy, separation
of powers and independence of the
judiciary
Equality before the law art 17 (1) and 33
(1)
Fair trial art 19(1)
Lack of retrospective legislation art 107
(b)
Independent judiciary arts 33 and 127

RULE OF LAW AND THE 1992

CONSTITUTION
Discretionary power arts 23 and 296