Internal Assessment I

Doctrine of Rule of Law by Joseph Raz in India

ADMINISTRATIVE LAW

NAME: SRIDATTHA CHARAN

PRN: 17010126402
COURSE: B.B.A LL.B [III YEAR]
DIVISION: E
 ADMINISTRATIVE LAW - INTERNAL ASSESSMENT I

TABLE OF CONTENTS

INTRODUCTION....................................................................................................2
BACKGROUND......................................................................................................2
ANALYSIS..............................................................................................................3
DRAWBACK OF RAZ’S ANALYSIS.......................................................................5
THE INTRINSIC INCONSISTENCY.........................................................................6
HUMAN RIGHTS AND RULE OF LAW..................................................................6
PRACTICAL APPLICATION IN INDIA...................................................................7
CONCLUSION........................................................................................................8
BIBLIOGRAPHY.....................................................................................................9

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INTRODUCTION

The ‘Rule of Law’ in its literal meaning, refers to the ‘rule of law where people should obey
the law and be ruled by it. It is not to be taken in political and legal theory where the
government shall be ruled by law and subject to it’. This basic idea has been highlighted by
philosopher named Joseph Raz. Born in Mandate Palestine, 1939, Joseph Raz is a Hebrew
philosopher who graduated from the University of Oxford with a Doctorate degree and
presently, professing at King’s College London, teaching Law1.

Joseph Raz is known for his continuous work towards developing legal positivism and
amongst his various publishes (such as ‘The Concept of a Legal System’), he is widely
known for his analysis on other philosophers and authors work. In the light of this, Raz had
published an article on F.A. Hayek’s theory of ‘Rule of Law’. However, before getting into
the article, it is important to get a brief knowledge about F.A. Hayek and his work2.

While Joseph Raz is a legal, moral and political philosopher, Friedrich August Hayek is an
Austrian economist and philosopher, who is well known for his work and defence of classical
liberalism. Apart from serving in World War I, Hayek was appointed as a ‘Companion of
Honour’ in 1984 for services to the study of economics3.

BACKGROUND

The ‘Rule of Law’ according to F.A. Hayek, has “two significant bodies as to fit the
foundation for economics. One body refers to the ‘Principle of Isonomia’ (which means
“equal law” in Greek) where if, rules apply equally to everyone, isonomia will exist in spite
of governments’ activities.”4 The other body refers to the ‘Principle of Limited Government’
where the “Constitution of Liberty’ has been meticulously studied. Through this principle,
Hayek considers government to provide with protective service to the state, that is, to
implement rules of just conduct among the people, the general public. – In other words, the
1
Golding, M.P. and Edmundson, W.A. eds., 2008. The Blackwell guide to the philosophy of law and legal
theory. John Wiley & Sons.
2
Raz, J., 2009. The authority of law: essays on law and morality. Oxford University Press on Demand.
3
Linz, J.J. and Stepan, A.C., 1996. Toward consolidated democracies. Journal of democracy, 7(2), pp.14-33.
4
Baird, Charles W. “Hayek on the Rule of Law and Unions | Charles W. Baird.” FEE, Foundation for Economic
Education,

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Hayek argues that under ‘Rule of Law’, the government is the classical night-watchman of
the state. Within the theory of Hayek’s about the rule of law, there are many points that seem
to fit the reality while other points may have seemed to be controversial 5. While most people
support the unions in believing their struggle for freedom of association, few others see to it
as confusion, prevailing majorly because of the rapidity with which the nature of problem has
changed. For example, voluntary association of workers in many countries have only been
legalized when intimidation force was used upon workers who were unwilling to cooperate –
they strictly kept out of the field of employment. Thus, for the fewer aspects of Hayek’s
theory of rule of law (that weren’t agreed by all), an article written by Joseph Raz in the year
1979 was published, and the same was included in his book called “The Authority of Law:
Essays on Law and Morality”6.

ANALYSIS

As mention, being a philosopher, Joseph Raz scrutinizes mainly upon subjects that deal with
morals and values that revolve, or should revolve in and around a society. According to Raz,
there are particular procedural values that go side-by-side with law and the same is essential
for attaining ultimate internal morality. While F.A. Hayek’s view of rule of law includes the
aforesaid two significant bodies, Raz disapproves of Hayek’s conclusion 7. According to
Joseph Raz, the principles that should be weighed within rule of law, comes from nowhere
but the basic idea of rule of law itself. Speaking of which, it should include, laws that are
open, clear and prospective. It should also maintain stability and be guided with proper,
transparent general rules. Not to mention, there must be an independent judiciary where
courts are accessible and finally, crime-preventing agencies should be prevented from
perverting the law. “Considering this, it is clear that Joseph Raz view of rule of law comes
from the concept of legal positivism; that is to say, rule of law confers to the conventional
nature of law that is socially structured with positive standards, consider and brought in by
competent legislators.”8

5
Chemerinsky, E., 2007. Toward a practical definition of the rule of law. Judges J., 46, p.4.
6
Aiyar, S., 2000. The problem of law's authority: John Finnis and Joseph Raz on legal obligation. Law and
Philosophy, 19(4), pp.465-489.
7
Hussain, N., 1999. Towards a jurisprudence of emergency: colonialism and the rule of law. Law and
Critique, 10(2), pp.93-115.
8
Iep.utm.edu. (2019). Legal Positivism | Internet Encyclopaedia of Philosophy.

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Looking at this chapter by Joseph Raz, it has been highlighted that he does not look at rule of
law as that of the ‘good law’ because that would mean that such nature is of a complete social
philosophy one. In reality however, the ‘Rule of Law’ should is not to be confused with
‘Democracy’. There is a need of political and legal system in a society, more so than just pain
the “good”, without which, the conformity of rule of law would be trumped. In today’s age,
of the world, it is not easy to separate the truth from the false; hence, a legal system is
imperative for a coherent view of virtue in society9.

Likewise, it is important the difference between political impressions of governments and the
legal notion in a society. Take Britain for example: Britain is governed by trade unions.
Suppose the trade union of Britain, for Parliamentary purposes, breaks industrial relations
(with other nations), a violation of the rule of law will be realised 10. This then, clearly directs
to the fact that government cannot be said to be entirely based on law alone. While lawyers
look upon law as conditions lay under the system’s rules that are recognized, a common
man’s view of view about law is simply the relativity of stable law 11. In the light of this, a
society needs both general and particular laws in order to function in a stable manner, the
same way as it needs both government by laws and government by men – mere ‘government
by law and not by men’ is not a smart interpretation for a transparent, consistent society.
Additionally, for the doctrine of rule of law to be applied successfully, it must be able to
guide the behaviour of its subjects12.

Moving on, Joseph Raz view upon the values of rule of law also differs as to that of F.A.
Hayek’s one. According to Raz, not all values are being served. Rule of law is frequently
seen at par with arbitrary power but that is not the real case. While rule of law is narrower,
arbitrary power is a broader term. Some of the forms of it are seen to be attuned with the rule
of law, but there also are other forms that don’t fit the same way. For example, the
government, being subjected to the rule of law, cannot change law whenever it feels fit to do
so for its purposes, whether or not such purposes are valid. Arbitrary powers cannot be used
for personal gain or avenge – such steps do not fit in the rule of law13.

9
Finnis, J., 2011. Natural law and natural rights. Oxford University Press.
10
Raz, J., 1971. Legal principles and the limits of law. Yale. LJ, 81, p.823.
11
Halperin, J.L., 2011. Law in books and law in action: the problem of legal change. Me. L. Rev., 64, p.45.
12
Trebilcock, M.J. and Daniels, R.J., 2009. Rule of law reform and development: charting the fragile path of
progress. Edward Elgar Publishing.
13
Bedner, A., 2010. An elementary approach to the rule of law. Hague Journal on the Rule of Law, 2(1), pp.48-
74.

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Adding on to the above, Raz also emphasizes upon long term goals for better sowing of the
values of rule of law. This is to say, not only the government, but also, and mainly the general
public, the layman, should know the law, not only for short-term decisions. The same is
missing and for a stable society to prevail, it is imperative that people must have knowledge
about law for long-term decision-makings.

Moreover, the positive characteristic of Raz’s formal conception shows that Judicial Activism
has its limitation. The reason behind it is that, in legal positivism, law is established by the
rules that are enacted and not by their content, hence, the judiciary, for the same manner,
plays the role of “shadow” of a legislation. This furthermore emphasizes the fact that
judiciary is seen as independent as Raz wrote it to be 14. Judges cannot deliver judgement
freely and should not depart from the law on the basis of social necessity.

Finally, the remark of Joseph Raz to Hayek’s theory of ‘Rule of Law’ is that there are some
of the policies that are made in the field of economics, are for the wrong economic reasons.
Such policies violate the main aim of the rule of law as the arbitrary power takes over 15. He
argues that rule of law is preferably a negative value which means it is designed to reduce
barriers of freedom created by law. If following certain goals that complements the rule of
law, it can be done so, but not by legal means. But this again, brings contradiction to the rule
of law, as it majorly facilitate the law to prevail for a proper, transparent social order. Hence,
turning the other side away from other social norms as to the rule of law would only give law
no concrete ground of its own.

DRAWBACK OF RAZ’S ANALYSIS

Although there are certain points brought in by Joseph Raz that can be considered, his
commencement does not have full merit, especially when it comes to individual-rights
managements. With that, Raz had also contradicted his own statement that is of legal
positivism. 16

In his book ‘the Authority of Law: Essays on law and Morality’, the title of the chapter
(where he argued about F.A. Hayek’s book on rule of law), was ‘Rule of Law and its Virtues

14
Raz, J., 1990. The politics of the rule of law. Ratio Juris, 3(3), pp.331-339.
15
Waldron, J., 2017. Is the rule of law an essentially contested concept (in Florida)?. In The Rule of Law and the
Separation of Powers (pp. 117-144). Routledge.
16
Eyer, K.R., 2008. Administrative adjudication and the rule of law. Admin. L. Rev., 60, p.647.

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- this title in itself is contradictory to the contents of the chapter 17. “Firstly, the article started
off by highlighting F.A. Hayek’s powerful formulations of rule of law. However, it then
departs off towards ‘rule of law having fewer values included’. Then towards the end of the
article, the subject of “values” come into light again, but in a different tone altogether. Dr.
Raz states that law would be barren without social goals on the altar of the rule of law 18.

Secondly, Hayek’s conclusion has been constantly disapproved of by Joseph Raz on the
grounds of ‘misleading notion’ but what’s significant here is that, Hayek did not mention
anything about ‘rule of law overriding other important values’ – it was Hayek’s attempt
through his book, to show the readers that overlooking the rule of law was what led to
instability in terms of poor living standards, including poverty. Having said that, Hayek did
not put it to the readers that progressive measures and liberal movements should be sacrificed
on the altar of the rule of law, as Raz had critically wrote about it (in his article). Taking this
19
into account, it can be said that Joseph Raz had misread the book by F.A. Hayek.” For the
same reason, there are fields, within Raz’s article that may not be entirely agreed upon,
especially due to the contradictions that are created.

THE INTRINSIC INCONSISTENCY

When we look at Joseph Raz’s statement, it is evident that it contains formal aspect of
element. Nevertheless, that is not enough, especially when the aspects form a challenge. Raz
stated that ‘freedom is limited’ and in the same book, he highlighted that ‘one of rule of law’s
key virtue is to protect an individual’s own freedom’ 20. Here, one can clearly see how he
contradicts with his own view about the rule of law and its stand. “Moreover, he mentions
that there is no security or assurance by the state to its citizens when it comes to human
dignity – the same had been spotted when Raz compares the rule to that of the ‘gross
violations of human rights’. Again, there is contradiction that is naturally weighted upon
against Raz’s view of Legal Positivism”21.

In addition to the above, while Raz stated that the main element of rule of law is to have an
independent judiciary that has no influence from politics, he once again contradicts the fact
that the judiciary was not all that independent. One of the major examples to support this
17
Peerenboom, R. ed., 2003. Asian discourses of rule of law. Routledge.
18
Peerenboom, R., 2003. Varieties of rule of law. In Asian discourses of rule of law (pp. 23-75).
Routledge.
19
Mcilwaine, M. (2019). Upholding The Rule of Law.
20
Bogdandy, A.V. and Ioannidis, M., 2014. Systemic deficiency in the rule of law: What it is, what has
been done, what can be done. Common Market Law Review, 51(1), pp.59-96.
21
Barbero, Ariel. “The Rule of Law.”

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would be the fact that non-Aryan judges in Germany, during the Nazi rule, were expelled
from being a part of the judiciary. Hence, keeping in mind the above, it can be said that there
in inconsistency in Raz’s statement on his views of rule of law. 22

HUMAN RIGHTS AND RULE OF LAW

Going through the Raz’s chapter, it can be said that his approach has minimal points on
fundamental human rights protection – his work shows to be a more of a domineering
government coming into place. Need for such domineering governing would only mean that
the formal concept (approached by Raz) is trumped over. Additionally, Raz did not agree
with Hayek’s view of “all citizens being treated equally” and this one of the few other points
for why he wrote this article. Nevertheless, Raz once again, manages to confuse the readers
about his point – stating that “substantive component of rule of law is lacking which makes
certain laws unfair” leads the readers back to the same contradiction. If one shines the light
upon ‘substantive component’ it is clear that ‘natural law’ plays a part on it; and by that,
natural law means a state where all people are seen and treated equally, as bestowed upon, by
the Creator.

PRACTICAL APPLICATION IN INDIA

In India, critics are of the opinion that the Rule of Law is only a concept without any
application. It cannot be denied that while our nation is one where corruption runs wild and it
performs well on the receptiveness of Government and democratic control 23, in the class
restricted Government powers, India positions itself on the 37 th number out of 97 nations
reviewed worldwide and is the first among five in its regions and comes second out of the 23
lower middle income nations. However, the rule of law is only an abstract concept meaning it
exists only on papers and not in real life. It is disappointing to say that India performs
ineffectively with regards to the procedural viability. Nevertheless, India comes 83 rd and 96th
in the whole World where there is absence of corruption and order and security exists.24

Another hard situation which India is facing is that of old laws in addition to the problem of
corruption in the legal and justice delivery system. One of the drawbacks was that India
22
Grenfell, L., 2013. Promoting the rule of law in post-conflict states. Cambridge University Press.
23
2012 World Justice Project
24
Rule of Law in India, manupatrafast.com, http://www.manupatrafast.com/articles/PopOpenArticle.aspx?
ID=61fb07af-8c80-4868-b707-b9939e9dae87&txtsearch=Subject:%20Administrative%20Law (last visited July
25, 2019)

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hasn’t adopted the Sunset proviso in its laws. After independence, the Indian Independence
Act stated that all the existing laws would be existing under the new framework unless it is
denied by the Parliament. To prevent a situation of anarchy in the after effect of
independence, some of the laws that were drafted to suit the nature of that time have become
difficult to interpret in the present condition while it provided the country with a confident
arrangement at that time. So this prompts vagueness trying to decipher those provisions25.

The question of judiciary encroaching upon the other organs of the Government in the name
of judicial activism still persists. There exists a question of contemplation about the degree to
which the Courts can confine the activity of different organs. The self-conferment of power
by the judiciary is not permitted under this doctrine. The Court’s understanding and judgment
are never exclusively satisfactory to guarantee the Rule of Law. Some acts that undermine
this principle are corruption, fake encounters and unfair policies.26

CONCLUSION

As to conclude, philosopher Joseph Raz’s chapter on F.A. Hayek’s theory of rule of law have
been criticized by the other writers such as Bingham and Ellis. One of the main reasons
being, the lack of acknowledgement towards protecting unavoidable individual right, that is,
fundamental rights. While Raz argues that the independent judiciary should prevail,
Bingham views are towards having certain legal lines that should be marked around
individual rights. Similarly, Ellis argues that there should prevail a much more universal
recognition of rights that are non-derogable which means ‘right to be free from inhumane-
torture’, ‘right to be free from slavery’ and ‘right to life’ including right to a fair trial,
freedom of thought, choice of religion and other non-discriminatory rights. Thus, it is clearly
viewed that Joseph Raz’s writing fits the perception of a formalist. In point of legal
positivism, Raz’s chapter stands strong alone, but on the other hand, there is no guarantee, or
certainty towards individuals’ fundamental rights. For this matter, his work does not entirely
fit with the rule of law. Also, when Raz brought into light the subject of substantive
conception of rule of law, he failed to deliver that such concepts can only be applied if there
is a distinct difference being shown between derogable and non-derogable rights – while
derogable rights are those rights that can be applied with accordance to society’s perspective

25
Indra Sahwney VS. Union of India, AIR 1993 SC 477
26
P V Narasimha Rao v. Union of India, AIR 1998 SC 2120.

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(that vary from place to place), non-derogable rights are those rights that should be
universally accepted. Lastly, it can be said that the statements made by Joseph Raz
throughout this chapter within his book (“The Authority of Law: Essays on Law and
Morality”) take account of inbuilt contradictions and such contradictions may have weaken
his point of explanation, in reference to the rule of law.

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BIBLIOGRAPHY

1. Baird, Charles W. “Hayek on the Rule of Law and Unions | Charles W. Baird.” FEE,
Foundation for Economic Education, 1 Dec. 2006, fee.org/articles/hayek-on-the-rule-
of-law-and-unions/.
2. King's Site. “King's College London.” Robert Plomin - Research Portal, King's
College, London, Lippincott Williams and Wilkins,
kclpure.kcl.ac.uk/portal/en/persons/joseph-raz(69ea6cd2-5151-4cdd-bc94-
13abc2754544)/biography.html.
3. Iep.utm.edu. (2019). Legal Positivism | Internet Encyclopaedia of Philosophy.
[online] Available at: https://www.iep.utm.edu/legalpos/ [Accessed 23 Jan. 2019].
4. Caldwell, Bruce J. “F.A. Hayek.” Encyclopaedia Britannica, Encyclopaedia
Britannica, Inc., 27 Sept. 2018.
5. Mcilwaine, M. (2019). Upholding The Rule of Law. [online] Murdoch.edu.au.
Available at: https://www.murdoch.edu.au/School-of-Law/_document/WA-jurist-
documents/2016-Vol-7/Western-Australian-Jurist---McIlwaine---Stand-Alone-
Final.pdf [Accessed 10 Jan. 2019].
6. Barbero, Ariel. “The Rule of Law.” Are Rawls and Hayek Compatible?, 1 Jan. 1970,
rule-of-law-not-of-men.blogspot.com/2011/11/joseph-raz-against-friedrich-hayek-
on.html.

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