4.

Rule of Law
-Dharma Raj Paudel
“Be you never so high, the law is above you”
-Thomas Fuller
 4.1 Concept of Rule of Law
Introduction
• Rule of law is a vague and multi- dimensional concept
• Independent ,impartial and competent justice system is the cornerstone of
rule of law
• Justice is an end and rule of law is a means to achieve that end
• Independent and competent justice system is an institution to transform the
concept of rule of law into living reality in our context
• Constitution is a politico-legal document enacted to promote rule of law
• Article 1 of the present constitution stipulates constitutional supremacy to
test the constitutionality of legislation
• Judiciary is one of the institutions on which rests the noble edifice of
democracy and rule of law.
 Contd.
• Rule by law is opposite to rule of law that demands just, fair and
reasonable law
• Magnacarta , 1215 declared that “we will sell to no man, we will not deny
or defer to any man either justice or right”
• Greek philosopher Aristotle opined that the rule of law is better than that
of individual
• Rule of law is antithesis both to dictatorship and anarchism
• For the citizen, rule of law is both prescriptive; dictating the conduct
required by law and protective to citizens, demanding that government acts
according to law
• Rule of law and arbitrariness are sworn enemy.
 Contd.
• Right to equality is the lifeline and essence of rule of law
• Expounder of rule of law A. V. Dicey mentioned equality before the
law and equal protection of law as the concept of rule of law
• He also added rule of law as a right not to be subjected to
imprisonment , arrest or other physical coercion in any manner that
does not admit of legal justification that is to protect liberty of
human beings
• Lawlessness in governmental control upon corruption, nepotism,
abuse of power has an adverse impact on the notion of rule law.
 Origin of the concept of Rule of Law
• Justice Edward Coke is the originator of the concept of rule of law
• Justice Coke said that the King must be under the God and the Law
• A.V. Dicey, British constitutional thinker later developed the concept of rule of
law
• Natural law thinker developed the idea of reason , equality and good
conscience
• Philosophy of laissez faire , propounded by Adom Smith, developed the idea of
minimum of state interference and maximum of individual liberty
• John Locke emphasized on sanctity of private rights as individualism
• The concept of welfare state contributed maximum of happiness and minimum
of sorrow among the people that is related with rule of law.
 •
A.V. Dicey on Rule of Law
A. V. Dicey gives the concept of rule of law containing three principles:
• Absence of discretionary power in the hands of the government officials because every exercise of discretionary power gives room for arbitrariness
• All the persons irrespective of status must be subjected to the ordinary courts of the land
• General rules of constitutional law are result of ordinary law of the land
• Delhi conference of I.C.J. defined that rule of law is a dynamic concept which should be employed to safeguard and advance the political and civil rights of the individuals in a free society.

• s
 Lon fuller’s Eight Elements of Law
Concerning Rule of Law
• Law must be in existence and should be obeyed by all
• Law must be published and promulgated publicly
• Law must be prospective not retroactive in nature
• Law should be intelligible and written with clarity
• Law must avoid contradictions
• Law must not command/ require the impossibilities
• Law must be consistent/be stay constant through time
• Law must be free from ambiguities
 Lord Binghom’s Eight Essential Principles of
Rule of Law

• Law must be accessible , intelligible ,clear and predictable

• Legal right and liability should be resolved according to law
• Law should be applied equally to all
• Public officials must exercise their power with good faith, fairly and
reasonably
• Law must afford protection of human rights
• State must provide a way of resolving disputes
• Adjudicative procedure provided by the state should be fair
• Rule of law requires compliance by the state with its obligation in
national and international areana.