Essential Characteristics of a 'Rule of Law' Society

Albert Venn Dicey in Academic Robes

In the previous post, we talked about the difference between ‘rule by law’ and ’rule of law’. We understood that the basic concept of rule of law is to control the unlimited exercise of the power by the supreme law making authority of the country. Rule of law also means certain principles. Following are the principles on which a ‘Rule of Law’ Society is to be based:

1. Pre-eminence of Law – Dicey said that law must be general in character. In a society, where the law is made for individuals, such society is not a universal society. Laws are to be made general in nature. This does not mean that law must be uniform for everybody. As we know that classification of people is possible. So the law can be different for different people but the basis for classification must be reasonable. When law is made for a certain group, it must be based on a reasonable differentia which has a reasonable nexus with the purpose sought to be achieved.

Pre-eminence of law also means absence of wide discretionary powers. Dicey tried to observe that in France, the government servants in France were given wide discretionary powers to interfere with the private lives of the people. He said that law must not allow wide discretion to the administrative authorities. Anywhere, where there are wide discretionary powers vested with the authorities, there would be rule by law and not rule of law.

He also said that law must always be for future applications. Prospectivity is one of the key characteristics of ‘rule of law’. Law can have retrospective effect provided there is reasonableness and justness. However, criminal law cannot be made with retrospective effect.

Also. law must be certain and must be known in advance. Whatever law is there, it must be certain in the sense that it must give complete awareness about what is right and what is wrong so that a person can regulate his/her conduct accordingly. If the law is vague and uncertain, no matter it may be a law but it will not be ‘rule of law’.

2. Rule of Equality – Law must be based on the principles of equality. Equality means that all the persons must be subjected to the same system of courts and must be governed by the same law. Equality does not mean uniformity. It means two things:

a. Equity

b. Differentiated Equality

3. The Principle of Accountability – Everybody must be under the same law and no matter how high a person is, the law must always be above him. No special privileges and immunities should be given to any special person. Everybody must be accountable for the violation of law and must be accountable to the ordinary system of courts. In France, Dicey observed that there is no rule of law because the government servants were accountable to a different system of law and common man was accounted to another system of law. The differentiation made must be rational, just and fair. There should be only one agency to enforce accountability on the people.

4. Pre-eminence of Common Law - Dicey talked about the fundamental rights of the people. Rule of law means that the law should be based on the concerns of the Human Rights. If a law violates human rights of the people, then there is no rule of law. Law must honour the fundamental rights of the people and those rights must not be protected by any document. Those rights must be protected by accepting the customs and the traditions of the people.

Dicey was against including fundamental rights into any document or constitution. He said that if rights of the people flow from a document, then such a document could be thrown away by the successive governments. The fundamental rights of the people must be evolved from the customs and the traditions which no government can change and must be recognized by the administration. Every human being has certain inherent rights. A good example is that of Article 21 that is merely a reflection on the rights of the people.

If the law of any country is based on the above-mentioned four principles, it will be a ‘rule of law’ society and if not, it will be a ‘rule according to law’ or ‘rule by law’ society.

The rule of a law is a practical paradigm. Law has two aspects, law and enforcement. There may be a rule of law where all the characteristics of ‘rule of law’ society are present, yet if the law is not properly executed or interpreted by the courts, then also there won’t be a ‘rule of law’ society.