Meaning and Background of Rule of Law
The meaning of rule of law is the absence of any arbitrary power in the state. Government being the greatest force of the state, sometimes may not act as the protectors of individuals rights but rather tend to exploit the people. These acts of government are against the will of the people. In order to make state act constitutionally and legally, the concept of rule of law has been developed.
The term rule of law is the combination of two words rule and law. Rules means way of governance and law means set of rules. Rules of law denotes to a set of rules and laws that are required to govern a country. If there is law, there is rule. According to Prof. Jeffry Jowell, “Rule of law provides principles which requires feasible limits on power.” Bracton opines that “the king should not be under the men but under the God and law.” Fairness of procedure is the mechanism of rule of law to prevent arbitrariness. Simply, rule of law means the existence of public order. Whatever, the country that may be either facist or socialist or liberal; must live under the rule of law and must follow the norms and cause of rule of law.
The terms rule of law means rule according to law and rule under law. No branch of government is above the law and no public officials may act arbitrarily or unilaterally outside of law. It’s means noone either they are king or prime minister or president must act under rule of law or abide by Law. Rule of law is derived from the French phrase “La principle de legality.” Which originally means government based on principles of law not of men. The concept of rule of law was begun from origin of the doctrine of natural school of law. Aristotle was the first person to say something about the term rule of law. According to him, “Rule of law is preferable to r rule of any individuals.” He further added ” Government by Law is superior then by men.” Similarly, the theory of rule of law is introduced by A.V. Dicey, in his book named ‘An introduction to the study of the law of the constitution’ (1885 AD). He described about the following features of rule of law in his book.
i. Absence of arbitrary power : No man is above law. No man is punishable except for a distinct breach of law established in an ordinary legal manner before ordinary court. The government cannot punish anyone merely by its own will.
ii. Equality before law : Every man, whatever his rank or condition, is subject to the ordinary law jurisdiction of the ordinary courts. No one is above law.
iii. Constitution is the result of the ordinary law : Constitution is the result of the ordinary law because to conduct the human behaviour and to protect the citizen’s rights, various rules have been developing from the ancient time. Such rules play a vital role to develop the modern constitution.
Background principles of Rule of law
Scholar Joseph Raz has given the following elements of rule of law.
Law should be prospective, open and clear
Law should be relatively stable
The making of particular laws should be guided by open, stable, clear and general rules
The independence of judiciary must be granted.
The principles of natural justice must be followed.
The courts should have the power of judicial review
The courts should be easily accessible
The discretion of the crime preventing agencies should not be allowed to pervert law.