Rule of Law is not a new concept. This idea was first recorded to have been
conceived by Aristotle, way back in 350 BC. His work on the topic, in fact, is
still considered influential. The trend continued with other eminent thinkers
such as Sir John Fortescue, John Locke, Montesquieu, etc. adding their
thoughts, and contributing to the development of the concept.
The formal origin of the word is attributed to Sir Edward Coke, and is derived
from French phase la principe de legalite
’ which means the principle of
legality. In India, the concept has been traced as far back as the
Upanishads, where it states that law is the king of kings. It is more
powerful and rigid than the kings, and there is nothing higher than the law. The
weak shall triumph over the strong and justice shall prevail by its powers.
theory has further been espoused by Indian thinkers such as Chanakya as well,
who maintained that the king should be governed by law.
The credit for developing the modern theory of Rule of Law, however, is given to
British jurist A. V. Dicey. He expounded the theory in his book called Study of
Law and Constitution. Dicey’s theory was based on three principles, commonly
called the pillars: Supremacy of law, equality before the law and predominance
of legal spirit. His ideas persist even today, though modern points of view have
since emerged. Inherent in this theory is the idea that the British way of
governance is a perfect example of rule of law.
However, Dicey was factually incorrect in this circumstance, since he completely
ignored the Constitutional maxim the king can do no wrong, which effectively
granted absolute privilege to the entire government by virtue of the Crown. He
also ignored the statutes that granted discretionary powers to the government
and outright ignored the growth of administrative law in Britain- which he
claimed was against rule of law. All in all, Dicey’s theory was the reason the
development of administrative law in the country began late in the day.
Joseph Raz: An Introduction
Joseph Raz is an Israeli legal, moral and political philosopher. He is renowned
for his conception of perfectionist liberalism and is also one of the most
prominent advocates of legal positivism. He was a professor of legal philosophy
at the University of Oxford Raz and is now a part-time professor of law at
Columbia University Law School and at King's College London. He received the
prestigious Tang Prize for rule of law in 2018.
Raz’s Theory of Rule of Law
Joseph Raz gave his theory of rule of law in 1979 through his book The Authority
of Law: Essays on Law and Morality. He draws heavily from FA Hayek’s work and
analyses the concepts of law and morality in a similar fashion.
According to him, Hayek has formulated the most powerful ideal of rule of law,
i.e., stripped of all technicalities this means that government in all its
actions is bound by rules fixed and announced beforehand – rules which make it
possible to foresee with fair certainty how the authority will use its coercive
powers in given circumstances, and to plan one’s individual affairs on the basis
of this knowledge.
Raz’s purpose, as he states in his book, is to analyze the ideal of the rule of
law in the spirit of Hayek’s quoted statement, and to show why some of the
conclusions he drew from it cannot be thus supported.
In his work, Raz has enumerated some basic principles that emerge from a study
of the idea of rule of law.
His eight principles may be enumerated as:
- All laws should be prospective, open, and clear
- Laws should be relatively stable
- The making of particular laws (particular legal orders) should be guided
by open, stable, clear, and general rules
- The independence of the judiciary must be guaranteed
- The principles of natural justice must be observed
- The courts should have review powers over the implementation of the
- The courts should be easily accessible
- The discretion of the crime-preventing agencies should not be allowed to
pervert the law
Application of the Theory
All laws should be prospective, open, and clear A law should not have retrospective action. One cannot be guided by a
retroactive law as it did not exist at the time of action. This especially
applies to criminal substantive law. Occasionally, it is known beforehand
that a certain law will be enacted retrospectively. In such a situation, it
would not be repugnant to the rule of law.
The common law principle of ignorantia juris non excusat makes it a
legal necessity for every person within India to have knowledge of the laws
of the land – indeed, the courts do not consider ignorance of the law as a
Therefore, the duty falls upon the state to notify the public of any enacted
legislation. In India, a law is considered to be enacted once it is passed
by Parliament and published in the Official Gazette. The law must be open
for all, easily accessible and adequately publicized. For the same reason,
its meaning must also be clear. An ambiguous, vague, obscure, or imprecise
law is likely to mislead or confuse at least some of those who read it.
Example: Any and all amendments to substantive criminal law must have
prospective action. This is so that an accused will not suffer increased
punishment because of a change which occurred after he had committed the
However, the same does not apply to procedural criminal law, for the most
part. A recent case sheds some light on the subject. In Mallikarjun v State
of Karnataka, the applicant was aggrieved by the fact that his appeal as
victim was not allowed by the High Court on the grounds that the offence
occurred prior to 31 December 2009 and the provision came into effect only
from 1 Jan 2010. It was held that the right of appeal accrues at the time of
delivery of judgement and hence the appeal should be allowed.
Laws should be relatively stable For formal conceptions, having law is valuable because, regardless of the
content of the law, legal rules that are properly framed, administered and
adjudicated enable predictability of legal outcomes and people's reliance on
the law, and hence serve people's autonomy interests.
The relative stability of law directly ties in with the procedures for
amendment of the law. The easier the process, the more likely it is to be
Example: Like any other written Constitution, the Constitution of
India also provides for its amendment in order to adjust itself to the
changing conditions and needs. However, the procedure laid down for its
amendment is neither as easy as in Britain nor as difficult as that of
USA. That is, the Indian Constitution is neither flexible nor rigid but
a rather a fusion of both. Article 368 in Part XX of the Constitution
describes the powers of Parliament to amend the Constitution and lays down
the requisite procedure. It states that the Parliament may, in exercise of
its constituent powers, amend by way of addition, variation or repeal any
provision of the Constitution in accordance with the procedure so laid down
for the purpose. However, the Parliament cannot erode the basic structure of
the Constitution by amending provisions which form part of it.
The making of particular laws (particular legal orders) should be
guided by open, stable, clear, and general rules There must exist some stable, general rules to guide the making of laws.
According to Raz, conformity with the rule of law is a matter of degree. It
is morally valuable because, in serving the values of predictability and
certainty, it reduces opportunities for arbitrary state action; and in doing
so, it is capable of expressing respect for human dignity by taking
seriously people's ability to plan their lives. He also argues that
particular laws must be subject to general laws.
However, in the Indian scenario, it is a settled principle of law that the
special law will prevail over general law. The scope of the Code of Civil
Procedure, for instance, is such that where there is a conflict between the
Code and a special law, the latter shall prevail (the Code being a general
law). Where the special law is silent on a particular matter the Code
applies, but consistently with the special enactment.
Example: A recent case which dealt with the IT Act and IPC upheld
this principle. In this case, the issue was whether the Appellant who has
been discharged under Section 67 of the IT Act could be proceeded under
Section 292 of IPC. The apex court held that the High Court had erred in its
reasoning that though charge has not been made out under Section 67 of the
IT Act, yet the Appellant could be proceeded Under Section 292 of IPC. The
proceedings as such instituted against the appellant were quashed.
The independence of the judiciary must be guaranteed The concept of judicial independence is much more complicated and ambiguous
than it seems. Judicial independence can be generally defined in terms of
freedom – responsibility – to rule based on the facts and the law, and thus
freedom from undue external restraints. This definition of judicial
independence can accommodate both common law and civil law
traditions. Independence plays an important role in a system of
governance, but it is reasonably compromised to some degree by concerns for
Independence of the Judiciary is a salient feature of the Constitution of
India. This organ has often been named the custodian of citizens’
rights, and in a federal system (such as India) it also acts as the
balance-wheel by settling inter-governmental issues. Separation of
Executive from Judiciary is also dealt with under Art. 50, which is a
Directive Principle of State Policy.
Example: The basic principle of the right to a fair trial is that
proceedings in any criminal case are to be conducted by a competent,
independent and impartial court. In a criminal trial, offences are said to
occur against the state rather than an individual. As such, the state
functions as the prosecuting party and the investigating agency, the police,
is but an agency of the state. It is therefore important that the judiciary
is not burdened with executive influence and control, whether direct or
indirect and is able to function in an impartial and fair manner.
The principles of natural justice must be observed Natural justice is also known as common sense justice. Rules of natural
justice are not in a codified form. These principles are imbedded or
ingrained in the conscience of human beings. It supplies the omission made
in codified law and helps in administration of justice. Natural justice is
not only confined to fairness; it will take any shade and colour
based on the context. Thus, natural justice apart from fairness also
implies reasonableness, equity and equality. They are neither cast in a
rigid mould nor can they be put in a legal straitjacket. These principles of
nature are written in the heart of mankind – they are immutable, inviolable,
The principles of Natural Justice basically are of two kinds : i) no one
should be condemned unheard (audi alteram partem), ii) no one should be a
judge in his cause (nemo judex in cause sua). The principles of natural
justice are fundamental aspects of the Constitution. Though they flow from
Article 14 of the Constitution, the Supreme Court has held that these
principles would exist even in the absence of such a provision.
Example: In India, the principles of natural justice are embedded in
procedural law. One of the primary tenets for conducting a fair trial is
compliance with the principles of natural justice. Another example is that
of preventive detention. According to Article 22(5), the detainee is to be
afforded "the earliest opportunity" of making a representation against the
order of detention.
The courts should have review powers over the implementation of the
other principles Judicial Review is the power of the judiciary to interpret the Constitution
and declare any law or order of the legislature and executive void, if it
finds them in conflict the Constitution of India.
A democracy without some form of judicial review is considered deficient.
Although the spread of judicial review of administrative law predates and
does not track the same historicity of judicial review of legislation, the
nexus between the two, and their cross-fertilization, has become evident.
The European Court of Justice, tersely and compellingly, defined a central
aspect of the very rule of law as requiring any legal act affecting the
status of any legal actor as being potentially subject to review by a court.
Where judicial review of an administration once obsessed with issues
of intra and ultra vires and a weak form of rationality as criteria for
substantive review, today both versions have placed proportionality as the
central tool and characteristic of review.
Judicial review has two important functions, legitimizing government action
and protecting the Constitution against undue encroachment by the
government. It is a part of the basic structure of the Constitution of
Example: The biggest example of judicial review in India is the case
of IC Golaknath v State of Punjab wherein an eleven judge bench of the
apex court, by a majority of 6 to 5, reversed its earlier decisions in Sajjan
Singh and Shankari Prasad and declared that Parliament under Article
368 has no power to take away or abridge the Fundamental Rights contained in
Part II of the Constitution.
The courts should be easily accessible Everyone should be able to access the judicial machinery of the country as
and when necessary. The central position of the courts within this machinery
makes their easy access of paramount importance. Long delays, excessive
costs, etc., may effectively turn the most enlightened law to a dead letter
and frustrate one’s ability effectively to guide oneself by the law. Right
to access justice and right to speedy trial are both fundamental
rights under Article 14 and 21 of the Constitution of India. Legal aid is
also one of the prominent methods through which attempts are being made to
increase accessibility of the lay man to the courts.
Example: Order XXXIII of the Civil Procedure Code is essentially a
provision for providing legal aid to those who are unable to access justice
due to high litigation costs. Legal Aid by itself is a topic for debate and
deliberation in India, its need being recognized now more than ever. This
provision under the Code also protects natural justice by enabling all
citizens irrespective of caste, creed, occupation, economic background to
stake claims in the court of law.
The discretion of the crime-preventing agencies should not be allowed
to pervert the law It is not just the court which, through judicial activism or otherwise, may
pervert the law. The actions of the police and prosecuting agencies can also
have a similar effect. For instance, allowing the prosecution to decide
which cases to prosecute or which people to prosecute is highly unfair and
goes against one of the very basic tenets of society today – the right to
equality. It is, of course, a well settled principle that discretion
leads to arbitrariness, and arbitrariness stabs at the very heart of Article
Example: When any offence has been committed, the police is bound by
law to register the case by means of a First Information Report (FIR). Under
section 154 of the Code of Criminal Procedure, in case the police officer
in-charge refuses to register an FIR, the person so aggrieved may send the
relevant information to the Superintendent of Police who will then proceed
Rule of Law has undergone many trials in India. The shape and form that it has
today is the product of many, many decisions taken by learned men over the
years, and the path has not been straight. This essay has analysed the formal
concept of Rule of Law as given by Joseph Raz. His eight principle virtues have
been examined in light of the Indian scenario. What emerges is the fact that
India does, for the most part, adhere to Raz’s ideal but somewhere the unique
Indian character has shown through. The country has adapted and adopted the
principles to suit its own purposes, forming a mixture that is unique – for
better or worse.
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