Rule of Law versus Rule by Law

A headmaster issues a thick book of school rules and enforces it strictly, but the book says nothing about him. He can add a rule on Monday, apply it to what a student did last Friday, and punish his critics, and no one can question him. That school is governed by rules. In another school the headmaster too must follow the book, cannot punish without a rule announced beforehand, and can be overruled by an independent board. That school is governed under rules. The first is rule by law, the second the rule of law. Both have rules; the difference lies in who is bound. Note 40 explains the rule of law and its Indian development; this note sharpens the contrast with its counterfeit.

1. Two Relations between Ruler and Law

The rule of law means that law is supreme over those who govern. Officials may act only under legal authority, are subject to the same law as citizens, and can be held to it by independent courts. Rule by law means that government uses law as its tool. It governs through statutes, decrees and courts, but it is not itself bound, because it can change, suspend or ignore the rules whenever they stand in its way. A simple test is to ask what happens when the rules become inconvenient to those in power. Under the rule of law they must obey them or change them openly, prospectively and within constitutional limits; under rule by law they simply bend them.

2. The Rule of Law: Law above the Ruler

The ideal is ancient. Aristotle held it better for the law to rule than any one citizen; Bracton placed the king under God and the law; Coke, in Prohibitions del Roy (1607), told James I that the King could not decide cases in person; Harrington (1656) coined the empire of laws. Dicey gave it three meanings: supremacy of regular law over arbitrary power, equality of officials and citizens before the ordinary courts, and a constitution resulting from the ordinary law (Note 40). Every one of these is aimed at the ruler, not the subject: the rule of law is a discipline for those who govern.

3. Rule by Law: Law as the Ruler's Instrument

Rule by law is not lawlessness. It is often intensely legalistic; what is missing is any legal restraint on the rulers themselves. The classic theoretical model is the Chinese Legalist school associated with Shang Yang and Han Feizi (fourth and third centuries BC), which taught that the ruler should govern through clear laws backed by rewards and severe punishments. Law (fa) was the ruler's instrument for controlling subjects and ministers, and the ruler was its source, not its subject.

Modern examples are familiar. The German Enabling Act of 1933 allowed Hitler's government to make laws without the Reichstag, and the Nuremberg Laws of 1935 stripped Jews of civic rights through duly enacted statutes. Emergency regimes show the same pattern of detention laws, censorship and ouster clauses. In theory, Austin's legally illimitable sovereign is exactly the ruler whom law cannot bind (Note 38); Hart, by contrast, showed that legal systems contain rules that constitute and limit the law-makers themselves.

4. Thin and Thick Conceptions

Where does rule by law end and the rule of law begin? The answer depends on how much content the rule of law is given (Note 40). Thin or formal conceptions look only at the form of law. Joseph Raz (1977) derived the rule of law from the idea that law must be capable of guiding conduct. He accepted that a non-democratic system resting on the denial of human rights could in principle conform to the rule of law better than some enlightened democracies, and likened it to the sharpness of a knife, a virtue usable for good or ill. Fuller's eight principles set a similar formal test, though Fuller argued that meeting them has moral worth and that total failure produces no law at all (Note 65).

Thick or substantive conceptions add content: Lord Bingham (2010) included the protection of fundamental human rights, and Dworkin contrasted a 'rule-book' with a 'rights' conception. Brian Tamanaha, in On the Rule of Law: History, Politics, Theory (2004), arranged the versions on a scale. Formal versions run from rule by law (law as the instrument of government action), through formal legality (general, prospective, clear and certain law), to democracy plus legality; substantive versions run from individual rights, through dignity and justice, to social welfare. On this map rule by law is not so much the opposite of the rule of law as its thinnest and least valuable form: government at least acts through law rather than naked force, but nothing prevents it from making any law it likes.

5. The Two Compared

6. Rule by Law in Action: The Emergency

On 25 June 1975 an internal Emergency was proclaimed under Art. 352. A Presidential Order under Art. 359 suspended the right to move any court for the enforcement of Arts. 14, 21 and 22, and thousands were detained under the Maintenance of Internal Security Act. Every step was taken in legal form, which is what makes the Emergency the Indian textbook case of rule by law.

Parliament answered after the Emergency. The 44th Amendment (1978) amended Art. 359 so that the enforcement of Arts. 20 and 21 can never be suspended, and replaced 'internal disturbance' with 'armed rebellion' as a ground for proclaiming an Emergency under Art. 352. The constitutional text now forbids the very device that ADM Jabalpur upheld.

The same contrast underlies the Hart-Fuller debate (Note 65). In 1944 a German wife denounced her husband under Nazi statutes for remarks against Hitler; in 1949 she was convicted after the war. Radbruch's formula (1946) would deny the Nazi statutes the character of law; Hart preferred open retrospective legislation; Fuller answered that a regime of secret decrees and retroactive statutes had ceased to be a legal order. All three saw that rule by law can wear the full dress of legality.

7. Indian Safeguards against Rule by Law

8. Evaluation

Rule by law is seductive because it looks like law and can deliver order, even efficiency. But it offers the citizen no protection against the actor most able to harm him, the State. The rule of law insists that government be under the law, that the law be knowable and prospective, and that independent judges can hold officials to it; thick conceptions add respect for rights. India's Constitution, through Arts. 14, 20, 21 and the basic structure, has chosen a thick conception. The Emergency showed that the difference can turn on a single judgment, and that one dissent can keep the idea alive until the law returns to it.

9. Frequently Asked Questions

Q. Is rule by law the same as lawlessness?
A. No. Rule by law uses statutes, courts and procedure, often strictly. What it lacks is any legal restraint on the rulers, who can make, change or suspend the rules at will. Lawlessness has no rules; rule by law has rules for everyone except those in power.

Q. Can a regime satisfy the formal rule of law and still be unjust?
A. On Raz's thin view, yes: the rule of law is one virtue among many. Fuller doubted that a wholly wicked regime could keep his eight principles, and substantive theorists such as Bingham deny that a regime violating fundamental rights respects the rule of law at all.

Q. How did India respond to the Emergency's rule by law?
A. The 44th Amendment (1978) barred suspension of Arts. 20 and 21 under Art. 359 and replaced 'internal disturbance' with 'armed rebellion' in Art. 352. The courts built the non-arbitrariness and fair procedure doctrines, and Puttaswamy (2017) overruled the ADM Jabalpur majority.

See also: Note 40 (rule of law), Note 65 (Hart versus Fuller), Note 38 (sovereignty), Note 45 (fundamental rights), Note 46 (constitutional doctrines), Note 95 (parliamentary sovereignty versus constitutional supremacy).