The Rule of Law

Every child who has played street cricket knows the boy who owns the bat. When he is given out, he changes the rules, and if anyone objects he takes his bat home. 'My bat, my rules' is the opposite of the rule of law. The rule of law is the principle that the rules bind the powerful as much as everyone else, that they are known in advance, and that disputes about them are settled by an independent umpire, not by the person who owns the bat. In a State, the bat is public power. The rule of law insists that even the government plays by rules it cannot change in the middle of the game.

Figure: Rule of law against rule by law: in the first, the law binds the ruler and every official as well as the people; in the second, the ruler stands above the law and uses it as a tool to govern others

1. Meaning of the Rule of Law

The rule of law has three core ideas. First, the supremacy of law: no person or authority is above the law, and the government itself is bound by it. Second, legality: public power may be exercised only under the authority of a law that is known, general and prospective, not by arbitrary will. Third, access to independent courts: there must be judges, independent of the executive, who can hold officials to the law. The phrase is easy to state and hard to define precisely, which is why jurists disagree about whether it also requires that laws be just or respect fundamental rights (section 5).

2. Historical Roots

Aristotle, in the Politics, argued that it is better for the law to rule than for any one citizen, and that even the guardians of the State should be servants of the law. Magna Carta (1215) promised that no free man would be imprisoned or dispossessed except by the lawful judgment of his peers or by the law of the land. The thirteenth-century English jurist Bracton wrote that 'the king ought not to be under man but under God and the law'.

In the seventeenth century Sir Edward Coke turned these ideas against the Stuart kings. In Prohibitions del Roy (1607) he told James I that the King could not decide cases in person, because the law is an artificial reason that requires long study, and he quoted Bracton back at the King. In the Case of Proclamations (1610) the judges held that the King cannot create new offences by proclamation. James Harrington, in The Commonwealth of Oceana (1656), described good government as 'an empire of laws and not of men', and Locke (1690) warned that wherever law ends, tyranny begins. Dicey did not invent the idea; he gave it its classic modern statement and made the phrase 'rule of law' familiar to every lawyer.

3. Dicey's Three Meanings

In his Introduction to the Study of the Law of the Constitution (1885), A.V. Dicey said that the rule of law, a characteristic of the English constitution, has three meanings.

Dicey contrasted England with France, where disputes between citizens and officials went to separate administrative courts under droit administratif. He saw this as a privilege for officials, inconsistent with equality. In a later article, 'The Development of Administrative Law in England' (1915), he partly conceded that administrative law had grown in England too, as Parliament conferred wide powers on government departments, though he remained uneasy about it.

4. Criticism of Dicey

The leading critic was Sir Ivor Jennings, in The Law and the Constitution (1933). His points, now standard, are these.

5. Formal and Substantive Conceptions

Modern writers divide into two camps. Formal (or thin) conceptions say that the rule of law concerns the form of law: laws should be general, public, prospective, clear, stable and applied by independent courts. Substantive (or thick) conceptions add that law must also protect fundamental rights and meet standards of justice.

Formal conceptions

F.A. Hayek, in The Road to Serfdom (1944), defined the rule of law as meaning that government in all its actions is bound by rules fixed and announced beforehand, so that individuals can foresee how coercive power will be used and plan their affairs. He used this to attack central economic planning, which requires officials to make discretionary choices case by case.

Lon Fuller, in The Morality of Law (1964), set out eight principles of the inner morality of law: generality, promulgation, non-retroactivity, clarity, non-contradiction, possibility of compliance, constancy through time, and congruence between official action and declared rule. His parable of King Rex, who fails in each of the eight ways, shows that a total failure in any one does not produce bad law but no law at all. Fuller argued that these procedural virtues have moral value in themselves (see Note 65).

Joseph Raz, in 'The Rule of Law and its Virtue' (1977), gave the clearest formal account. The basic idea is that law must be capable of guiding the behaviour of its subjects; from this he derived principles such as prospective, open and clear laws, relatively stable laws, an independent judiciary, observance of natural justice, review powers, accessible courts, and limits on the discretion of crime-preventing agencies. Raz insisted that the rule of law is only one virtue a legal system may have, not to be confused with democracy, equality or human rights. He compared it to the sharpness of a knife: a virtue that makes law an efficient instrument, whether it is used for good or ill.

Substantive conceptions

The International Commission of Jurists, at its congress in New Delhi, adopted the Delhi Declaration (1959). It described the rule of law as a dynamic concept, to be used not only to safeguard civil and political rights but also to establish the social, economic, educational and cultural conditions under which people's legitimate aspirations and dignity can be realised. Lord Bingham, in The Rule of Law (2010), stated the core principle that all persons and authorities within the State, public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect generally in the future and publicly administered in the courts. He then set out eight principles: the law must be accessible, clear and predictable; legal questions should be resolved by law, not discretion; laws should apply equally to all; officials must use their powers in good faith, fairly and for proper purposes; the law must adequately protect fundamental human rights; there must be means of resolving civil disputes without prohibitive cost or inordinate delay; adjudicative procedures must be fair; and the State must comply with its obligations in international law.

6. Rule of Law and Rule by Law

Under the rule of law, law is the master and the ruler its servant: power is bounded and the citizen can hold the State to the law. Under rule by law, law is only an instrument in the ruler's hands, used to govern others while the ruler himself stands above it. Both have statutes, courts and officials; the difference is who is subject to the law. An authoritarian regime may govern entirely through decrees and courts and still be the opposite of the rule of law, because the ruler can change or ignore the rules at will. Dicey's supremacy of law, and the Indian Constitution, stand for the first.

7. Institutions that Secure the Rule of Law

The rule of law needs institutions. Separation of powers prevents any one organ from making, executing and judging the law. An independent judiciary, protected in tenure and salary, is the umpire. Judicial review lets courts strike down legislation and executive action that exceed legal power. The principles of natural justice (no one should be a judge in his own cause; hear the other side) govern how decisions are made. A free press and access to legal aid make these safeguards real for ordinary people.

8. The Rule of Law in the Indian Constitution

Art. 14 provides that the State shall not deny to any person equality before the law or the equal protection of the laws. The first phrase comes from the British tradition and Dicey's second principle; it is a negative idea that no one is above the law. The second comes from the Fourteenth Amendment (1868) of the United States Constitution; it is a positive idea that like persons shall be treated alike, which allows reasonable classification. There are recognised exceptions: under Art. 361 the President and Governors are not answerable to any court for the exercise of their powers, and no criminal proceedings may be instituted against them during their term; foreign diplomats enjoy immunity; and legislators enjoy privileges under Arts. 105 and 194.

The Emergency of 1975 to 1977 showed how fragile the rule of law can be. After ADM Jabalpur (below), the 44th Amendment (1978) amended Art. 359 so that the enforcement of Arts. 20 and 21 can never be suspended during an Emergency. Beyond the text, the Supreme Court has made the rule of law a basic feature, turned Art. 14 into a guarantee against arbitrariness, and read due process into Art. 21.

9. Evaluation

Dicey's account, for all its faults, fixed the rule of law as a central ideal of constitutional government. Jennings showed that discretion and administrative law are unavoidable; the modern task is to confine and review discretion, not to banish it. The debate between formal and substantive conceptions continues: the formal view keeps the idea precise, while the substantive view explains why people value it. Indian law has chosen a rich conception. It demands legal authority for executive action (Bharat Singh), non-arbitrariness (Royappa, Shayara Bano), fair procedure (Maneka Gandhi), and judicial review as an unamendable feature (L. Chandra Kumar). ADM Jabalpur and its reversal in Puttaswamy are the reminder that the rule of law is only as strong as the judges and citizens who defend it.

10. Frequently Asked Questions

Q. Did Dicey invent the rule of law?
A. No. The idea runs back through Aristotle, Bracton, Magna Carta, Coke and Harrington. Dicey popularised the phrase and gave the classic three-part statement in Introduction to the Study of the Law of the Constitution (1885).

Q. What is the difference between the formal and substantive rule of law?
A. The formal conception (Hayek, Fuller, Raz) requires only that law be general, public, clear, prospective and applied by independent courts. The substantive conception (the Delhi Declaration, Bingham) also requires that law protect fundamental rights.

Q. Can Arts. 20 and 21 be suspended during an Emergency?
A. No. After the 44th Amendment (1978), Art. 359 does not permit suspension of the enforcement of Arts. 20 and 21. This was a direct response to ADM Jabalpur (1976).

Q. Is the rule of law part of the basic structure?
A. Yes. It was recognised as a basic feature in Indira Gandhi v Raj Narain (1975) and applied in P. Sambamurthy (1987); judicial review, its main instrument, was held basic in L. Chandra Kumar (1997).

See also: Note 38 (sovereignty), Note 39 (State and law), Note 45 (fundamental rights), Note 46 (constitutional doctrines), Note 48 (liberty and equality), Note 65 (Hart versus Fuller).