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rule of law

rule of law

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GENERAL
The term 'rule of law* means the principled of legality which refers to a government based on principles of and not of men. In this sense the concept of the rule of law is opposed to arbitrary powers. Rule of law is one of the basic principles of the English Constitution: This doctrine has been enshrined in the Constitution of U. S.A. and in the Constitution of India as well. The entire basis of administrative law is the concept of rule of law . Sir Edward Coke, The Chief Justic
Page |1

GENERAL
The term 'rule of law* means the principled of legality which refers to a government based on principles of and not of men. In this sense the concept of the rule of law is opposed to arbitrary powers. Rule of law is one of the basic principles of the English Constitution: This doctrine has been enshrined in the Constitution of U. S.A. and in the Constitution of India as well. The entire basis of administrative law is the concept of rule of law . Sir Edward Coke, The Chief Justic

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Categories:Types, Business/Law
Published by: Gurpreet Singh Mandair on Aug 18, 2011
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GENERAL
The term 'rule of law* means the principled of legality which refers to a governmentbased on principles of and not of men. In this sense the concept of the rule of law isopposed to arbitrary powers.Rule of law is one of the basic principles of the English Constitution: This doctrinehas been enshrined in the Constitution of U.S.A. and in the Constitution of India aswell. The entire basis of administrative law is the concept of rule of law
. Sir Edward Coke,
The Chief Justice in James I's reign is said to be the originator, of this greatprincipled. In a battle against the King, he succeeded in maintaining that the Kingmust be under the God and the law and thus vindicated the supremacy of lawagainst the executive. Dicey developed, this doctrine of Coke in his classic book,
 'The Law and the Constitution' 
published in the year 1885.
RULE OF LAW- A STATE OF AFFAIRS
The expression "rule of law" explains a state of affairs in which everything must bedone according to law. It is a state of affairs in which there are legal barriers togovernmental arbitrariness and there are available legal safeguards for theprotection of the individuals. In simple words, it is the reverse of tyranny, theantithesis of the rule of anarchy and fear.
1
 Garner 
2
holds that the expression
"Rule of Law" 
is often used simply to describe thestate of affairs in a country where, in main, the law is observed and order is kept. It isthus synonymous with
"law and order".
The expression
"Rule of Laio" 
is said to have been derived from the French maxim
 "la principe de legalite",
which broadly means
"government based on principles of law and not of men". "Ride of Law" 
in this sense, is a concept opposed to arbitrary or tyrannical power.
RULE OF LAW- GOVERNMENT UNDER THE LAW
It signifies that nobody should be deprived of his rights and liberties by - anyadministrative action; that the administration should perform its functions according
1
Ex-Attorney General Mr. Mannigham Buller, quoted in S. Rajagopalan, Administrative Law, 1970, 57.
2
Administrative Law, 1983, 9.
 
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2
 
to law and not arbitrarily; that the supremacy of the Courts be upheld, to fully securethe judicial control of Administrative Law. According to Prof. Goodhart,
3
the essence of 
"Rule of law" 
is that "public officers aregoverned by law, which limits their powers. It means government under law²thesupremacy of law over the government is distinct from government by law²the meresupremacy of law in society generally which would apply also, to totalitarian States."To put it in short, "Rule of Law" implies a state of affairs, where there is absence of arbitrary powers, where law is observed by everyone including the Government andits officers, where the action of the administration is backed by law, where every manis equal before law and assured that he will not be punished except for violation of law, where cases relating to violation of law or disputes as to rights and duties, aredecided by impartial and independent Courts or Tribunals.
4
 
WADE¶S INTERPRETATION OF RULE OF LAW
W
ade & Forsyth,
5
assign four meanings to "rule of law". Its
primary meaning
is that"everything must be done according to law". It requires that every governmentauthority must be able to justify its action as authorized by law. And, that the affectedperson may always resort to the Court of law and if the legal pedigree is not found tobe perfectly in order, the Court will invalidate the act. It is called
the principle of legality.
 Therefore,
"rule of law" 
means that "government should be conducted within aframework of recognized rules and principles which restrict discretionary power." It isthe
s
econdary meaning
of the rule of law, say the learned writers. They refer toEdward Coke's description of "rule of law" as
"the golden and straight metwand of law, asopposed to the uncertain and crooked cord of discretion.
 The
third meaning of "rule of law",
a corollary drawn from its first meaning,
W
ade &Forsyth say, is that disputes as to the legality of acts of government, are to bedecided by Judges who are independent of the Executive. The right to carry adispute with the government before the ordinary Courts, manned by Judges of the
3
Prof. A.L. Goodhart, The Rule of Law and Absolute Sovereignty, 106 UPLR, (1958), 943.
4
See also K.C. Davis,
supra,
note 11.
5
Administrative Law, 2007, 20-24.
6
Sir Edward Coke was the Chief Justice in the Court of James I. He was credited with being the originator of theconcept of 
rule of law.
 
 
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3
 
highest independence, is, according to the learned writers,
 
an important element in the Anglo-American concept of the rule of law.
 
The law should be even-handed between the Government and citizen. That, theGovernment should not enjoy unnecessary privileges or exemptions from ordinarylaw. That, "all public authorities", in principle, "should be subject to all normal legalduties and liabilities which are not inconsistent with their governmental functions". Itis the
fourth meaning 
assigned to the concept of "rule of law."
8
 Besides the above four meanings of 
"rule of law" 
which may be said to be theprinciples for the maintenance of the
"rule of law",
what is most essential is theestablishment of 
"representative democracy",
providing for beneficial social andeconomic services and conditions, personal independence, along with the principleof "minimal interference."
8
In England, Sir Edward Coke, the Chief Justice during James I reign, was creditedwith being the originator of the concept of 
'rule of law 
'. In the battle royal which hewaged against the King, Coke maintained successfully that the King must be under God and the Law and thus vindicated the supremacy of law over the pretensions of the Executive.
DICEY¶S FORMULATION OF RULE OF LAW
 A.V. Dicey developed the concept in the course of his lectures at the OxfordUniversity. He laid stress on the fact that Englishman could be punished for a breachof the law and for nothing else. Dicey developed his thesis in his classic work entitled
 ³The Law and the Constitution" 
published in the year 1885.In his formulation, Dicey attributed to the concept of 
"rule of law",
the following threemeanings:
A. Supremacy of law
Explaining the first principle, Dicey states that rule of law means the absolutesupremacy or predominance of regular law as opposed to the influence of arbitrarypower or wide discretionary power. It excludes the existence of arbitrariness of 
7
 
Id 
.,
22
.
8
 
Id 
.,
22.

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