Jai Narain Vyas University,

Jodhpur

SUBJECT : LEGAL METHODS

PROJECT : ORIGIN OF RULE OF LAW

Submittted to : Ms. Mahima Gehlot

Submiited by : Manisha
B.B.A LL.B (I Semester)
Roll. No. 52
 INDEX

1. Introduction ………………………………….1
2. Historical background………………………...2-4
3. Notable jurists on Rule of Law………………..4-5
4. Work of DEICY……………………………….5-7
5. Conclusion……………………………………..7-8
6. Bibliography…………………………………...9
 Origin of Rule of Law
Introduction
The concept of “Rule of Law” is the building block on which
the modern democratic society is founded. For the successful
functioning of the polity it is imperative that there is
enforcement of law and of all contracts based on law. Laws
are made for the welfare of the people to maintain harmony
between the conflicting forces in society. One of the prime
objects of making laws is to maintain law and order in society
and develop a peaceful environment for the progress of the
people. The concept of Rule of Law plays an important role in
this process.
The term “Rule of Law” is derived from the French phrase
‘La Principe de Legality’ (the principle of legality) which
refers to a government based on principles of law and not of
men. In a broader sense Rule of Law means that Law is
supreme and is above every individual. No individual whether
if he is rich, poor, rulers or ruled etc are above law and they
should obey it. In a narrower sense the rule of law implies that
government authority may only be exercised in accordance
with the written laws, which were adopted through an
established procedure. The principle of Rule of Law is
intended to be a safeguard against arbitrary actions of the
government authorities.

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Historical background
The concept of rule of law is very old. Rule of law has its
existence in older civilization of ancient Greek, Romans,
Mesopotamia, India, china. Rule of law is the product of
historical development over centuries.
In older days God was regarded as supreme and king was
also considered under God. In the thirteenth century Bracton,
a judge in the reign of Henry III in a way introduced the
concept of Rule of Law without naming it as Rule of Law. He
wrote:
“The king himself ought to be subject God and the law,
because law makes him king.”
Edward Coke is said to be the originator of concept of Rule of
Law when he said that the king must be under God and law
and thus vindicated the supremacy of law over the pretensions
of the executives
Origin of Rule of Law in different region is different and
based on the customs of their region. Likewise, in India rule
of law has its origin in Upanishads. It provides that Law is the
King of Kings. It is more powerful and higher than the Kings
and there is nothing higher than law. By its powers the weak
shall prevail over the strong and justice shall triumph.

Greeck has it’s significant role in making of rule of law. Plato

promulgated the idea that government should prepare to
obey law unquestioningly. Plato examined that where law is
subject to some authority eg., where the rule of government is
above Law. The collapse of nation is not so far. But if law is
master of government then the situation is full of promise and

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men enjoy all the blessings that the gods shower on a state.
This idea of subservient was further refined by his student
Aristotle in his work, The Politics, in which he contrasted the
rule of law, reason, with the rule of man, passion, to explain
why the government should be bound by law as means to
prevent arbitrary rule and the abuse of power. Aristotle
advocated the rule of law:

It is more proper that law should govern than any one of the
citizens: upon the same principle, if it is advantageous to
place the supreme power in some particular persons, they
should be appointed to be only guardians, and the servants of
the laws.

The work of Greek influenced Romans, most notably Cicero.

who emphasised in De Legibus (circa 54-51 B.C.) that the law
must be for the good of the community as a whole, thereby
subjecting law to ideals of justice. The Roman statesman
Cicero is often cited as saying, roughly: "We are all servants
of the laws in order to be free." Cicero stated emphatically
that “there will not be one such law in Rome and another in
Athens, one now and another in the future, but all peoples at
all times will be embraced by a single and eternal
unchangeable law.” In England, the principle that the king
was bound by the law was a prominent feature of the Magna
Carta signed by King John in 1215.
In Islamic jurisprudence rule of law was formulated in the
seventh century, so that no official could claim to be above
the law, not even the caliph.
Alfred the Great, Anglo-Saxon king in the 9th century,
reformed the law of his kingdom and assembled a law code
(the Doom Book) which he grounded on biblical
commandments. He held that the same law had to be applied

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to all persons, whether rich or poor, friends or enemies.
Another early example of the phrase "rule of law" is found in
a petition to James I of England in 1610.
As a result of these developments, one of the Medieval era’s
major contributions to legal theory was to displace the idea
that the monarch was above the law.
The influence of Britain, France and the United States
contributed to spreading the principle of the rule of law to
other countries around the world.

Notable jurist on Rule of Law

1. John Locke

John Locke in the second of his Two Treatises of

Government (1689) emphasized the importance of
governance through “established standing Laws,
promulgated and known to the People”. He contrasted
this with rule by “extemporary Arbitrary Decrees.”
2. Montesquieu

Montesquieu’s work on the Rule of Law is best known in

connection with his insistence on the separation of
powers—particularly the separation of judicial power
from executive and legislative authority.

3. Hayek

Hayek’s work on the Rule of Law proceeded in two

phases: from his wartime book The Road to
Serfdom (1944) through to The Constitution of
Liberty (Hayek 1960); and the somewhat different

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 account presented in his trilogy, Law, Legislation and
Liberty (1973), an account which is more congenial to
the spirit of common law and hostile to the role of
legislation.

Work of DIECY

Credit for developing the concept of Rule of Law goes to

Professor A.V. Dicey who in his classic book “Introduction to
the Study of the Law of the Constitution” published in the
year 1885 tried developing the concept of Rule of Law.

The doctrine of Rule of Law is ascribed to Diecy whose

writing in 1885 on the British constitution included following
three distinct though kindred ideas in Rule of Law.

I. Absence if arbitrary power : no man is above law. No

man ia punishable except for breach of law established in
an ordinary legal manner before ordinary courts. The
government cannot punish any one merely by it’s own
fiat. Persons in authority in Britain donot enjoy wide,
arbitrary or discretionary powers. Diecy asserted that
wherever there is discretion there is room for arbitraries.

II. Equality before law : every man, whatever his rank or

condition, is subject to the ordinary law and jurisdiction
of the ordinary courts. No man is above law.

III. Individual liberties : the general principles of the British

constitution and especially the liberties of the individual,
are judge made i.e, these are the result of judicial

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 decisions determining the rights of private persons in
particular cases brought before the courts from time to
time.

DIECY asserted that the above mentioned features existed in

the British constitution . The British constitution is judge
made and the rights of the individuals are part of the
constitution because these are secured by the courts. The
British constitutional law is not the source, but the
consequence of the rights of the individual as defined by the
courts.

DEICY was thinking of the common law freedom such as

personal liberty, freedom of speech, public meeting etc. what
Deicy was saying was that certain constitution proclaim rights
but do not provide adequate means to enforce those rights. In
the British constitution, on the other hand, there is inseparable
connection between the means of enforcing a right and the
right to be enforced.

Diecy thesis has been criticized by many from various angles

but, the basic tenet expressed by him is that power is derived
from, and is to be exercised according to law. In substance,
Diecy’s emphasis on the whole in his enunciation of Rule of
Law is on the absence of arbitrary power and discretionary
power, equality before law, and legal protection to certain
basic human rights, and these ideas remain relevant and
significant in every democratic country even today.

The Indian Constitution by and large seeks to promote Rule of

Law through many of it’s provisions. For example Parliament
and state legislatures are democratically elected on the basis
of adult suffrage. The constitution makes adequate provisions

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guaranteeing independence of the judiciary. Judicial review
has been guaranteed through several constitutional provisions.
The Supreme Court has characterized judicial review as a
“basic feature of the constitution”. Article 14 of the
constitution guarantees right to equality before law. This
constitutional provision has now assumed great significance
as it is used to control administrative powers least they should
become arbitrary.

Conclusion

Today Diecy’s theory of Rule of Law cannot be accepted in

its totality. The modern concept of the rule of law is fairly
wide and therefore sets up an ideal for any government to
achieve. This concept was developed by the International
Commission of Jurists. Known as Delhi Declaration, 1959
which was latter on confirmed at logos in 1961. According to
this formulation-

“The rule of law implies that the functions of the government

in a free society should be so exercised as to create conditions
in which the dignity of man as an individual is upheld. This
dignity requires not only the recognition of certain civil or
political rights but also creation of certain political, social,
economical, educational and cultural conditions which are
essential to the full development of his personality”.

According to Davis, there are seven principal meanings of the

term “Rule of law:
(1) law and order;

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 (2) fixed rules;
(3) elimination of discretion;
(4) due process of law or fairness;
(5) natural law or observance of the principles of natural
justice;
(6) preference for judges and ordinary courts of law to
executive authorities and administrative tribunals;
(7) Judicial review of administrative actions. So finally it
may correctly be said that rule of law does not mean
and cannot mean any government under any law. It
means the rule by a democratic law-a law which is
passed in a democratically elected parliament after
adequate debate and discussion.
Likewise, Sir Ivor Jennings says –
“In proper sense rule of law implies a democratic system, a
constitutional government where criticism of the government
is not only permissible but also a positive merit and where
parties based on competing politics or interests are not only
allowed but encouraged. Where this exist the other
consequences of rule of law must follow”.

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 Bibliography

Books referred
MP Jain The Constitutional Law sixth edition 2011
Tom Binghan The Rule of Law
Websites referred
https://www.lawteacher.net/free-law-essays/administrative-law/origin-and-
concept-of-rule-of-law-administrative-law-essay.php#ftn4

https://plato.stanford.edu/entries/rule-of-law/#HistRuleLaw

Research paper referred

Article :The Rule of Law: Its Origins and Meanings (A Short
Guide for Practitioners) march 2012
Author : Anthony Valcke (University of Kent)