Rule of law

Origin and history of rule of law

The origin of the Rule of Law can be traced back to the 13th century A.D. It was during
the 13th century that Henry de Bracton, a judge in the reign of Henry III stated during the
hearing of one of the cases that – ‘The King is not supreme. He is subjected to the
almighty and the law. The king is subjected to the law because it is due to the law only
that he is made a king.’ 

Although Judge Henry did not explicitly use the phrase ‘Rule of Law’, he highlighted the
essence of the principle of rule of law. 

Rule of law in England

With the signing up of the Magna Carta in 1215 by King John, the rule of law began in
England. When the Magna Carta of 1215 was signed, the monarchical form of
government prevailing in then England conveyed its approval to be under the law,
thereby making law – the ultimate supreme.

However, in England, the principle of Rule of Law took a new twist when the
disagreement arose between the Parliament and the Monarchical system in the quest for
more powers. Both the Parliament and the Monarch were struggling to attain the status of
ultimate authority. In the end, the Parliament turned out to be the winner. The parliament
was declared supreme over the monarchy. As a result, several laws were made by the
parliament which governed as well as limited the power of the monarchy.

Definition
Rule of law implies that everyone, including the authority and its representatives, as well
as individuals, should follow the law. In case of any violation of such law, the violator
irrespective of the status, caste, creed, or other attributes shall be punished following the
provisions of the concerned constitution.
One of the renowned personalities in administrative law, Professor William Wade
defined the Rule of Law as – 

“The rule of law requires that the government should be subject to the law rather than
the law subject to the government.”
According to Black’s law dictionary, 

“Rule of Law is the supremacy of law in which decisions are made based on well-
established principles or laws, with no discretionary involvement in the application of
such principles or laws.

The Doctrine of Rule of Law has also been referred to as ‘supremacy of law’. This
signifies that where the rule of law exists, no one can be considered to be above the law;
even the powers and conduct of the executive organ of the government must be governed
by the law. Even the one making the law i.e., Legislature is also not above the law. All
the legislators are expected to work in accordance with the laws mentioned in the
constitution.

In a democratic institution, the rule of law places an obligation on all individuals to abide
by the law, and the legislation itself must be just. It should not be arbitrary or tyrannical.
It is regarded as the part of constitution of Pakistan.

Dicey’s Concept of Rule of Law

It would be appropriate to discuss the views of Dicey, as he is known to be the main

exponent of the concept of rule of law. Dicey, in his book Law and Constitution in the
year 1885 further developed this concept given by Coke. According to Dicey’s theory,
rule of law has three pillars based on the concept that “a government should be based on
principles of law and not of men”, these are-

 Supremacy of Law;
 Equality before the Law; and
 Predominance of Legal spirit.

1. Supremacy of Law

The First meaning of the Rule of Law is that 'no man is punishable or can
lawfully be made to suffer in body or goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary courts of the land. The
person cannot be punished by the government merely by its own fiat but only according
to the established law.

2. Equality before Law

The second important pillar of Dicey’s concept of Rule of Law is Equality before Law. In
other words, every man irrespective of his rank or position is subject to the ordinary law
and jurisdiction of the ordinary court and not to any special court. According to him
special law and special courts is a threat to the principles of equality.

3. Predominance of Legal spirit

That the general principles of the constitution (as, for example, the right to personal
liberty, or the right of public meeting) are with us the result of judicial decisions
determining the rights of private persons in particular cases brought before the Courts;
whereas, under many foreign constitutions, the security (such as it is) given to the rights
of individuals results, or appears to result, from the general principles of the constitution.

Separation of powers

Separation of powers, also known as Trias Politica, is the idea that the government must
be based on “three separate branches” where power is wielded, so they can keep a check
on each other. This idea was proposed by Charles De Montesquieu, French philosopher
(1689 – 1755). In essence, there are three organs in almost every state, entrusted with
specific functions under the Constitution; legislative, executive, and judiciary. The
different tasks are assigned to them to run the country. The distribution of powers among
these three organs is not absolute. Under the doctrine of Separation of Powers, a system
of check and balance establishes to avoid tyranny and abuse of power. This doctrine is
adopted in the light of the fact that a single institution holding all power may act
arbitrarily as it would not be accountable to anyone for its actions, which may affect the
state negatively. This doctrine is a key feature of democracy.

The doctrine of separation of powers divides the powers of State among three organs in
such a way that one organ keeps a check on and is accountable to, the other organ. For
example, the legislative organ is responsible to make laws and pass financial bills but
they require the authorization of the President who is a part of the executive organ. The
executive organ is responsible for daily administration work but they are responsible to
the legislature for their actions. The judicial organ is responsible to interpret the laws and
settle disputes but appointments to the judiciary and their removal are governed by
legislative and executive organs. Judicial organs also keep a check on legislations and
administrative order made. It may declare them null and void if they are inconsistent with
fundamental rights or the constitution of the state. For this judiciary has to be impartial
and non-political. Thus, each organ is accountable to and monitored by the other.
The design of separation of powers differs from country to country. In some countries,
there’s a complete separation not only with reference to functions but also between each
person of the separate branches. In such a system, a person cannot serve in more than one
branch. Members of the cabinet representing the executive organ can be part of the
National Assembly which represents a part of parliament. It is impossible to achieve
absolute separation of power, some overlapping will occur especially between the
legislature and executive branches. However, the separation between the judiciary and
the other two branches is very strict, as the judiciary must be independent and free from
political influence.

Absolute and not absolute separation of powers

Montesquieu’s theory of separation of powers

Montesquieu, a French scientist, originally proposed the doctrine of separation of powers

in his book “Espirit des Louis” published in 1747. (The spirit of the laws). Montesquieu
discovered that when power is concentrated in the hands of a single person or a group of
people, a despotic government emerges. To avoid this predicament and to limit the
government’s arbitrary nature, he argued that the three organs of the state, the Executive,
Legislative, and Judiciary, should have a clear distribution of power.

Significance
As it is a very well-known fact that whenever a large power is given in the hand of any
administering authority there are higher chances of maladministration, corruption and
misuse of power. This doctrine helps prevent the abuse of power.  This doctrine protects
the individual from the arbitrary rule. The government is the violator and also protects
individual liberty.

Summarily, the importance can be encapsulated in the following points:

 Ending the autocracy, it protects the liberty of the individual.

 It not only safeguards the liberty of the individual but also maintains the
efficiency of the administration.
 Focus on the requirement of independence of the judiciary
 Prevent the legislature from enacting an arbitrary rule.

Legislature, judiciary and executive.

Administrative law

Administrative law is the law that governs the administrative actions. As per Ivor
Jennings- the Administrative law is the law relating to administration. It determines the
organization, powers and duties of administrative authorities. It includes law relating to
the rule-making power of the administrative bodies, the quasi-judicial function of
administrative agencies, legal liabilities of public authorities and power of the ordinary
courts to supervise administrative authorities. It governs the executive and ensures that
the executive treats the public fairly.

 Administrative law is a branch of public law. It deals with the relationship of

individuals with the government. It determines the organization and power
structure of administrative and quasi-judicial authorities to enforce the law.
 However, administrative law is not a codified law. It is a judge-made law which
evolved over time.
 The Mauryans and the Guptas of ancient India had a centralised administrative
system. It was with the coming of the British that Administrative law in India went
through a few changes. Legislations regulating administrative actions were passed
in British India.

Reasons for growth of Administrative law.

The concept of a welfare state

As the States changed their nature from laissez-faire to that of a welfare state,
government activities increased and thus the need to regulate the same. Thus, this branch
of law developed.

The inadequacy of legislature

The legislature has no time to legislate upon the day-to-day ever-changing needs of the
society. Even if it does, the lengthy and time-taking legislating procedure would render
the rule so legislated of no use as the needs would have changed by the time the rule is
implemented.

Thus, the executive is given the power to legislate and use its discretionary powers.
Consequently, when powers are given there arises a need to regulate the same.
The inefficiency of Judiciary
The judicial procedure of adjudicating matters is very slow, costly complex and formal.
Furthermore, there are so many cases already lined up that speedy disposal of suites is not
possible. Hence, the need for tribunals arose.

Scope for the experiment

As administrative law is not a codified law there is a scope of modifying it as per the
requirement of the State machinery. Hence, it is more flexible. The rigid legislating
procedures need not be followed again and again.

Difference between Administrative law and Constitutional law.

There are significant differences between Administrative law and Constitutional law.

1. A Constitution is the supreme law of the land. No law is above the constitution
and hence must satisfy its provisions and not be in its violation. Administrative
law hence is subordinate to constitutional law. In other words, while Constitution
is the genus, administrative law is a species.
2. Constitution deals with the structure of the State and its various organs.
Administrative law, on the other hand, deals only with the administration.
3. While Constitution touches all branches of law and deals with general principles
relating to organization and powers of the various organs of the State;
administrative law deals only with the powers and functions of the administrative
authorities.

Administrative action 
 An administrative action is a legal action which is concerned with the conduct of a
public administrative body. This kind of action can compel an authority to take a
certain action.
 Administrative actions may include administrative directions, instructions, and
administrative functions.
Administrative action can be classified into following broad categories.
1. Rule-making action or quasi-legislative action.
2. Decision-making action or quasi-judicial action.
3. Rule application action or administrative action.
4. Finality of administrative action.