The Rule of Law
Chapter Five
Syllabus topic 1, "Constitutionalism, Classification of Constitutions"
Pages 20 to 24 of 676
In one line
The rule of law means that everyone, including the government, is subject to law, and that the law is known, general and applied by independent courts.
In the wording a student can write in an exam: the rule of law is the principle that the exercise of public power must be authorised by law and controlled by law, that the law must be certain, general, prospective and public, and that its application must be entrusted to independent courts before which the government and the citizen stand equally.
Why the idea exists
The alternative is the rule of men: a ruler whose word is the law, who may punish without a rule broken, and against whom no court will hear a complaint.
The English rejected that in stages, and Entick v. Carrington is the moment it became a working rule of law rather than a slogan. In 1765 the Secretary of State's messengers broke into John Entick's house on a general warrant and seized his papers. Entick sued in trespass, and Lord Camden CJ held that the warrant was illegal because no such power was to be found in the law books "from the first Year-Book to the present time", and that a power to issue such a warrant was contrary to the genius of the law of England. That such warrants had been issued by Secretaries of State ever since the Revolution did not make them lawful.
The reasoning is the whole doctrine in one move. The question was not whether the search was reasonable or necessary. The question was where the power came from, and the answer was nowhere.
Dicey's three meanings
A. V. Dicey, writing in 1885, gave the account that examiners still ask for. He said the rule of law in England meant three things.
First, the absolute supremacy of regular law as against arbitrary power. A person may be punished for a breach of law established in the ordinary courts, and for nothing else. Wide discretionary authority in the government is the opposite of the rule of law.
Second, equality before the law. Every person, whatever his rank, is subject to the ordinary law and to the jurisdiction of the ordinary courts. Dicey contrasted this with the French droit administratif, in which officials were answerable in separate administrative courts, and he thought that a defect. Most later writers think he misunderstood the French system.
Third, that the constitution is the result of the ordinary law. In England the general principles of the constitution, such as the right to personal liberty, are the result of judicial decisions in particular cases, rather than the source from which individual rights are inferred. Rights came first and the constitution is their consequence.
The Rule of Law
The third meaning is the one that dates. It describes a constitution built by courts, which is what the English had and what nobody else on this syllabus has.
The two modern accounts
The formal, or thin, account. The rule of law is about the form of legal rules, not their content. Laws should be prospective, published, clear, stable, general, not contradictory, capable of being obeyed, and applied as announced. A wicked law that satisfies all of that satisfies the rule of law, and must be attacked on other grounds. The virtue of the formal account is that it is testable.
The substantive, or thick, account. The rule of law includes some minimum content: that the law must respect human dignity, that there must be access to courts, that certain rights are not to be invaded whatever the form. The virtue is that it matches how the phrase is used in political argument; the difficulty is that it collapses the rule of law into a general theory of justice.
Indian law leans substantive. Article 14 has been read since E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, as forbidding arbitrariness as such, which is a content-based limit and not a formal one.
Where the phrase appears in a text
Students often assume the rule of law is unwritten everywhere. Three of MU's seven put it in the instrument.
United Kingdom. Section 1 of the Constitutional Reform Act 2005 provides that the Act does not adversely affect "the existing constitutional principle of the rule of law", or the Lord Chancellor's existing constitutional role in relation to that principle. Parliament acknowledged the principle without defining it.
Canada. The preamble to the Canadian Charter of Rights and Freedoms recites that Canada is founded upon principles that recognise the supremacy of God and the rule of law.
Switzerland. Article 5 of the Federal Constitution is headed by the Confederation's own translation as the rule of law, and provides that all activities of the state are based on and limited by law, that state action must be in the public interest and proportionate, and that public bodies and private persons must act in good faith.
India does not use the phrase in the text, and has the strongest machinery of the four: article 14, article 21, article 32, and article 265, that no tax shall be levied or collected except by authority of law.
A worked example
A district collector, without any statutory power, orders that no procession may pass along a particular road for a month, and the police enforce the order.
In England after Entick the order is a trespass on the highway rights of every person affected, and no defence exists, because no statute or common law rule authorised it.
The Rule of Law
In India the collector's act fails at three points. It is not authorised by law, so article 21 is breached because the deprivation of liberty is not by procedure established by law. It restricts article 19(1)(b), and article 19(3) permits only restrictions imposed by law. And under article 14 as read in E.P. Royappa an act with no rule behind it is arbitrary.
In the United Kingdom today there is the additional route of M v. Home Office, [1994] 1 AC 377: if the collector's counterpart disobeyed a court order, a finding of contempt could be made against him in his official capacity.
The cases
Facts. Entick v. Carrington, (1765) 19 St Tr 1029, arose when the King's messengers, acting on a warrant of the Secretary of State, broke into John Entick's house and carried away his papers on suspicion of seditious libel. Entick sued in trespass.
Held, by Lord Camden CJ. The warrant was illegal and the trespass actionable. No such power was to be found in the law books from the first Year-Book to the present time, and a power to issue such a warrant was contrary to the genius of the law of England. The practice of Secretaries of State since the Revolution did not make it lawful.
Why it matters here. It is the concrete form of the rule of law: the executive may do nothing without legal authority, and the burden is on the executive to show where the authority is.
Facts. M v. Home Office, [1994] 1 AC 377, concerned a Zairean asylum seeker removed from the United Kingdom in breach of an undertaking to the court and of an order made by a judge at night. Contempt proceedings were brought against the Home Secretary.
Held, by the House of Lords. A finding of contempt could be made against a minister of the Crown. The order was amended so that the finding lay against the Secretary of State for Home Affairs in his official capacity rather than personally, and the appeal and cross-appeal were dismissed.
Why it matters here. It answers Dicey's second meaning in the modern form: the government is subject to the ordinary jurisdiction of the ordinary courts, including their coercive jurisdiction.
Distinctions
| Rule of law | Rule by law | |
|---|---|---|
| Who is bound | Everyone, including the government | Only the governed |
| Function of law | To limit power | To be an instrument of power |
| Courts | Independent, and may hold the State wrong | Applied as directed |
| Example | Entick v. Carrington | A decree valid because the ruler made it |
| Formal account | Substantive account | |
|---|---|---|
| Concerned with | The form of rules: clear, prospective, general, applied as announced | The content of rules as well |
| A clear, published, unjust law | Satisfies it | Breaches it |
| Strength | Testable, avoids collapsing into justice | Matches ordinary usage |
| Indian position | Not the whole of it: article 14 forbids arbitrariness as such | Closer to this |
The Rule of Law
What beginners get wrong
"The rule of law means all laws must be obeyed." That is closer to rule by law. The doctrine is about who is bound and how law is made and applied, not about the duty of obedience.
"Dicey's second meaning bars any special rules for officials." Dicey thought so, and Indian and English law do not. Article 361 gives the President and Governors immunity from court process; the Public Servants (Inquiries) Act and service rules apply only to officials. What the doctrine forbids is exempting officials from legal control, not having rules addressed to them.
"Discretion is contrary to the rule of law." Unstructured discretion is. Modern administrative law accepts discretion and controls it, by requiring it to be exercised for a proper purpose, on relevant considerations, and reasonably.
Limits and criticism
It says nothing about who makes the law. A perfectly law-governed autocracy is possible in theory, which is why the rule of law is a necessary and not a sufficient condition of a decent constitution.
Dicey's account was inaccurate even about England. He denied that England had administrative law at all, and it plainly does.
Emergencies test it hardest. Liversidge v. Anderson, [1942] AC 206, and Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, are the two standing examples of courts abandoning the doctrine when it mattered most; both are now repudiated.
Quick revision
- Rule of law: public power must be authorised and controlled by law; law must be certain, general, prospective and public; independent courts apply it to government and citizen alike.
- Dicey's three meanings: supremacy of regular law over arbitrary power; equality before the ordinary law and courts; the constitution as the result of ordinary law.
- Formal account: form of rules. Substantive account: minimum content. India leans substantive through article 14 and E.P. Royappa.
- In the text: section 1 of the Constitutional Reform Act 2005; the Charter preamble in Canada; article 5 of the Swiss Constitution. Not in the Indian text.
- Entick v. Carrington, (1765) 19 St Tr 1029: no power to be found in the law books, so the warrant was illegal.
- M v. Home Office, [1994] 1 AC 377: contempt lies against a minister in his official capacity.
- Article 265: no tax without authority of law.
Test yourself
1. State Dicey's three meanings and say which has worn worst. Supremacy of regular law over arbitrary power; equality before the ordinary law and the ordinary courts; and the constitution as the result of ordinary law rather than its source. The third has worn worst, because it describes a judge-made constitution and none of MU's other six systems has one; the second has worn badly too, because Dicey's objection to separate administrative jurisdiction is not now accepted.
The Rule of Law
2. Why is Entick v. Carrington still cited in a comparative paper? Because it states the burden the right way round. The question is not whether the executive act was sensible but where the power came from, and the answer must be a legal source. Every system on this syllabus accepts that proposition; they differ only in what happens when it is broken.
3. Contrast the formal and substantive accounts, and place Indian law. The formal account judges rules by their form: clear, prospective, general, applied as announced. The substantive account requires minimum content as well. Indian law is substantive, because article 14 has been read since E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, to strike at arbitrariness itself, which is a judgment about content and not about form.
4. Where does the phrase "rule of law" actually appear in the constitutional texts on this syllabus? In section 1 of the United Kingdom's Constitutional Reform Act 2005, in the preamble to the Canadian Charter of Rights and Freedoms, and in article 5 of the Swiss Federal Constitution, which requires state action to be based on and limited by law, in the public interest and proportionate. It does not appear in the Indian, American, German or Irish texts.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.