RULE OF LAW

This article is written by Elham Mohammed Elamin of 6^th Semester of University of Khartoum, an intern under Legal Vidhiya

Abstract:

The rule of law is a fundamental principle of any just and prosperous society. It is based on the idea that everyone is subject to the law, regardless of their social status or political power. The rule of law also requires that the law be applied fairly and impartially, and that everyone have access to justice. This article examines the core principles of the rule of law, its benefits for society, and the challenges it faces. It also discusses how the rule of law can be strengthened.

The article argues that the rule of law is essential for protecting individual rights and freedoms, promoting economic development, fostering peace and stability, and enhancing trust in government. However, the rule of law is also fragile and can be easily eroded by corruption, authoritarianism, weak institutions, and a lack of accountability.

The article concludes by calling for action to strengthen the rule of law around the world. It argues that this can be done by promoting transparency and accountability, strengthening institutions, protecting human rights, and educating the public about the rule of law.

Keywords : rule of law, history of rule of law, core principles of the rule of law, benefits of the rule of law, challenges to the rule of law, rule of law in India Constitution, strengthening the rule of law, Current scenario of rule of law, individual rights and, freedoms, economic development, peace, stability.

Introduction:

The Rule of law is a term often used by politicians, lawyers, economists, and policymakers to characterize a certain type of legal-political regime. Therefore, many developing countries have prioritized their policy agendas to promote the rule of law in order to cope with the pace of globalization, which has increased in the past two decades.

The rule of law does not have a precise definition, and its meaning can vary among different nations and legal traditions. In a broader sense, it can be comprehended as a legal and political framework in which the government is constrained by the law, thereby safeguarding specific freedoms and establishing a structured and foreseeable functioning of a nation. In the most basic sense, the rule of law is a system that seeks to protect the rights of citizens from the arbitrary and abusive exercise of government power.

According to the World Justice Project, the rule of law is defined as “a system in which the following four universal principles are upheld: (1) The government and its officials and agents are accountable under the law; (2) The laws are clear, publicized, stable, and just; (3) The enactment, administration, and enforcement of laws should adhere to principles of accessibility, fairness, and efficiency.(4) The access to justice should be ensured through the involvement of competent, independent, and ethical adjudicators, attorneys, or representatives.

 The rule of law benefits society in many ways. It protects individual rights and freedoms, promotes economic development, fosters peace and stability, and enhances trust in government. However, the rule of law is also fragile and can be easily eroded by corruption, authoritarianism, weak institutions, and a lack of accountability.

This article will examine the development of the concept rule of law, core principles of the rule of law, its benefits for society, and the challenges it faces. It will also discuss how the rule of law can be strengthened.

History of rule of law:

The concept of the rule of law has a long and complex history, dating back to ancient civilizations. However, it is generally agreed that the modern concept of the rule of law emerged in England in the 17th and 18th centuries. Plato and Aristotle, ancient Greek philosophers from around 350 BC, engaged in discussions about the concept of the rule of law, an age-old principle. Plato expressed his thoughts on this matter by stating:

“Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off, but if the law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.”^[1]

Similarly, Aristotle expressed his support for the principle of the rule of law, asserting that it is imperative for the laws to govern and for those in positions of authority to act as servants to the laws.”^[2]

In the middle Ages, Islamic jurisprudence formulated rules of law before the twelfth century, so that no official could claim to be above the law, not even the caliph. However, this was not secular law but Islamic religious law in the form of sharia law.

In 1215 AD, King John signed the Magna Carta, which placed some limits on the power of the king and other government officials.

Among the first modern authors to give the principle theoretical foundation was Samuel Rutherford in Lex, Rex (1644). The title is Latin for “the law is king” and reverses traditional rex lex “the king is the law”. John Locke also discussed this in his Second Treaty of Government (1690). Later, the principle was entrenched by Montesquieu in The Spirit of the Laws (1748).

During the establishment of the United States in 1776, the concept of the supremacy of the law gained significant popularity. This sentiment was exemplified by Thomas Paine in his pamphlet Common Sense, where he asserted that in America, the law holds the highest authority. Paine drew a parallel between absolute governments, where the ruler is the law, and free nations, where the law should reign supreme without any other individual assuming such a position. Subsequently, in 1780, John Adams sought to institutionalize this principle by incorporating it into the Massachusetts Constitution, aiming to establish a system of governance based on the rule of law rather than the rule of individuals.

In 1885, the British jurist A. V. Dicey developed the phrase “rule of law”. Dicey emphasised three aspects of the rule of law: [1] no one can be punished or made to suffer except for a breach of law proved in ordinary court; [2] no one is above the law and everyone is equal before the law regardless of social, economic, or political status; and [3] The concept of the rule of law encompasses the outcomes of judicial rulings that establish and define the legal entitlements of individuals in private matters.

In 1977, the political theorist Joseph Raz identified several principles that may be associated with some [but not all] societies. Raz’s principles encompass the imperative of guiding individual behavior and mitigating the potential harm that arises from the exercise of discretionary power in an arbitrary manner. In this regard, he aligns with constitutional theorists such as A. V. Dicey, Frederich Hayek, and E. P. Thomson.

 The history of the rule of law in India can be traced back to its ancient legal systems and philosophical foundations, rooted in concepts such as “dharma” (duty and justice). References to early legal thought can be found in texts like the Manusmriti and Arthashastra.

During the British colonial period, India underwent significant legal transformations. The British East India Company introduced Western legal principles and institutions. The Charter Act of 1833 initiated the establishment of a structured legal system with separation of powers, laying the groundwork for modern legal governance.

Pre-independence legal reforms included the Indian Councils Act of 1861, which granted Indians representation in the lawmaking process. The Government of India Act 1935 introduced federalism and provincial autonomy.

Post-independence, the Indian Constitution, adopted in 1950, became the cornerstone of the rule of law not directly but indirectly. It enshrined principles such as equality before the law, fundamental rights, an independent judiciary, and a federal system of government.

 Core Principles of the Rule of Law:

The rule of law is defined by several key principles that have been established through historical records, organizational definitions, modern scholarship, and speeches. These principles include:

1. Supremacy of the Law:

The law must be superior and apply to all individuals, regardless of their social status.

2. Separation of Powers:

There should be a clear separation of powers within the government. Lawmakers create laws in general terms, while the executive branch applies them to specific situations. The judicial branch resolves disputes related to the application of the law.

3. Clarity and Predictability:

Laws must be clear and predictable so that individuals can understand the consequences of their actions. The law should be well-defined, and government discretion should be limited to prevent arbitrary enforcement.

4. Equal Application:

The law must be applied equally to all individuals in similar circumstances.

5. Justice:

Laws should be just and protect the fundamental human rights of all members of society.

6. Effective and Accessible Enforcement:

Legal processes must be robust and accessible to ensure the enforcement of just laws and the protection of human rights.

7. Independent Judiciary:

The judiciary must exercise its power independently of the executive and legislative branches. Judges should base their decisions solely on the law and the facts of individual cases.

8. Right to Participation:

Members of society should have the right to participate in the creation and improvement of laws that regulate their behavior.

There might be additional principles that arise from the issues raised by scholars and the different definitions of the rule of law. These principles include an independent legal profession, the protection of persons and property, and understanding by ordinary individuals.

How the rule of law benefits society:

The principle of the rule of law holds significant importance in maintaining international peace, political stability, and economic and social progress. It serves as a means to safeguard people’s rights and fundamental freedoms, while also facilitating their access to public services and curbing corruption and abuse of power. As Mr. Šimonović stated, at the Press Conference on the Launch of United Nations Rule of Law Indicators on July6, 2011, the rule of law mattered because it was central to the three pillars of the United Nations:  security, development, and human rights.  “The rule of law is a precondition for security; it ensures investment in countries [and] without it, human rights are nothing more than nice words.” Furthermore, it establishes a social contract between individuals and the state. The relationship between the rule of law and development is closely intertwined, and the promotion of a society based on a strengthened rule of law should be regarded as an outcome of the 2030 Agenda and  the Sustainable Development Goals (SDGs).

The rule of law plays a crucial role in sustaining peace, as emphasized by the General Assembly and Security Council in their resolutions on the review of the peacebuilding architecture.

Enhancing the rule of law evolves adhering to international legal norms, including those related to the use of force, and recognizing the primary responsibility of states to protect their populations from genocide, crimes against humanity, ethnic cleansing, and war crimes. The rule of law is a fundamental aspect of both the humanitarian and human rights agendas, and it is essential for understanding and addressing the causes of displacement and statelessness. Ultimately, it serves as the foundation of the regime for humanitarian protection.

Challenges to the Rule of law:

1. Corruption: Corruption is a major challenge to the rule of law as it undermines the principles of fairness, equality, and justice. When public officials or individuals in positions of power engage in corrupt practices such as bribery, embezzlement, or nepotism, it erodes trust in the legal system and weakens the rule of law. According to Transparency International’s Corruption Perceptions Index 2020, corruption remains a significant problem worldwide, with two-thirds of countries scoring below 50 on a scale from 0 (highly corrupt) to 100 (very clean).

2. Weak judicial independence: Judicial independence is crucial for upholding the rule of law. However, in many countries, there are challenges to maintaining an independent judiciary due to political interference or influence. When judges are subject to pressure or manipulation from political leaders or other powerful entities, it compromises their ability to make impartial decisions based on the law. This undermines public trust in the judiciary and weakens the rule of law.

3. Discrimination and inequality: The rule of law requires equal treatment under the law for all individuals regardless of their race, gender, religion, or social status. However, discrimination and inequality persist in many societies, leading to unequal access to justice and protection under the law. Discriminatory laws or practices can undermine confidence in the legal system and hinder the effective implementation of the rule of law.

4. Limited access to justice: Inadequate access to justice is a significant challenge that hampers the rule of law. Many individuals lack resources or face barriers such as high costs, complex legal procedures, or limited legal aid services that prevent them from effectively accessing justice. This creates a situation where certain groups are unable to enforce their rights or seek redress for grievances, undermining equal protection under the law.

5. Threats to freedom of expression: Freedom of expression is a fundamental pillar of democracy and an essential component for the rule of law. However, in many countries, there are challenges to this freedom, such as censorship, restrictions on media, or harassment of journalists and activists. When individuals are unable to freely express their opinions or access unbiased information, it hampers transparency and accountability, weakening the rule of law.

How Strength the rule of law:

 The rule of law can be strengthened through various methods. One approach is to strengthen weak institutions, such as the judiciary and police. When these institutions are strong and independent, they will play an essential role in upholding the rule of law. Hence, through supporting justice institutions and citizen’s rights will secure peace and stability in a region. Another way is to incorporate standards rather than strict rules into legal frameworks, as the Constitution often does. Additionally, a non-formalistic methodology of legal decision-making, which considers general constitutional principles and examines the motives of constitutional actors, can contribute to the defense of the rule of law. Furthermore, countries with higher levels of judicial strength and adherence to the rule of law are more likely to attract portfolio . This is because they provide greater protection of property rights and a more favorable risk environment for investors. Finally, international law, particularly international human rights law, plays a crucial role in strengthening the rule of law.  It protects individual freedom and well-being and establishes relationships between individuals and international organizations.

Rule of law in  Indian constitution:

The specific phrase “rule of law” is not explicitly mentioned in the Indian Constitution. However, the principles that underlie the rule of law are deeply embedded throughout the Constitution. The Constitution contains numerous provisions and articles that uphold the principles of equality before the law, non-discrimination, due process, and protection of fundamental rights. These provisions collectively establish the framework for the rule of law in India, even though the term itself may not be used verbatim.

Provisions and principles uphold the rule of law in the Indian Constitution:

1. Equality before Law: Enshrined in Article 14, this principle signifies that every person within the territory of India is to be treated equally under the law. It is a potent assurance that the state cannot discriminate when applying legal provisions.

2. Non-Discrimination: Article 15 goes a step further by prohibiting discrimination on the basis of religion, race, caste, sex, or place of birth. This ensures that the law is not merely impartial but actively combats prejudice.

3. Fair and Just Procedure: Article 21 establishes that no person can be deprived of life or personal liberty without due process of law. This speaks to the paramount importance of a just and transparent legal process.

4. Fundamental Rights: Part III of the Constitution confers fundamental rights to individuals, which they can enforce against the State. This not only empowers citizens but acts as a safeguard against potential governmental overreach.

5. Separation of Powers: The doctrine of separation of powers, implicit in the Constitution, prevents the concentration of authority in any one branch of government. This balance serves to maintain the rule of law by preventing the abuse of power.

6. Judicial Review: The Indian judiciary’s authority for judicial review is a crucial mechanism in upholding the rule of law. It empowers the judiciary to scrutinize and invalidate laws or actions that contravene the Constitution, thereby ensuring constitutional fidelity.

7. Independent Judiciary: An independent judiciary is vital in upholding the rule of law. The Constitution establishes a judiciary free from external influence, enabling judges to make impartial decisions without fear or favor.

Current scenario of rule of law:

The current scenario of rule of law is characterized by both challenges and opportunities.

On the one hand, the world is facing a number of threats to the rule of law, including:

• The rise of populism and authoritarianism,
• The erosion of checks and balances on government power,
• The increasing use of surveillance and other forms of technology to control citizens,
• The spread of misinformation and disinformation.

These threats are undermining the foundations of democracy and the rule of law, and they are having a negative impact on people’s lives.

On the other hand, there are also a number of positive developments taking place. For example, there is a growing global movement of people who are committed to defending the rule of law. These people are working to hold their governments accountable, to protect human rights, and to promote justice.

According to the World Justice Project (WJP) Rule of Law Index 2023, the global adherence to the rule of law has declined for the sixth consecutive year. The Index measures adherence to the rule of law based on 44 indicators across eight factors: Constraints on Government Powers, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice, and Criminal Justice.^[3] The 2023 Index found that declines in rule of law were most pronounced in the areas of Constraints on Government Powers, Absence of Corruption, and Fundamental Rights. These declines were driven by a number of factors, including:

• The erosion of checks and balances on executive power
• The increasing use of emergency powers by governments
• The crackdown on dissent and civil society
• The rise of corruption and impunity

The World Justice Project (WJP) has urged governments to take action to strengthen the rule of law, and also called on citizens to hold their governments accountable for upholding the rule of law.

Case studies of the rule of law in different countries:

United States – Brown v. Board of Education

Brown v. Board of Education holds significant historical importance within the United States Supreme Court. This landmark case established the unconstitutionality of racial segregation in public schools. The Court’s ruling marked a significant triumph for the civil rights movement and played a pivotal role in facilitating the desegregation of public schools nationwide.

Brown v. Board of Education serves as a compelling illustration of the practical application of the rule of law. The Supreme Court of the United States demonstrated its commitment to upholding the rights of all individuals, irrespective of their racial background. This ruling underscored the principle that the rule of law is universally applicable and that no individual is exempt from its jurisdiction.

 United Kingdom – Miller v. Secretary of State for Exiting the European Union

The Supreme Court of the United Kingdom rendered a significant verdict in the case of Miller v. Secretary of State for Exiting the European Union, affirming that the government is required to obtain parliamentary consent before invoking Article 50 of the Treaty on European Union. This ruling was a major victory for the rule of law, and it showed that the government is accountable to Parliament.

 India – Kesavananda Bharti v. State of Kerala

This case is a landmark case in Indian constitutional law that established the doctrine of the basic structure of the constitution. The case arose out of a challenge to the 24th Amendment to the Constitution, which sought to abridge the fundamental rights of citizens. The Supreme Court of India held that the basic structure doctrine could not be amended by Parliament, and that the 24th Amendment was therefore unconstitutional.

This case is a powerful example of the rule of law in action. The Supreme Court of India upheld the constitution, even in the face of opposition from the government. This shows that the judiciary is independent and impartial, and that it is willing to stand up for the rights of citizens.

  India – Vishaka v. State of Rajasthan

The Supreme Court of India, in the landmark case of Vishaka v. State of Rajasthan, established that sexual harassment occurring within the workplace constitutes a violation of the fundamental right to life and liberty as enshrined in Article 21 of the Indian Constitution. Furthermore, the Court provided comprehensive guidelines aimed at preventing and effectively addressing instances of sexual harassment in the workplace.

The Vishaka case is a reminder that the rule of law is essential for protecting the rights of individuals, even in the face of social stigma and discrimination.

Conclusion:

 In conclusion, the benefits and essential role of the rule of law in protecting individuals’ rights and freedoms, promoting economic development, fostering peace and stability, and enhancing trust in government are evident. Various cases in different countries have demonstrated that the rule of law is not just a theoretical concept but an important principle for all nations worldwide. It ensures equal treatment under the law for everyone and establishes that no one is above it. Therefore, every state has a responsibility to prevent the politicization of law and strengthen the rule of law by promoting transparency and accountability, protecting human rights, strengthening institutions, and fostering legal literacy.

References:

1. A.V. Dicey, Introduction To The Study Of Law Of The Constitution, 1885.
2. Robert Stein, What Exactly Is the Rule of Law? 57 HOUS. L. REV. 185 (2019), available at https://scholarship.law.umn.edu/faculty_articles/698.
3. “What Is the Rule of Law?” World Justice Project, worldjusticeproject.org/about-us/overview/what-rule-law. Accessed 5 Oct. 2023.
4. Steven, G., Calabresi., Gary, Lawson, The Rule of Law as a Law of Law, Social Science Research Network,(2014).
5. Marcin, Matczak, The Strength of the Attack or the Weakness of the Defence? Poland’s Rule of Law Crisis and Legal Formalism, Social Science Research Network,  10.2139/SSRN.3121611, (2018).
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8. Plato , The Laws , translated by Trevor Saunders,( London : Penguin 1970 ) .
9. Aristotle, Politics, Book 3, translated by William Ellis (1794-1872).
10. Brown v. Board, 347 U.S. 483 (1954).
11. Miller v. Secretary ,(2017) UKSC 5.
12. Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461.
13. Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
14. A W Bradley, K D Ewing & C J S Knight, Constitutional &Administrative Law,
15. United Nations. Press Conference on the Launch of United Nations Rule of Law Indicators. United Nations, New York, NY, 2011-07-06.
16. Transparency International. (2020). Corruption Perceptions Index 2020. [Online]. Available at: https://www.transparency.org/en/cpi/2020 [Accessed on 5 October 2023].
17. Manusmriti: An Ancient Indian Legal Text. Transl. G. Bühler. Oxford: Oxford University Press, 1886.
18. Arthashastra: An Ancient Indian Treatise on Statecraft and Politics. Transl. R. Shamasastry. Mysore: Mysore Printing and Publishing House, 1923.
19. Charter Act of 1833, 3 & 4 Will. 4, c. 85.
20. Indian Councils Act of 1861, 24 & 25 Vict., c. 67.
21. Government of India Act, 1935, 25 & 26 Geo. 5, c. 42.
22. The Constitution of India, 1950.
23. World Justice Project (WJP). (2023). *World Justice Project Rule of Law Index 2023*. Washington, D.C.: World Justice Project.

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^[1] Plato , The Laws , translated by Trevor Saunders,p 174 ( London : Penguin 1970 ) .

^[2] Aristotle, Politics, Book 3, translated by William Ellis (1794-1872).

^[3] World Justice Project,(2023),World Justice Project, Retrieved October 22, 2023, from https://en.wikipedia.org/wiki/World_Justice_Project.