Write A Critical Note On Dicey’s Concept of “Rule of Law”

Introduction

The term Rule of law is derived from the French phrase la principle de legality which means the principle of legality. Rule of law as proposed by Dicey is the supremacy of law as opposed to arbitrariness. Thus, the rule of law is a check on the arbitrary powers by making the law supreme. It is the law which should be supreme and not the arbitrary decisions made by an Individual. Thus, the rule of law establishes the law as supreme.

Three Principles laid by Dicey on Rule of Law

A.V. Dicey gave three principles on Rule of law by observing the UK model. These three principles are discussed below:

1. Supremacy of Law

The supremacy of law means that a man can be punished only for the distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. Thus, it is the law of the land which is supreme and not an individual. Thus, no man is above law, the law is paramount and everyone must follow the law of the land and any deviance would attract severe punishments or penalties.

2. Equality before Law

It means that everyone is equal before the law. Laws are equal for all or all the classes are equally subjected to the law of the land. Law doesn’t make any distinction based on the caste, creed, sex or class of the person. Everyone is governed by the same law and the punishments for the violation of the laws will attract the same punishment for everyone be it a rich man or a poor. Thus, all people are subject to the same law and no one is provided with any special privilege.

3. The predominance of a legal spirit

The general principles of the Constitution are the result of judicial decisions determining the rights of private persons in particular cases brought before the court. Certain rights such as the right to personal liberty, freedom from arrest etc. are the result of the decisions made by the judges in a case and were not itself guaranteed by the Constitution.

The Constitution is the consequence of the rights of the individuals and not the source of their rights. The Courts protect the rights of the individuals and ensure that the same is not violated in one way or the other. According to Dicey Rights would be more adequately secured if they are enforceable in courts rather than just written in a constitution. Thus, Dicey has emphasised on the independent and impartial judiciary.

Advantages and Disadvantages of Dicey’s Rule of Law

Dicey’s Rule of Law has both advantages and disadvantages. These have been discussed below:

Advantages

1. The Rule of Law as expounded by Dicey restricts the arbitrary power of the government by stating that the government is bound to work according to the law and it is not supreme to law. Thus, directing the government to work within the legal framework.

2. Dicey stated that the law is supreme. Thus, it is the legislature which is supreme, thus, in other words, Dicey has promoted the Parliamentary Supremacy.

3. Dicey has emphasized the Independent and impartial judiciary thus, emphasizing on the system of check and balance.

Disadvantages

1. Dicey has ignored the importance of the Codification of laws. Codification of laws is important to ensure the rights of an individual as it provides certainty, anything which is codified is certain and thus, could be followed more effectively.

2. He has misunderstood the concept of Droit administratif. According to him, the system was designed to protect the officials but in certain respects, it was specifically effective in controlling the administration than the common law system[1].

Conclusion

To sum up, According to Dicey rule of law denotes the absence of arbitrary powers and the supremacy of law. No individual is above the law and can not exercise its authority arbitrarily. Every person and authority is subjected to the law of the land. Secondly, everyone is equal before the law irrespective of their class and status and thus, the law treats everyone equally without any discrimination and without providing any privilege. Thirdly, the Courts have the power to control administrative action, thereby ensuring a system of check and balance.

[1] https://www.lawctopus.com/academike/rule-of-law-in-india-2/

Also Read – Fundamental Rights – Meaning And Concept

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About Nidhi Chhillar

Vivekananda Institute of Professional Studies

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