RULE OF LAW

 RULE OF LAW

1.0 Introduction

2.0Objectives

3.0Main Content

3.1 Historical Background

3.2 Meaning of Rule of Law

3.3Analyses of Rule of Law

3.4 Contemporary Texture of Rule of Law

4.0Conclusion

5.0Summary

6.0Tutor-Marked Assignment

1.0 INTRODUCTION

Rule of law is a doctrine that insists on the supremacy of law over the supremacy of man. In the age of absolutist sovereigns, there was no rule of law. If there was, it was subject to the whim and caprice of the king, the ruler, the head of State. He could do no wrong. He was the embodiment of sovereignty. However, with the people’s sovereignty displacing the ruler’s sovereignty, rule of law has been institutionalized in almost every legal system.

You should note that discretion is a sore point in any discussion of the rule of law. Discretion appears to be inconsistent with the proclamation of the rule of law. But modern State can hardly survive without it. Another issue that is worthy of examination is the legitimacy of equality as espoused by the doctrine especially against the backdrop of many laws which promote unequal treatment or enforces affirmative action. Moreover, you should recall that rule of law has facilitated the growth and respect for human rights. Furthermore, the family of human rights keeps expanding as and when the need arises.

2.0 OBJECTIVES

At the end of this Unit, you will be capable of:

• Distinguishing between classical rule of law and contemporary rule of law

• Applying the doctrine of rule of law to the activities of public law institutions .

3.0 MAIN CONTENT

3.1 HISTORICAL BACKGROUND

This concept of rule of law (which is synonymously referred to as supremacy of law or constitutional supremacy) is of great antiquity dating back to Greek times. The Greek philosopher, Aristotle said that “the rule of law is preferable to the rule of any individual.” There was a time when the king could do no wrong. It was not really a factual statement to say for all it meant was that the king was above the law. But Henry De Bracton wrote in the 13th century that “the world is governed by law, human or divine” and stated further that:

“The King himself ought not to be subject to man, but subject to God and to the law, because the law makes himKing.”

Of course, Bracton was right for saying the King can do no wrong. That was then. But in contemporary times, that statement belongs to the trashcan of history. Notice how erstwhile government officials’ individual responsibility is frequently being engaged domestically and internationally for their ignoble role in violating the human rights of other persons. Note that rule of law is closely connected with such concepts as due process, natural law, democracy, fairness, etc.

3.2 MEANINGOFRULE OF LAW

The term “Rule of Law means literally means the governance of law, the state of being governed by law through the agency of man i.e. a regime of government of law as opposed to a government based on the whims and caprices of man.It is believed that the term ‘rule of law’ is Greek in origin having been associated with Greek aspirations, and particularly the renowned Greek philosophers Plato and Aristotle. It stems from the distrust which the Greeks had for human nature. They had observed that man is by nature self-centered and will stop at nothing to annihilate opponent and exterminate opposition.

Rule of law primarily means that everything must be done in accordance with the law. This implies that governmental organs and agencies must act in such a way that their conduct against the life, liberty and property of persons are legally justified or founded.

One of the most notable exponents of the concept is Albert Venn Dicey, Professor of English Law at Oxford. He recognized rule of law as comprising three meanings as follows:

(a) Firstly, it means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative or even of wide discretionary authority on the part of the government. That is, no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land.

According to him:

It means in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government … a man may be punished for a breach of law, but he can be punished for nothing else.

(b) The second aspect of the rule of law is: equality before the law, or equal subjection of all classes to the ordinary law of the land administered by ordinary courts. Simply put, that no man is above the law; officials and private citizens are under a duty to obey the law; and that there are no administrative courts to which are referred claims by the citizens against the state or its officials.

Recall that Dicey contrasted the rule of law with the droit administratif of France. In the system obtainable in France, there are specialized courts established to hear matters involving government officials. In other words, the courts that determined issues amongst private persons were different from the ones that handled matters concerning public officials. This practice was declared by Dicey to be inconsistent with the rule of law. And because such dual court system was non-existent in the United Kingdom, he had erroneously declared the latter to be lacking in administrative law. He was wrong.

He wrote in criticism of the French administrative system which he used as a basis for rejecting the emergence of an administrative arm of government in England. However, the administrative arm of government has become an indispensable or inevitable hallmark of modern system of government with more and more powers entrusted to administrators to do. This is because of the need for the government to be more responsible for the proper functioning of the socio-economic and political system, and the welfare needs of the people.

(c) Lastly, the Rule of law may be used as a formula for expressing the fact that with us the laws of the Constitution, the rules which in foreign countries naturally form part of the constitutional code, are not the source but the consequence of the rights of individuals as defined and enforced by the courts.

The doctrine of Rule of Law is one of the pillars upon which true democracy and good governance is established upon. Historically, the concept is rooted upon the theories of early philosophers, who in their own ways proffered various definitions to the doctrine. Aristotle expressed the view that the Rule of Law was preferable to that of any individual.

In the 17th century, John Locke commented on the concept of Rule of Law that:

Freedom of men under government is to have a standing rule of live  by, common to everyone of that society and made by the legislative power created in it, and not to be subject to the inconstant, unknown, arbitrary will of another man.

What John Locke meant in essence was that the Rule of Law meant that all governmental powers was to be exercised and determined by reasonably laid down law and not by the whims and caprices of anybody or authority. However, the widely accepted and authoritative definition of the concept was proffered by Albert Venn Dicey.

SELFASSESSMENT EXERCISE1

1. Discuss the ingredients of rule of law

3.3 ANALYSES OFTHE RULE OF LAW

We will now attempt some analyses of the Dicey an three-fold meaning of the rule of law.

(1) 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.

(2) The Second Meaning of the Rule of Law is that no man is above law.

Every man whatever be his rank or condition. is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.

(3) The Third meaning of the rule of law is that the general principle of the constitution are the result of judicial decisions determining the rights of private persons in particular cases brought before the court

(a) Regular laws v. Discretionary Laws

We totally agree with Dicey’s position that everything be done in accordance with the law. We equally have no objection to his concern over arbitrary powers exercisable by government officials. But the point that would easily recommend his theory to disapproval is his opposition to the grant or exercise of wide discretionary power. You will recall that discretion is one of the features of administration. Note that most of the powers vested in governmental agencies by enabling statutes by the legislature are mostly discretionary power. Where the Legislature fails to grant discretionary powers to the administration, chances are that the wheel of government will grind to a halt. Without it, the legislature would probably be a jack of all trade in the art of legislation being a master of none. In the final analysis, the citizens will suffer. It must be noted that ‘wide discretionary power’ may not be wild afterall because the authority that grants power to the administrative agency has some measure of control over the donee.

Kenneth has castigated the rule of law that abhors discretionary exercise of power as extravagant version of rule of law because their abhorrence lacks foundation in rules or principles. For example, the President of a country – who intends to provide hitherto non-existing welfare package for certain categories of citizens – may have to come up with policies, rules or principles which will break new constitutional grounds. In other words, such measures cannot be bound by much of extant rules or principles because welfarism has become a recondite medium of meeting the needs of the people. Likewise, the courts cannot be expected to operate strictly by fixed rules. In fact, it is because there are no many fixed rules that you have cases in courts. Kenneth alluded to the fact that:

(i) For an offence that carries a penalty of a maximum of 10 years, the judge has a discretion to convict and sentence from between 1-10years. The law merely fix the boundary of the discretion but none within the boundaries;

(ii) When the Supreme Court overrules itself or sweeps away pre-existing precedent, it does so by discretion;

(iii) The emergence or supremacy of equity over common law rules was a vote-of-no-confidence on the (rigid) rules and the victory of discretion;

(iv) When the equity of today hardens into (rigid) rules, then reform would become necessary.

In support of the above analyses, Wade & Phillips said that:

If it is contrary to the rule of law that discretionary authority should be given to government departments or public officers, then the rule of law is inapplicable to any modern constitution.

(b) Equality v. Inequality

You should note that equality of all before the law means that everybody is equal before the general law..

In relation to the concept of equality, a full realization is hindered by various socio-economic and legal considerations. Undoubtedly, the concept being nebulous has been given different meanings in different cases. For example, in the Former Eastern bloc, it meant the rule of law irrespective of its content or nature once it was legal and good for the State. The break-up of the East bloc had perhaps proved the fallacies of such argument, even though it can be said that it still exists to some extent in Islamic cultures. In the Western world, such law, before it accords with the rule of law, must have certain minimum content as enumerated below:

(i) Equality before the law subject to exceptions;

(ii) No punishment except for written laws;

(iii) Regularity of law;

(iv) An independent judiciary to pronounce on an act of government and individualswhen contrary to the law;

(v) The guarantee of certain basic rights and or freedom; and

(vi) Lack of arbitrariness.

 (c) Basic Rights

Dicey states that the constitution is the result of the ordinary laws of the country. In other words, the fundamental rights enjoyed by citizens derived from the ordinary laws of the land or from the decisions of the courts, not from any special guarantee by the constitution.

3.4 CONTEMPORARY TEXTUREOFRULE OF LAW

In contemporary times, the rule of law has come to mean or to be referred to as the following:

(a) Respect for the Decisions of Court

 (b) Respect for Human Rights

Respect for human rights has become the basic template for determining whether or not the government is rule of law-compliant. Human rights are the freedoms, liberties, immunities or benefits which are inherent in human beings in a civil society. They predate the individual or the society

4.0 CONCLUSION

Rule of law presupposes the doing of everything according to law, that is, that there is the absolute predominance of regular laws over privative laws or discretionary laws; equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; and the guarantee of certain basic rights.

The doctrine of rule of law is popular because there is hardly any legal system that does not contain, at least, the tenets of the doctrine. Discretionary power or the exercise thereof is one practice that the doctrine condemns because it allows individuals to apply their own personal conviction without necessarily resorting to the law. But because of the complexity of modern State and the complicated nature of its problems, there is the necessity to entrust administrative agencies with the power to act discretionarily in deserving circumstances – circumstances unforeseen.

In its modern manifestation, rule of law has given rise to, for instance, new generation of rights or human rights such as the rights to development, environment, etc.

5.0 SUMMARY

In this Unit, we examined rule of law in its traditional form and in its modern ramification. We equally attempt some analyses and, finally, looked at the contemporary scope of the concept.

6.0TUTOR-MARKED ASSIGNMENT

1. Even in contemporary times, rule of law remains what it was in classical era.

Discuss.