By- Harshpreet Kaur
Society is a complex framework of humans, their relations and their institutions. The society in which we live in requires a stable ruling body which guides all the entities staying here. The absence of powerful ruling ideologies leads the society towards violence. Emile Durkheim, a French sociologist, stated that “Law is an indicator of the mode of integration of a society.”
Eugen Ehrlich, wrote in his book of Fundamental Principles of the Sociology of Law that, “The centre of gravity of legal development therefore from time immemorial has not lain in the activity of the state, but in society itself.” Likewise, many philosophers and intellectuals connected sociology with law. They highlighted the importance of proper legal system for smooth functioning of society through their works. Law of the country is a set of rules of conduct imposed by the State upon its members and enforced by the courts.
Sir John Salmond defines law as the body of principles recognized and applied by the State in the administration of justice. There were various ruling powers which have been changed from time to time. Previously, people believed that all the rules and regulations have to be made in accordance with the supreme divine power. Saints and sages were considered as messengers of God who laid down the laws of that time. Eventually, the transition from superstitious society to rational society took place. With the span of time, people started to think logically and scientifically. They began to apply the theory of cause and effect in their day-to-day lives. This was the time when people realized the need of having a supreme law of the country which is the “Grundnorm” of the land. All other laws have to be made in its context only. There should be uniform provisions of law which are to be applied to everyone irrespective of their power, religion, gender, caste, class, etc. This concept that was popularized in the late 19th century, was named as the “RULE OF LAW.
In this article, the author has thoroughly defined the rule of law. The whole story from its emergence to its present-day relevance has been elaborated below. This write-up has chiefly focused on the sociological significance of the rule of law.
WHAT IS RULE OF LAW?
The phrase “Rule of Law” was derived from the French phrase ‘la principe de legalite’ (the principle of legality) which refers to a government based on principles of law and not of wise men. Rule of Law is one of the basic principles of the English Constitution and the doctrine is accepted in the Constitution of U.S.A and India as well. The entire basis of the Administrative Law is the rule of law.
The Rule of Law is the product of centuries of struggle of the people for the recognition of their inherent rights. This concept is of old origin and is an ancient ideal. It was discussed by ancient Greek philosophers such as Plato and Aristotle around 350 B.C. Plato wrote, “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 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 the State.” Similarly, Aristotle also endorsed the concept of Rule of Law by writing that “Law should be the final sovereign.”
In England, people gave great importance to the fact that everyone should be equal in the eyes of law. Even the Queen cannot violate the law, but everyone is bound by the law. In England, the people secured this right after long struggle against the monarchy. First of all, they obtained a charter of laws from King John. This charter is called ‘Magna Carta.’ Later, people obligated the King to be punished under this charter, when he violated the rights of the people.
The Rule of Law was first originated by Sir Edward Coke, the Chief Justice in England at the time of King James I. Coke was the first person to discard the concept of divine powers. He strongly believed that all people including King, saints and sages should be under the Rule of Law. This doctrine was further developed by A.V.Dicey.
The Rule of Law needs to be associated with following three aspects:
o Presumption of innocence- The accused who has been presented before the court should presumed to be innocent. The burden of proof lies on the other party to prove the charges against him.
o Double Jeopardy- Any person cannot be tried for the same offence more than once.
o Legal Equality- It states that everyone should be equal in the eyes of law. No one should be discriminated on the grounds of gender, religion, caste, class, place of birth, etc.
PRINCIPLES OF ‘RULE OF LAW’-
Albert Venn Dicey (a British jurist and constitutional theorist) developed the concept of Rule of Law in his book The Law of the Constitution (1885). He identified three main principles which together establish the rule of law. These principles are as follows:
SUPREMACY OF LAW- The concept of rule of law relies on the supremacy of law. There is no other power superior than law. Law is the ultimate source of all powers. There is a legal maxim, Lex Rex, which means that the law is King of the Kings. According to Dicey, the rule of law is opposed to influence of arbitrary power. The supremacy of law reduced the arbitrariness in the system and made it more viable.
EQUALITY BEFORE LAW- This principle explains that everyone should be equal in the eyes of law. Professor Dicey while elaborating the equality before law, says that, “With us every official, from the Prime Minister to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.”
PREDOMINANCE OF LEGAL SPIRIT- The predominance of legal spirit focusses on the fact that it is the responsibility of the State to establish the primacy of law all over the country. For instance, a judge from the east-most part of our country passes a warrant to arrest a criminal, who is likely to be found in the other part of the country. The warrant passed by the judge in not his individualistic order, rather it is the order of the State. It is the utmost responsibility of all the State powers to promote the order passed by that judge and perform their duties in order to get the criminal arrested.
IMPORTANCE OF ‘RULE OF LAW’ IN SOCIETY-
1. JUSTICE IS PROMISED- If there is rule of law in any society, then there is more probability of justice being served. Since, there is a single law of the land which guides all the persons under one umbrella, therefore, injustice is less likely to happen. Law provides uniformity and certainty to the administration of justice. The same law has to be applied in every case. There can be no distinction between one case and another case if the facts are same.
2. REDUCTION IN ARBITRARINESS- If there is a single mind which is the supreme authority of the land and justice is left completely to the individual, then dishonest and biased opinions can over rule the justice. Fixed principles of the law of justice avoid the danger of arbitrary, biased and dishonest decisions.
3. INDIVIDUALISTIC ERRORS ARE AVOIDED- There is a constant human tendency to make mistakes. Aristotle in this context observed that, “to seek to be wiser than the law is the very thing which is by good laws forbidden.” It means that law is far better than the minds who administer it.
4. TRUSTWORTHY- Another advantage of adopting the concept of rule of law is that it is more worthy than judgements of the individuals. The human mind is prone to make mistakes and judges are no exception. So, the ‘rule of law’ is one idea which is far more reliable than any other type of rule.
LOOPHOLES OF ‘RULE OF LAW’ IN PRACTICE-
1. DIPLOMATIC DISPENSATION- All the diplomats such as the President, the Vice President, Governors, Members of National Assembly and other high-ranking officials are immune from this rule of law. This is one of the major drawbacks of the system of rule of law. This undermines the principle of equality of everyone before the law.
2. COMPLEX STRUCTURE- Though it is true that law was tried to be made as simple as possible, but it is not practically possible to make every law simple. The complex nature of society in which we live in requires complex sets of rules. So, it is considered nearly impossible to connect a layman to a lawman.
3. EMERGENCY PROVISIONS-Article 21 of the Indian Constitution provides the right to liberty to its citizens. But when any national emergency occurs, this fundamental right of people is strictly suspended. During these times, people are confined to their homes and restrictions are imposed on them.
4. UNAWARENESS- Mostly in developing countries like India, people are unaware about their rights. They do not even know how to read and write; therefore, they cannot comprehend what is mentioned in the constitution. Hence, they are unable to demand for their rights to be fulfilled.
LANDMARK CASE LAWS-
KESAVANANDA BHARATI V. STATE OF KERALA (1973): In this case, the Supreme Court of India included the notion of “Rule of Law” in the basic structure of the Constitution. In this case, it was held that Preamble is the interior part of the Constitution and thus, it can be amended. But the amendment made in the Preamble should not interfere with its basic essence or features.
A.D.M. JABALPUR V. SHIVKANT SHUKLA (1976): The facts of this case are that at the time of national emergency, countless people were arrested without warrant and kept in jail. They did not even know the reason behind their detention. So, they filed a case against the authorities using the writ of HABEAS CORPUS, that is why, this case is also known as the ‘HABEAS CORPUS CASE.” At that time, the Supreme Court held that, “defendants could not stake a claim to their liberty under extenuating circumstances.” Later, the Supreme Court considered this decision as its mistake.
The significance of the Rule of Law lies in the fact that it is not merely discussed by the intellectuals and philosophers but also has its relevance in practicality. The founding fathers of our Constitution provided us with the “RIGHT TO EQUALITY” under Article 14 to Article 18 of the constitution. These fundamental rights include equality before law; prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth; equality in matters of public employment; abolition of untouchability and abolition of titles. All of these rights are justiciable in nature. In this article, societal importance of establishing the rule of law in any country has been discussed. The inadequacy of this system has also been stated above. In order to conclude, we must know the fact that the system of rule of law is the application of set of rules without showing favoritism. Over the years, the Courts have used judicial activism to promote the concept of rule of law. John P Franks stated that, “Under no circumstances should the state impose additional inequalities; it should be required to deal evenly and equally with all of its people.”
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