Pre-University (CIE) Comparative Government: Specimen Questions with Answers 7 - 7 of 53

Question 7

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Discuss Rule of Law as proposed by Dicey.

Explanation

  • One of the most important feature of the British Constitution is the Rule of Law. This has never been expressly enacted as a statute, but is implicit in the various acts of Parliament, judicial decisions and in the Common Law. As defined by English jurists, the rule of law means, “The supremacy or dominance of law, as distinguished from mere arbitrariness, or from some alternative mode, which is not long, of determining or disposing of the rights of individuals. According to Dicey, rule of law means three things

  • Firstly, it means that “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary courts of land. In this sense the rule of law is contrasted with every system of govt. based on the exercise by persons in authority of wide arbitrary or discretionary powers of constraint”. This means that no person in England can be arbitrarily punished.

  • All persons accused of an offence should be in an ordinary court of law in the ordinary legal manner and no one is to be arbitrarily deprived of his life, liberty and property. Cases are to be tried in an open court and the accused has a right to be represented and defended by a counsel of his own choice. Judgment is too delivered in an open court and the accused has a right to appeal to higher courts. These rules of judicial procedures reduce the possibility of executive arbitrariness and guarantees the British people the security of their life, liberty and property.

  • Secondly rule of law means equality before law. This is a very important principle of the rule of law. It implies that in England every citizen rich or poor, high or low is subject to the same law and the same courts of law. If any public official does any wrong to an individual or exceeds the power rested in him by law, he can be sued in any ordinary court and can be tried in ordinary manner.

  • That means the law does not make any distinctions between acts of governments and those of ordinary citizens. In this respect, there is no separate law for the public officials and they are subject the same laws which applies to everyone. The people who formed the govt. should exercise their power in accordance with the laws of the parliament.

  • Thirdly rule of law means that with the English, “The general principles of the constitution are…. . The results of judicial decisions determining the rights of private persons in particular cases brought before the courts”.

  • This principle has emphasized the contribution of judiciary in the protection of the liberties and rights of the British people. In England rights of the citizens do not flow from the constitution, but from judicial decisions.

  • The Rule of Law is the product of centuries of struggle of the British people for the recognition of their fundamental rights. In Britain what is supreme is law. Every act of the govt. must be authorized by law, either by statute law passed by Parliament or by Common Law, which has been recognized for hundreds of years. In England there is no written law or constitution which incorporates the rights of man.

  • These rights are secured to them by the rule of law. Parliamentary supremacy is subject to rule of law. In England, the nobility does not enjoy special privileges and cannot disregard the ordinary law. Rule of Law affords the ordinary citizen adequate guarantees against undue interferences with his rights by any other person or any govt. servant.

  • There are exceptions to Rule of Law. Since Dicey wrote on Rule of Law, several developments have taken place in England in the light of which the rule of law needs restatement. In practice some significant departures from the meanings given by Dicey to Rule of Law have been made. In the first place the growth of delegated legislations has touched upon the principle of Rule of Law.

  • With the growth of functions of modern states, wide discretionary authority has been left in the hands of administrative authorities to meet the exigencies of time and peculiarities of a situation. Secondly, there are certain acts which have conferred some privileges and immunities over public authorities and which are not available to private individuals.

  • Again it hardly needs mention that the diplomatic agents are immune from the process of the local courts in conformity with the practice of civilized states. Thus it is unrealistic to adhere to strict interpretation of the 19th century. However the fact remains that the Rule of Law is an important principle of English constitution. England is still governed by law and not according to the whims and caprice of the rule of law.

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