concepts of the rule of law and separation of powers to con- sider judicial decision tion, with the greatest difference between the two defined eloquently by. THE RULE OF LAW AND THE SEPARATION OF POWERS. DENISE . law Andrew Lynch's article reveals a connection between the integrity of the judicial. According to Finnis, by “Rule of Law” is meant a system in which: i. 3 Separation of Powers “Montesquieu, a French scholar, found that concentration of . JUDICIARY ACTING 0VER PARLIAMENT huge impact on Centre-State Relations.
Similarly the union of the legislative power and the judiciary would provide no defence for the individual against the state. The importance of the doctrine lies in the fact that it seeks to preserve the human liberty by avoiding concentration of powers in one person or body of persons. The same individual acting as prosecutor, judge, jury was unacceptable. The three organs of the Government viz.
Under the Indian Constitution, executive powers are with the President, legislative powers with the Parliament and judicial powers with the Judiciary - Supreme Court, High Courts and subordinate courts.
In general terms judicial review may be appropriate where: The judiciary has shed its pro-status-quo approach and taken upon itself the duty to enforce the basic rights of the poor and vulnerable sections of society, by progressive interpretation and positive action.
The violation of basic human rights has also led to judicial activism. Finally, due to the misuse and abuse of some of the provisions of the Constitution, judicial activism has gained significance.
Besides the above mentioned factors, there are some other situations that lead to judicial activism. According to Justice Douglas, Judiciary is the guardian of the conscience of the people as well as of the law of the land.
Indian Constitution itself provides scope or makes space for emergence of judicial activism. Articles 13, 32, and are of considerable importance in judicial activism. In the exercise of the judicial review, it can examine the constitutionality of executive or legislative act.
The High Courts have also the same power in this regard.
First Principles: the Rule of Law and Separation of Powers
Article 32 and makes the Supreme Court as well as the High Courts the protector and guarantor of the fundamental rights.
Article indicates that the power of the Supreme Court is to declare the law and not enact it, but in the course of its function to interpret the law, it alters the law.
Art enables the Supreme Court in exercise of its jurisdiction to pass such order or make such order as is necessary for doing complete justice in any cause or matter pending before it. Law Resource India; http: Now, any public spirited citizen can move or approach the Court of Law for the any cause either in the interests of the public or for public welfare by filing a petition before: Union of India21, enumerated the following reasons for liberalization of the rule of Locus Standi: R SC 22 Ibid.
The Court directed the Company manufacturing hazardous and lethal chemicals and gases posing danger to health and life of workmen and people living in its neighbourhood, to take all necessary measures and to pay compensation to the victim of Oleum gas. State of Rajasthan,26 the Supreme Court has laid down exhaustive guidelines to prevent sexual harassment of working women in places of their work until a legislation is enacted for that purpose.
The court held that it is the duty of the employer or other responsible person in work-places or other institutions, whether public or private, to prevent sexual harassment of working women. Union of India, the Supreme Court discussed at length provisions of Article of the Constitution of India and related issues. The misuse of Articleto impose central authority on states, was stopped after this judgement. In the expanded form, it includes a right against interference with his or her private life, family and home life, attack on his honour and reputation.
It is a right against disclosure of irrelevant and embracing facts relating to his private life; spying, prying, watching and be setting and interference with his correspondence. This principle is not expressly stated in the Indian Constitution. The Fundamental rights enshrined in the Constitution does not include that a person has a right to be tried without undue delay. However, the Supreme Court in Hussainara Khatoon vs.
Home Secretary, State of Bihar36 has held that though speedy trial is not specifically enumerated as fundamental rights, yet it is implicit in broad sweep and content of Article 21 which deals with right to life and liberty. State of Maharashtra39 that the right to free legal services is an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and is implicit in Article 21 of the Indian Constitution. Superintendent, Central Jail, Tihar, New Delhi41; recognised that the right to life is more than mere animal existence, or vegetable substance.
Even in prision, a person is required to be treated with dignity. But in Jolly George Verghese vs. Bank of Cochin,43 it was held by the Supreme Court that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is a violatin of Article 21 of the Constitution of India.
State of West Bengal44 held that monetary compensation should be awarded for established infringement of fundamental rights guaranteed under Article This right shall include freedom to seek, receive and impart information and ideas of all kinds, either orally or in writing or in print or in the form of art or through any other media of his choice. The Indian Constitution while under Article 19 1 a gurantees the freedom for speech and expression as fundamental rights, the right to information is not specifically mentioned in Part III of the Constitution.
Union of India45, Justice Bhagwati stated that the concept of an open Government is the direct emanation from the right to speech and expression guranted under Article 19 1 a. Therefore disclosure of information in regard to the functioning of the must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The efforts of the highest Court in preventing social evils, environmental pollution, etc, is indeed laudable when the legislature is lagging behind in bridging the lacuna in existing legal system and administration is not well equipped to meet the challenge.
The accent of the provisions of the Constitution of India is towards securing all round development of the individual and ensuring his dignity through Rule of Law Even the Indian Constitution does not provide for absolute Separation of Powers.
The main idea behind this concept among the framers of the Constitution of India was that the rule of law can be maintained only when there is no absolute concentration of powers in one single 44 AIR SC p. Whenever there is arbitrariness or unreasonableness, there is denial of rule of law. In Bachan Singh Vs. State of Punjab,48 it was held that the Rule of Law has three basic and fundamental assumption.
Law is the manifestation of the principles of justice, equity and good conscience. The prevailing social conditions and actualities of life are to be taken onto account in adjudging whether or not the impugned legislation would sub serve the purpose of the society.
Law must always be responsive to the social development. This continuing process requires watchful legislature and alert judiciary. India is a welfare state, and being a welfare state, Government plays a very dominant role in moulding the society; or in large perspective; the State.
Directive principles laid down in Part IV of the Indian Constitution establishes duty on the Government to seek welfare of the people. Legislature is to legislate laws and enact laws for achieving the welfare of the people.
Executive are given the responsibility to execute the laws made by the legislature and the Judiciary to adjudicate them. But Fuller believed, as a matter of political psychology, that there would be reluctance to use the forms of law—general and public norms—to embody and inscribe injustice.
Fuller acknowledged that this link between legality and justice was tentative. It was certainly controversial. But whether this connection held or not, he also wanted to insist that the complete absence of respect for formal criteria of legality might deprive a system of power of its status as law: When a system calling itself law is predicated upon a general disregard by judges of the terms of the laws they purport to enforce, when this system habitually cures its legal irregularities, even the grossest, by retroactive statutes, when it has only to resort to forays of terror in the streets, which no one dares challenge, in order to escape even those scant restraints imposed by the pretense of legality—when all these things have become true of a dictatorship, it is not hard for me, at least, to deny to it the name of law.
Fuller responded by denying that the significance of his eight principles was purely instrumental. They also constituted a morality of respect for the freedom and dignity of the agents addressed by the law: This thesis was separate from the connection between law and morality intimated in Fuller But the two accounts of the moral significance of law were connected in a way that John Finnis explained: A tyranny devoted to pernicious ends has no self-sufficient reason to submit itself to the discipline of operating consistently through the demanding processes of law, granted that the rational point of such self-discipline is the very value of reciprocity, fairness, and respect for persons which the tyrant, ex hypothesis, holds in contempt.
He understood that law constituted a distinct kind of governance that might not be relevant for every task of the state.
He contrasted it not just with a Nazi-style reign of terror, but with the sort of managerial administration that might be necessary for allocative decision-making in a mixed economy like the United States in the s. Rule of Law and Rule by Law Some theorists draw a distinction between the Rule of Law and what they call rule by law see e.
They celebrate the one and disparage the other. The Rule of Law is supposed to lift law above politics. The idea is that the law should stand above every powerful person and agency in the land.
Rule by law, in contrast, connotes the instrumental use of law as a tool of political power. It means that the state uses law to control its citizens but tries never to allow law to be used to control the state. Rule by law is associated with the debasement of legality by authoritarian regimes, in modern China for example. Thomas Hobbes may be seen as a theorist of rule by law. But Hobbes also thought that it would undermine peace—indeed it would undermine the very logic of sovereignty—for the ultimate law-maker to be bound by the laws he applied to his subjects Hobbes : However, the distinction may not be so clear-cut.
Even rule by law seems to imply that rulers accept something like the formal discipline of legality.
Rule of law - Wikipedia
Unless the orders issued by the state are general, clear, prospective, public, and relatively stable, the state is not ruling by law. So this thin version of legality does still have moral significance in the respect it pays to the human need for clarity and predictability. Even if its use remains instrumental to the purposes of the state, it involves what Fuller called a bond of reciprocity with the purposes of those who are governed: Some jurists who maintain the contrast between the Rule of Law and rule by law have a more ambitious agenda.
They take seriously the ancient idea that we might be ruled by laws and not by men. After all, all law is made by people and interpreted by people and applied by people. It can no more rule us by itself, without human assistance, than a cannon can dominate us without an iron-monger to cast it and an artilleryman to load and fire it. The jurists who contrast the Rule of Law with rule by law believe they can make this work by focusing on laws whose human origins are in some way diffuse or immemorial.
We are not necessarily talking here about natural law, but perhaps about something like customary law or common law—law that is not so evidently a top-down product of powerful human law-makers Epstein Common law grows and develops under its own steam, and need not be conceived as a device by which some identifiable humans rule over others.
No doubt there is a lot of mythology in this. But it remains true that the human element is diffuse in this sort of system, and at any given time the law that emerges is a resultant of the work of many people rather than the intentional product of a domineering majority ruling us from the legislative center of a state.
As we saw in the discussion of Hayekthe other side of this coin is a disparagement of legislation, precisely because its enactment seems patently and undeniably to represent the rule of powerful officials. Legislation is a matter of will. The legislative process produces law simply by virtue of a bunch of people in an assembly deciding that a given law is to be produced.
And this is done by the very men—powerful politicians—to whose power the Rule of Law is supposed to be an alternative. However, most people who value the Rule of Law do not accept this approach.
If a statute is properly drafted if it is clear, intelligible and expressed in general terms and prospectively enacted and promulgated, and if it is administered impartially and with due process—they will call this an entirely appropriate exercise under the Rule of Law. Indeed that is what many scholars mean by the Rule of Law: The argument that it should be put aside because it does not contrast sufficiently with the rule of men seems perverse.
No one doubts that legislation can sometimes undermine the Rule of Law, by purporting for example to remove legal accountability from a range of official actions or to preclude the possibility of judicial review of executive action.
But this is not a problem with legislation as such; this is a concern about the content of particular enactments. Rule by judges, too, can sometimes be seen as the very sort of rule by men that the Rule of Law is supposed to supersede see Waldron Formal, Procedural and Substantive Requirements Theorists of the Rule of Law are fond of producing laundry lists of the principles it comprises.
These principles are of disparate kinds, which may loosely be divided into principles that address the formal aspects of governance by law; principles that address its procedural aspects ; and principles that embrace certain substantive values.
These principles are formal, because they concern the form of the norms that are applied to our conduct. So for example, the requirement that laws be general in character, rather than aimed at particular individuals, is purely a matter of form.
A formal requirement of generality does not guarantee justice; but that partly reflects the fact that justice and the Rule of Law work as separate criteria for evaluating a political system.
Generality is an important feature of legality, reflected in the longstanding constitutional antipathy to Bills of Attainder. Of course law cannot work without particular orders, but as Raz points out : These rules themselves should operate impersonally and impartially. Besides the form of the rules themselves there is also the nature of their presence in society. The Rule of Law envisages law operating as a relatively stable set of norms available as public knowledge.
These are features that flow partly from the fact that laws are supposed to guide conduct, which they cannot do if they are secret or retroactive. But it is not just a matter of the pragmatics of governance.
Laws face in two directions: Laws that are secret and retroactive so far as i is concerned may still operate effectively in respect of ii. So the Rule-of-Law requirements of publicity and prospectivity have an additional significance: The requirement of clarity is also important in this regard. Laws must be public not only in the sense of actual promulgation but also in the sense of accessibility and intelligibly.
True, much modern law is necessarily technical Weber : It is also an important part of the Rule of Law that there be a competent profession available to offer such advice and that the law must be such as to make it possible for professionals at least to get a reliable picture of what the law at any given time requires.
The Rule of Law (Stanford Encyclopedia of Philosophy)
In the nineteenth century, Jeremy Bentham We might say that no one should have any penalty, stigma or serious loss imposed upon them by government except as the upshot of procedures that involve I have adapted this list from Tashima What the detainees demanded, in the name of the Rule of Law, was an opportunity to appear before a proper legal tribunal, to confront and answer the evidence against them such as it wasand to be represented so that their own side of the story could be explained.
No doubt the integrity of these proceedings would depend in part on the formal characteristics of the legal norms that were supposed to govern their detention, whose application in their case they could call in question at the hearings that they demanded. It is difficult to make a case at a hearing if the laws governing detention are kept secret or are indeterminate or are constantly changing.
Even so, we still miss out on a whole important dimension of the Rule of Law ideal if we do not also focus on the procedural demands themselves which, as it were, give the formal side of the Rule of Law this purchase. Some procedural requirements are also institutional in character: This side of the Rule of Law is connected with the constitutional principle of the separation of powers. That principle is sometimes justified simply on the ground that it is unhealthy for power to be institutionally concentrated in society.
But it also has a Rule of Law justification inasmuch as it assigns distinct significance to distinct stages in the making and application of laws Waldron They do not think it is possible to sharply separate our political ideals in the way Raz seems to suppose. Generality—proceeding according to a rule—is often said to contain the germ of justice Hart And, stability, publicity, clarity, and prospectivity indicate a pretty fundamental connection between the Rule of Law and the conditions of liberty.
We have to be careful, however, to distinguish between allegedly substantive requirements of the Rule of Law and specification of the deeper values that underlie and motivate the ideal even in its formal and procedural requirements.
Some jurists believe that there is a special affinity between the Rule of Law and the vindication and support of private property. The commitment to such processes is the essence of the rule of law. But they think nevertheless that a contingent connection between the Rule of Law and private property can be established by showing that the forms of regulation defenders of private property are concerned about tend to be forms of regulation that the Rule of Law, even on a more austere conception, prohibits.
What was missing was the substantive component of the rule of law. The process by which the laws were made was not fair only whites, a minority of the population, had the vote. And the laws themselves were not fair. They institutionalized discrimination, vested broad discretionary powers in the executive, and failed to protect fundamental rights. World Justice Project Those considerations, he said, are better understood as independent dimensions of assessment.
A state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed.
And many liberals are inclined to follow them in that.
But this is not the only possibility. Many associate the Rule of Law with a presumption of liberty or the principle of human dignity. Others—Arthur Chaskalson hinted at this—associate the Rule of Law with a substantive dimension of democracy. All this sounds an analytic danger signal.
- The Rule of Law
- Rule of law
Those who favor property rights and market economy will scramble to privilege their favorite values in this regard.
But so will those who favor human rights, or those who favor democratic participation, or those who favor civil liberties or social justice. The result is likely to be a general decline in political articulacy, as people struggle to use the same term to express disparate ideals. Most fundamentally, people value the Rule of Law because it takes some of the edge off the power that is necessarily exercised over them in a political community.
In various ways, being ruled through law, means that power is less arbitrary, more predictable, more impersonal, less peremptory, less coercive even. It establishes what Fuller Connected with this, the Rule of Law is valuable and important because it establishes an environment that is conducive to liberty. My action can hardly be regarded as subject to the will of another person if I use his rules for my own purposes as I might use my knowledge of a law of nature, and if that person does not know of my existence or of the particular circumstances in which the rules will apply to me or of the effects they will have on my plans.
Predictability is often cited as a Rule-of-Law virtue. In his well-known recent book on the subject, Tom Bingham indicated that one of the most important things people needed from the law that governed them was predictability in the conduct of their lives and businesses.
He quoted Lord Mansfield to the effect that [i]n all mercantile transactions the great object should be certainty: Lord Mansfield in Vallejo v. Wheeler 1 Cowp. There may be no getting away from legal constraint in the circumstances of modern life, but freedom is possible nevertheless if people know in advance how the law will operate and how they have to act to avoid its application.
Knowing in advance how the law will operate enables one to make plans and work around its requirements see Hayek The Rule of Law is violated, on this account, when the norms that are applied by officials do not correspond to the norms that have been made public to the citizens or when officials act on the basis of their own discretion rather than norms laid down in advance.
So we need a basis for expectation. It is hence that we have the power of forming a general plan of conduct; it is hence that the successive instants which compose the duration of life are not isolated and independent points, but become continuous parts of a whole.
Bentham [, ]: Joseph Raz and Lon Fuller took the point about freedom even further. To embark on the enterprise of subjecting human conduct to rules involves … a commitment to the view that man is … a responsible agent, capable of understanding and following rules….
To judge his actions by unpublished or retrospective laws, or to order him to do an act that is impossible, is to convey … your indifference to his powers of self-determination. Procedural principles capture a deep and important sense that law is a mode of governing people that treats them as though they had a perspective of their own to present on the application of norms to their conduct and situation.
Applying a norm to a human individual is not like deciding what to do about a rabid animal or a dilapidated house. It involves paying attention to a point of view. As such it embodies a crucial dignitarian idea—respecting the dignity of those to whom the norms are applied as beings capable of explaining themselves. Opposition to the Rule of Law No account of the Rule of Law is complete if it does not mention the ways in which this ideal is deprecated. The laudatory history of the Rule of Law in the work of thinkers like Aristotle, Locke, Dicey, Hayek and Fuller has been matched by opponents of legality such as Plato in The StatesmanThomas Hobbes at least if the Rule of Law is supposed to take us beyond rule by lawand Carl Schmitt in his attack on parliamentarism and on the liberal assumption that rules can prevail even under conditions of endemic crisis.
The criticism by Plato c. From his perspective, which extolled the application of focused intelligence and insight by those in power, insistence upon the use of law in government was like a stubborn, stupid person who refuses to allow the slightest deviation from or questioning of his own rules, even if the situation has in fact changed and it turns out to be better for someone to contravene these rules.
Statesman b—c Rules themselves were part of the problem: These concerns are echoed in the work of modern legal pragmatists like Posner who place much more faith in insight of judges into new situations than in the application of established rules or strained analogies with ancient precedents. Echoes of the Platonic critique are also heard in those who privilege decisive executive decision-making in times of crisis, especially if the crises seem to be successive and unending Schmitt ; Posner and Vermeule The sense of what good law-making and ordinary legal administration require conveyed by the principles of the Rule of Law is sometimes criticized as archaic.
Partisans of the Rule of Law often think in terms of clearly drafted and prospective measures promulgated as norms that can stand in the name of the whole community and form a publicly acknowledged framework for their actions and transactions. But this is not really how law operates in the modern world.
As Rubin points out, a great deal of modern legislation consists simply of a frame-working statute authoring agencies to develop much more detailed rules which are conveyed to the public—to the extent that is necessary—by modes of communication much more complex and nuanced than those envisaged in traditional models of the Rule of Law.
But it has little or nothing to do with the way law actually operates or the way legislatures communicate with agencies and agencies in turn communicate with those whose actions and businesses they supervise Rubin At the same time, there are concerns about the mentality that is fostered by an excessive emphasis on the Rule of Law.
In its most extreme form, the Rule of Law can have the effect of closing down the faculty of independent moral thought in the officials the judges, for example: Sometimes it is important, for the sake of clear and courageous moral judgment, not to exaggerate the importance of something being required by law. Other concerns about the mentality fostered by the Rule of Law include concerns about legalism and the tendency to over-formalize or over-bureaucratize relationships that are more healthily conceived in terms that are more informal.
This is not just a matter of legalizing the personal realm; it is also a matter of understanding, for example, the damage that can be done to relations between officials like social workers and vulnerable clients by replacing bringing in rigid rules to replace relatively informal professional norms Simon Controversies about Application As well as these debates about the value of the Rule of Law there is, within the camp of those who stand for legality, incessant controversy about what the Rule of Law requires.
I have mentioned the general debates between defenders of formal, procedural, and substantive conceptions. There are also a number of particular debates. Some jurists, like Dicey and to a lesser extent Hayek insist that official discretion is inherently antithetical to the Rule of Law. Others, like Daviscondemn this as an extravagant position, arguing that discretion is ineliminable in the modern administrative state.
The rule of the Rule of Law is not to eliminate discretion, but to ensure that it is properly framed and authorized, and that the application of rules and judicial procedures is preserved for those cases where liberty and well-being are most seriously at stake. Legal systems use both types of norm Sunstein ; they use standards for cases where the appropriate decision may vary with ambient circumstances and it seems better to trust the judgment of those who face a particular situation, rather than laying it down in advance.
At the same time standards allow for less certainty in the law, especially when it is difficult for the person attempting to comply with the norm to predict how his judgment will be viewed by an official or by a court.
Hayek suggests that [o]ne could write a history of the decline of the Rule of Law … in terms of the progressive introduction of these vague formulas into legislation and jurisdiction. Opinions differ as to whether this should be regarded as something altogether different from the Rule of Law.
On the one hand, it looks like a genuine alternative, and little is gained by assimilating its desirable features, such as they are, to Rule-of-Law requirements.