Development and Influence Legal positivism has a long history and a broad influence. It has antecedents in ancient political philosophy and is discussed, and the term itself introduced, in mediaeval legal and political thought see Finnis
The concept of Rule of Law is that the state is governed, not by the ruler or the nominated representatives of the people but by the law. The Constitution of India intended for India to be a country governed by the rule of law. It provides that the constitution shall be the supreme power in the land and the legislative and the executive derive their authority from the constitution.
Later, it discusses the theoretical and practical application of this rule of law in India. A county that enshrines the rule of law would be one where in the Grundnorm [i] of the country, or the basic and core law from which all other law derives its authority is the supreme authority of the state.
The monarch or the representatives of the republic are governed by the laws derived out of the Grundnorm and their powers are limited by the law. The King is not the law but the law is king [ii] The origins of the Rule of Law theory can be traced back to the Ancient Romans during the formation of the first republic; it has since been championed by several medieval thinkers in Europe such as Hobbs, Locke and Rousseau through the social contract theory.
Indian philosophers such as Chanakya have also espoused the rule of law theory in their own way, by maintain that the King should be governed by the word of law. The formal origin of the word is attributed to Sir. The firm basis for the Rule of Law theory was expounded by A.
Dicey and his theory on the rule of law remains the most popular. This has always been the basic understanding of rule of law that propounds that the law rules over all people including the persons administering the law. The law makers need to give reasons that can be justified under the law while exercising their powers to make and administer law.
Equality before the Law: While the principle of supremacy of law sets in place cheques and balances over the government on making and administering law, the principle of equality before the law seeks to ensure that the law is administered and enforced in a just manner.
It is not enough to have a fair law but the law must be applied in a just manner as well. The law cannot discriminate between people in matters of sex, religion, race etc. This concept of the rule of law has been codified in the Indian Constitution under Article 14 and the Universal Declaration of Human Rights under the preamble and Article 7.
Predominance of legal spirit: There must be an enforcing authority and Dicey believed that this authority could be found in the courts.
The courts are the enforcers of the rule of law and they must be both impartial and free from all external influences.
Thus the freedom of the judicial becomes an important pillar to the rule of law. In modern parlance Rule of Law has come to be understood as a system which has safe guards against official arbitrariness, prevents anarchy and allows people to plan the legal consequences of their actions.
Dicey famously maintained that the Englishman does not need Administrative law or any form of written law to keep cheeks on the government but that the Rule of Law and natural law would be enough to ensure absence of executive arbitrariness.
While India also accepts and follows the concept of natural law, there are formal and written laws to ensure compliance. Any law that is made by the legislative has to be in conformity with the Constitute failing which it will be declared invalid, this is provided for under Article 13 1.
Article 21 provides a further check against arbitrary executive action by stating that no person shall be deprived of his life or liberty except in accordance with the procedure established by law.
Article 14 ensures that all citizens are equal and that no person shall be discriminated on the basis of sex, religion, race or place of birth, finally it ensures that there is separation of power between the three wings of the government and the executive and the legislature have no influence on the judiciary.
The Supreme Court of Indian has further strengthened this mechanism through its various judgements, the foremost of them being, A D M Jabalpur v. This was in context of suspension of enforcement of Articles 14, 21 and 22 during the proclamation of an emergency.
The answer of the majority of the bench was in negative for the question of law.The notion of Rule of Law (prééminence du droit), together with those of pluralistic democracy and human rights, represents a fundamental principle and a common European value recognised in, inter alia, in the Statute of the Council of Europe and the case law of the European Court of Human Rights.
For the majority of modern democratic societies, however, the rule of law’s requirement that both rulers and the ruled be accountable to the law is of unquestionable value.
To be sure, in the modern world, it is the liberal tradition that values the rule of law most highly. The rule of law is the foundation for the development of peaceful, equitable and prosperous societies.
We believe there are four key areas that form the umbrella protection of the rule of law. Contact details. At its most basic level the rule of law is the concept that both the government and citizens know the law and obey it.
However the rule of law is also much larger than this. The relevance of the rule of law, and an understanding of its concepts, has it’s origins in the Magna Carta. THE MODERN RULE AGAINST PERPETUITIES WALTER H.
ANDERSON Possibly there is no rule of law that is so simple in its state-ment and yet so difficult of application as the rule against perpetui- destroyed by the rule." 15 This definition would apply equally well to the cognate rules. The rule of law requires, in Annan's words, 'measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.