The constitutional significance of ‘Rule of Law’ in the U.K.

‘Rule of Law’ is a phrase which existed during various phases in the development of
European civilisation as a whole. Thus Aristotle maintained that ‘the rule of law is preferable
to that of an individual’. During the middle ages it was associated with universal law, of
divine inspiration superior to all forms of temporal power and to which the latter ought to
conform. By the 16th century this view of the supremacy of law had been modified in
England to mean the supremacy of the common law rather than a vague universal law. In a
practical sense, the Rule of Law means that the crown must govern according to law rather
than by arbitrary decision. In the British system, therefore, the problem of government, how
to give sufficient power to the country's rulers to enable them to govern efficiently without
encroaching upon the fundamental liberties of the people unreasonably, is resolved in a rather
simple way, not with the help of a constitutional guarantee of fundamental rights or any
charter of constitutional morality, but by the observance of the general principles upheld by
the polity : the ceremonial prerogatives of the Crown, the formal sovereignty of Parliament
and the collection of rules and precepts known as ‘rule of law’.

Various theoretical analyses have suggested that the ‘Rule of Law’ implies the moral
acceptance by the government of certain restrictions on its activities based on the concept of
justice. Towards the end of the 19th century, Prof. A.V. Dicey describing this idea spoke of
the ‘rule of law’ as the fundamental principle of the British Constitution and in order to give
it precision, he resolved it into three distinct propositions:

① No man is punishable or can be lawfully made to suffer body or goods, except for a
distinct breach of law established in the ordinary legal manner before the ordinary courts of
land. → This emphasises the supremacy of the laws and that penalties can only be imposed
by the judiciciary in a prescribed manner.

② Not only is no man above the law, but every man, whatever his rank or condition is subject
to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals .
Here Dicey draws attention to the principle commonly referred to as ‘equality before the
law’.

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③ With us, the law of the constitution, the rules which in the foreign countries naturally form
part of a constitutional code, are not the source but the consequence of the rights of
individuals as defined and enforced by the courts. Here Dicey means that the constitution is
the result of the ordinary law of the land, for its general principles have evolved from the
rights of the individual as upheld by the court in specific cases. This is in sharp contrast to
many a written constitution in which the rights of the individual are declared.

However, Dicey’s views regarding ‘Rule of Law’ as an essential principle of the British
Constitution have been criticised by Sir Ivor Jennings on three major grounds.

① The analysis over-stresses the importance of individual rights. In Britain there is no

② As regards the second proposition that the constitution in particular, Jennings takes Dicey
to task for failing to recognize that administrative law, although relatively insignificant in
comparison with the comprehensive system of ‘droit administratif’ in France, did exist and
had existed for many centuries in England.

③ The assertion of the third proposition that the constitution depends on the law is
unjustified. The courts merely enforce the law as it is but there is no guarantee that it will
always be a good law. Moreover, no law can restrain the Parliament and hence one is more
justified in regarding the supremacy of Parliament as a fundamental principle of the
constitution. Dicey’s propositions therefore undermine any attempt to give a precise
definition to the term ‘Rule of Law’ and we can at best indicate certain notions which are
implied: governmental powers must be distributed and determined by reasonably precise laws
in matters of governing, there must be liberty and equality for all citizens. Ultimately neither
the ‘rule of law’ nor the ‘separation of powers’ guarantee democracy.

The ‘Rule of Law’ does not mean that law is sovereign (supreme) for Parliament can change
the law, nor does it enshrine the principles of individual rights or liberty except in ways

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defined or accepted by parliament. This old idea of ‘rule of law’ supported the principles of a
laissez faire state unwilling to interfere with the liberties and privileges of subjects and in
which the judiciary was superior to the elected representatives of the people. Such ideas are
no longer acceptable. But to accept Jennings’s views in their entirety is almost equivalent to
saying that the principle of the rule of law has had no great effect on the development of the
British institutions and that it now has similarly little influence on the constitution today,
which is not the case. In fact, in recent years, general interest in the desirability of its
application to Britain has increased. This has been reinforced by increasing collectivisation of
British society and the alarm felt that human liberty is endangered by unhampered state
activity however beneficial that activity may be. Consequently, modification may have to be
made to Dicey’s propositions to allow for the development of the modern state, but the basic
ideas which they represent have been and still constitute a very real influence on the
government.

Thus, Madgwick believes that the ‘Rule of Law’ is still of the highest significance. It implies:

① The freedom of the individual must be restricted only under the authority of law. Even the
government and its officials are not any freer than anyone else to act outside the law.
Therefore, a distinction must be drawn between arbitrary and discretionary powers — the
former is a complete violation of the rule of law.

② Further, justice must be regarded as an end in itself. In other words, independence of the
judiciary ought to be upheld. The judiciary does not have a duty to protect the interest of the
state. In cases of doubt, there may be a tendency to protect the individual against the state.

③ The law is the law as interpreted by the judges, until and unless parliament changes the
law. Through the principle of parliamentary sovereignty, a democratically elected parliament
makes the laws; the courts are then free, impartial and unaffected in applying those to
particular cases.

④ Imprisonment or any other punishment can be inflicted only for a specific branch of law,
established in courts according to the recognized procedures. This general statement includes

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such important legal safeguards as ‘habeas corpus’ (no imprisonment without cause and
shown) and the rules of evidence.

⑤ Freedom of expression, publication, assembly — these are freedoms secured by the

Madgwick rightly observes that the phrase ‘the rule of law’ is symptomatic of the problem of
the British constitution - an imprecise core of meaning surrounded and obscured by revered
tradition. Consequently, there are difficulties in trying to give too much precision to the
implications of ‘rule of law’. But vagueness is no proof of non-existence. Although ‘Rule of
Law’ may not exist in the form of Dicey's static doctrine, the term gives expression to a
concept which is generally accepted by the people, irrespective of personal political views.
The concern for maintaining human liberty in the face of increasing state activity is in fact a
universal problem and this has led to an ever growing interest in the general concept of ‘rule
of law’.

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