Rule of Law

The philosophy of the rule of law is an intensely contested notion with an elusive definition to be more substantive. The practice of law generates a demand of that people in positions of authority should exercise their power within a constraining framework of well-established public norms, in the interest of perspective, stable, and general in law. It also comprises a requirement basic rules set out to govern the conduct of people and some legal consequences of specifically prohibited actions.

It insists the operation of discretion through recognized legal system and method, and it should be justified by the independent courts when there is a presence of unauthorized action by those in the conferral of power.

In ancient times, Aristotle stated the contrastive idea between the rule of law with the government of men, and he ventured the opinion that ‘A man may be safer ruler than the written law, but not safer than the customary law.”. Aristotle wrote that “law should govern,” and that citizens should take part in the government due process.

The old legal document in written form, namely the Magna Carta 1215, or for Latin ‘The Great Charter’. It is the first great public act of the nation, establishing the direction for the political system. Its important clause is that ‘to no one, we will sell, to no one deny or delay right or justice.

In the 19th century, Dicey established his three-limbs postulate of the rule of law in his magnum opus ‘An introduction to the study of enactment of the constitution, that is, no man is punishable, except for a distinct breach of law; no man is above the law; and the powerful ability of judiciary as to seek remedy in the independent court. His first postulate is explicitly stated to curb the conferral of discretionary power on government.

The law must be clear and exist in transparency and accessible to citizens. Generally, there must be no law enacted in the retrospective manner. However, in Burmah Oil case, it is held that the parliament intentionally passed the War Damages Act, which shows a severe infringement of the rule of law.

Dicey’s second view to the rule of law set out rule to aware those people in high position, that ‘never you be so high, the law is above you.’