ADMINISTRATIVE LAW

“RULE OF LAW VS RULE BY LAW”

Project work submitted to the

Tamil Nadu National Law School

by

MOHANDAS.P

BA0150026

Under the guidance of

Mrs. DEEPA MANICKAM

ASSISTANT PROFESSOR OF LAW

TAMIL NADU NATIONAL LAW SCHOOL

APRIL 2018

© 2018. All rights reserved.

 INDEX

NO CONTENTS
1 INTRODUCTION
2 ELEMENTS OF RULE OFLAW
3 RULE OF LAW:DICEY’S PRINCIPLE
4 COMPONENTS OF RULE OF LAW
5 CRITICISMS IN RULE OF LAW
6 RULE OF LAW IN INDIA
7 RULE BY LAW: NAZI GERMANY
8 DIFFERENCE BETWEEN RULEOF LAW AND RULE BY LAW
9 CONCLUSION
10 BIBLIOGRAPHY
 CHAPTER - I

INTRODUCTION

The rule of law is the legal principle that law should govern a nation, as opposed to being
governed by arbitrary decisions of individual government officials. It primarily refers to the
influence and authority of law within society, particularly as a constraint upon behaviour,
including behavior of government officials. The phrase ‘rule of law’ can be traced back to 16th
century Britain, and in the following century the Scottish theologian Samuel Rutherford used
the phrase in his argument against the divine right of kings. 1 The rule of law was further
popularized in the 19th century by British jurist A. V. Dicey. 2 The concept, if not the phrase,
was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern". Rule
of law implies that every citizen is subject to the law, including law makers themselves. In this
sense, it stands in contrast to an autocracy, dictatorship, or oligarchy where the rulers are held
above the law. Lack of the rule of law can be found in both democracies and dictatorships, for
example because of neglect or ignorance of the law, and the rule of law is more apt to decay if
a government has insufficient corrective mechanisms for restoring it. Government based upon
the rule of law is called nomocracy. Rule by law can become an instrument of oppression and
it can give legitimacy to the enactment of laws which may grossly violate basic human rights.
So, this project will be analysis of the rule of law and rule by law and to make a comparative
analysis on the same. Rule by law simply means that the country has some sort of legislative
authority (whether it be the Sovereign or a specialized legislative branch) and said body's
decisions constitute the highest level of hierarchy in a country's legal system except for its
constitution.

ELEMENTS OF THE RULE OF LAW

Fuller stated eight elements of law.
1. Laws must exist and those laws should be obeyed by all, including government officials.
2. Laws must be published.

1
Taylor, Veronica L. “Regulatory Rule of Law.” Regulatory Theory: Foundations and Applications, edited by
PETER DRAHOS, ANU Press, Acton ACT, Australia, 2017, pp. 393–414. JSTOR,
www.jstor.org/stable/j.ctt1q1crtm.33.
2
Allan, T. R. S. “Dworkin and Dicey: The Rule of Law as Integrity.” Oxford Journal of Legal Studies, vol. 8, no. 2,
1988, pp. 266–277. JSTOR, JSTOR, www.jstor.org/stable/764314.
3. Laws must be prospective in nature so that the effect of the law may only take place after
the law has been passed.
4. Laws should be written with reasonable clarity to avoid unfair enforcement.
5. Law must avoid contradictions.
6. Law must not command the impossible.
7. Law must stay constant through time to allow the formalization of rules; however, law
also must allow for timely revision when the underlying social and political
circumstances have changed.
8. Official action should be consistent with the declared rule.

Must not
command
impossible
Must be Must avoid
obeyed by contradictio
authorities ns

Constant
Must be
and timely
published
revision

consistent
prospective with the
in nature declared
rule
avoid unfair
enforcement

Figure 1 – Elements of Law

RULE OF LAW: DICEY’S PRINCIPLES
"The King himself ought not to be subject to man, but subject to God and the law, because the
law makes him King"- Lord Chief Justice Coke quoting Bracton said in the case of
Proclamations (1610) 77 ER 13523

Dicey defined rule of Law as the “absolute supremacy or predominance of regular law as
opposed to the influence of arbitrary power and excludes the existence of prerogatives or even
wide discretionary power on the part of government”. 4 Dicey asserted that wherever there is
discretion, there is room for arbitrariness which leads to legal insecurity of citizens. Other aspect
of Dicey’s Rule of Law is equality before law or equal subjection of ordinary law to all class of
people by ordinary court. Whereas he asserted that the French Droit Administratif is a bad law
where there are separate tribunals for different matters, he further insisted that England had not
any of similar or same system existed.5
The later view of Dicey about the equality and dominance of law over arbitrariness set
standard of most civilized Constitutions of world. However, the later views on droit
administrative impaired the development of Administrative law at very early stage where it
required a support. The Administrative Law was, for almost all the time, including Dicey’s
dominion, was present, but, was never recognized as it should have been for a neat and
satisfactory development in common law countries.

3
KRISTY J HOOD, Conflicts of Law within The U.K, Oxford University Press, 2007;
4
The Law of Constitution, pg 198;
5
M.P JAIN, S.N. JAIN, Principles of Administrative Law, Wadhwa Nagpur, 5th Ed.;
 CHAPTER - II
DEVELOPMENT OF RULE OF LAW IN INDIA

The rule of law in India has been a platform for all Administrative Action and judicial review.
Supreme Court has propounded the idea in many cases like Bachan Singh v. State of Punjab6 and
A.D.M Jabalpur7 . A significant derivative of Rule of Law in Administrative Law is Judicial
Review. Judicial review is very important part of Indian Administrative system where it is
considered as part of Basic Structure Doctrine.

The process of judicial review keeps the unreasonable and arbitrariness under control. The
absence of arbitrary power is first essential rule of law on which whole Constitutional structure is
based. 8 In the case of Golaknath v. State of Punjab 9 it was held that rule of law under the
constitution serves the needs of people without undoubtedly infringing their rights. It
recognisessocial reality and adjust to social requirement as required time to time. In A.K.
Kraipak v. Union of India10 it was held that under our constitution the rule of law pervades over
entire field of administration and every organ of the state is regulated by the rule of law accepted
by our Constitution. In State of Punjab v. Khanchand11it was held that rule of law require that
any power of officer is subject to power of Court. In the case of Zahira Habibullah v. State of
Gujarat12 it was held that the rule of law win administration is closely related to human rights
protection. The binding nature of judgment of court is considered to be essential part of rule of
law.13

A.C.DICEY RULE OF LAW

1. Supremacy of Law
No man shall be punished or made to suffer in body or goods except for the violation of

6
AIR 1982 SC 1325,para 9;
7
AIR1976 SC 1207, para 220;
8
Jaisinghani v. union of india, AIR1967 SC 1643;
9
AIR 1967 SC 1836
10
AIR 1970 SC 150;
11
AIR 1974 SC 543;
12
AIR 2004 SC 3114;
13
Darayo vs State of UP, AIR 1967 Sc 1457
 law. Such a violation must be established in an ordinary court of land and in ordinary
legal manner.
2. Equality before Law
No man is above the law and everyone, whatever his condition or rank is, is subject to the
ordinary laws of the land. It means a person can sue or be sued in a court of law.
3. Predominance of Legal spirit
The result of the ordinary law of the land is constitution. It indicates that the general
principles of the constitution are the result of judicial decision of the courts in
England. However, this principle does not apply in case of written constitution. It stands
modified in India, where it reads that the constitution is the supreme law of land & all
other laws in order to be legally valid shall conform to constitution.

Important Components of Rule-of-Law Reforms

Court of
reforms

Rule
of law
Legal
rules

A. Court Reforms

The efficiency of the courts is an important component in rule-of-law reforms as the existence of
a judiciary is a fundamental aspect of the rule of law. At the most basic level, this simply meant
that courts needed to be available to adjudicate disputes and enforce resolutions.

B. Legal Rules

Another important rule-of-law reform goal is to build the legal rules. As Fuller stated, laws must
exist. Between 1990 and 1995, 45 developing and former socialist countries enacted new
investment laws or codes covering a wide range of areas. Many of these investment laws were
passed to liberalize the existing investment regime in the developing country by offering clear
and broad legal protection for all types of investments.

INSTITUTIONAL ENCOURAGEMENT ON THE GLOBAL LEVEL

To encourage additional country-specific development, in the early 1990s the World

Bank and the International Monetary Fund (IMF) began conditioning financial assistance on the
implementation of the rule of law in recipient countries. These organizations provided aid to
support initiatives in legislative drafting, legal information, public and legal education, and
judicial reforms, including alternative dispute resolution.
CRITICISMS OF THE RULE OF LAW
A. Law as the Ruling Standard
Critics of the rule of law, however, have noted that this system creates a ruling elite that has the
power to manipulate through the law. Because judicial interpretation and enforcement of the law
is influenced by the ruling elite, the rule of law does nothing more than legitimize already
existing legal relationships and power structures. The absence of predetermined outcomes
coupled with the possible influence of the ruling elite means that the obligations of equality and
predictability that the rule of law imposes are impossible to achieve. Although the rule of law
appears to be objective, meaning that it is fairly applied to all people, it is actually subjective and unfairly
applied. The rule of law theory has therefore gained an undeserved legitimacy in the modern
world.

B. Additional Limits of the Rule of Law

Laws are often incapable of providing definitive standards of behavior because of their complex
structures and unavoidable ambiguities in language. As mentioned previously, this often leads to
the unpredictable application of the law. Critics of the rule of law claim that due to the
indeterminacy in the rules, at no time is a person fully protected within a sphere of individual
freedoms. Consequently, one can never be sure that their actions are legitimate or their freedom
justified. Furthermore, the rule of law may not be tied to general notions of justice or fairness.
The rule of law is therefore sometimes criticized for tolerating extraordinarily unjust rules, rules
that undercut the theoretical justification of the rule of law the promotion of liberty and
restrained government.
C. Law & Development: Legal Transplantation
The term legal transplantation describes the phenomenon of borrowing legal rules from other countries.
When developing countries such as these adopt laws from other countries, the rules borrowed
may not fit the underlying tradition, culture, and social context of the developing country.

RULE BY LAW

Nazi germany
Nazi Germany under the leadership of Hitler soon became a dictatorship. A dictatorship
requires one person and one party to be in control of a nation and a climate of fear – this was
provided by Himmler’s. Personal freedom disappeared in Nazi Germany.
How did Germany descend so quickly into becoming a dictatorship?
When Hitler was appointed in January 1933, Germany was a democracy. Germany had fair
elections; nobody had their right to vote abused; there were numerous political parties you could
vote for etc. To pass a law, the Reichstag had to agree to it after a bill went through the normal
processes of discussion, arguments etc. Within the Reichstag of January 1933, over 50% of
those who held seats were against the Nazi Party. Therefore it would have been very unlikely
for Hitler to have got passed into law what he wanted. Many saw Hitler as a fall-guy politician
who would have to shoulder to blame if things got worse under his leadership.

Hitler had promised a general election for March 1933. This would have been, in his
mind, the perfect opportunity for him to show all politicians who opposed him where the true
loyalties lay in the German people. In fact, 1932 had shown Hitler that there was a possibility
that support for the Nazis had peaked as their showing in the November 1932 election had
shown. Anything other than a huge endorsement of Hitler and the Nazi Party would have been a
disaster and a gamble which it is possible that Hitler did not want to take.
One week before the election was due to take place, the Reichstag building burned
down. Hitler immediately declared that it was the signal for a communist takeover of the nation.
Hitler knew that if he was to convince President Hindenburg to give him emergency powers – as
stated in the Weimar Constitution – he had to play on the old president’s fear of communism.
What better than to convince him that the communists were about to take over the nation by
force?
A known communist – Marianus van der Lubbe – was caught near the Reichstag building
immediately after the fire had started. Those that arrested him – Nazi officials – claimed that
Lubbe confessed to them that the fire was a signal to other communists to start the revolution to
overthrow democracy in the country. Matches were allegedly found on van der Lubbe and those
who arrested him claimed that he smelt of petrol. Hitler asked Hindenburg to grant him
emergency powers in view of the ‘communist takeover’. Using the constitution, Hindenburg
agreed to pass the Law for the Protection of the People and the State.
This law gave Hitler what he wanted – a ban on the Communists and Socialists taking
part in an election campaign. The leaders from both parties were arrested and their newspapers
were shut down. To ‘keep the peace’ and maintain law and order, the SA (the Brown Shirts)
roamed the streets beating up those who openly opposed Hitler. After the burning down of the
Reichstag, politicians had nowhere to meet. The Kroll Opera House in Berlin was chosen. This
was a relatively small round building – perfect for meetings. On March 23rd, elected officials
were due to meet to discuss and vote on Hitler’s Enabling Law.
As politicians neared the building, they found it surrounded by SS and SA thugs who
tried to ensure that only Nazi or Nationalist politicians got into the building. The vote for this law
was crucial as it gave Hitler a vast amount of power. The law basically stated that any bill only
needed Hitler’s signature and within 24 hours that bill would become law in Germany. With only
Nazis and other right wing politicians inside the Kroll Opera House, the bill was quickly passed
into law. The act gave Hitler what he wanted – dictatorial power. What he wanted would become
law in Germany within 24 hours of his signature being put on paper.

DIFFERENCE BETWEEN RULE OF LAW AND RULE BY LAW

The researcher would elaborate on the difference between ‘rule by law’ and ‘rule of
law’. ‘Rule by law’ simply means rule by any law which is laid down by the supreme law
making authority of that country. One is not concerned about what the law is or what its
purpose is. In most of the dictatorships and monarchies, there is a set of laws through which the
justice is administered. But, in such countries, rule of law does not exist.
On the other hand, ‘rule of law’ connotes rule of law which is based on certain principles of law.
This word is also drawn from a French word ‘spirit delegalize’. What the principles of law will
be is a point of considerable debate. The concept of rule of law was developed by Diceyafter he
observed the development of law in France. At that particular point of time, France had two
system of laws and two system of courts governing the same territory and the same group of
people. One system was known as the Civil Law System. It was the law which was passed by
the Parliament. It governed the relationship between the people inter se.
The second system was ‘droit administratif’ which was a system especially designed by
the government to decide the disputes between the government, government servants and the
people. The law which was applied there was not that which was passed by French Parliament.
It was developed by the highest administrative court on a case to case basis. If there was some
kind of conflict between a common man and the government, the matter went to the
administrative court. It was a part of the administration. The judges were government servants
and they administered the law which was laid down by the highest administrative court. From
this, Dicey was trying to understand how justice is possible. Therefore he said that it is a rule
according to law. It is not a ‘rule of law’ and hence justice is not being done to the people. He
came to the conclusion that in England, there is no administrative law and in England, the
fundamental principles of the British Constitution are two:
1. The Supremacy of the British Parliament
2. Rule of Law
CONCLUSION
The basic concept of rule of law is to control the unlimited exercise of the power by the
supreme law making authority of the country. Rule of law also means certain principles. If in any
society, the law by which the people are ruled is based on both the particular principles, then
only one would say that that particular society is a rule of law society. Otherwise, every other
society is a ‘rule by law’ society.
BIBLIOGRAPHY
BOOKS
 P.P. CRAIG, Administrative Law, Thompson Sweet and Maxwell, South Asian Edition,
5 th Ed., 2003;
 S.P. SATHE, Administrative Law, Lexis Nexis Butterworths, 7 th Ed.;
 M.P. JAIN AND S.P. JAIN, Principles of Administrative Law, Wadhwa Nagpur, 5 th
Ed., 2007;

JOURNALS
 PROFESSOR DICEY, Professor Dicey, Journal of Society of Comparative Legislation,
New Vol. Vol 17. No. ½, Cambridge University Press, 1917;
 SAM KALEN, The transformation of Modern Administrative Law: Changing
Administrations and Environmental Guidance Documents, Regents of University of
California, 2008;
 PROFESSOR DICEY, Conflict of Laws, The Modern law Review, Vol 25, No. 3, May,
1962;
 PROFESSOR DICEY, Speech of Professor Dicey at Liberal Unionist Meeting,
University of Bristol Library;
 RICHARD A EPSTEIN, Why the Modern Administrative Law is inconsistent with Rule
of Law, NYU Journal of Law and Liberty, 2008;
 PILAR DOMINGO, Why Rule of Law Matters for Development, Overseas Development
Institute, May, 2009;