The Rule of Law

RULE OF LAW The rule of law is defined as ‘the principle that all people and institutions are subject to and accountable to law that is fairly applied and enforced; the principle of government by law.’[1] This is the principle that individuals and government can only act with publicly known law accordingly and those law must be enforced and adopted I a good manner and also consistent with the well established conventions, procedures and traditions. In the Australian Constitution, the rule of law was a foundational principle for the preparation of the Constitution. The concept of ‘rule of law’ was very similar and familiar to the theory of an ancient historical Greek philosopher ‘Aristotle’ who wrote the ‘Law should govern’.[2] The rule of law is ‘the authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behavior; (hence) the principle whereby all members of a society (including that in government) are considered equally subject to publicly disclosed legal codes and processes.’[3] The modern concept of rule of law is given by the British jurist and constitutional theorist ‘Albert Venn"A. V."Dicey’.[4] AV Dicey’s famous conception of the rule of law.The rule of law in general, is seen as encompassing these three features:

1. the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government …

2. equality before the law, or the equal subjection of all classes to the ordinary law of the land by the ordinary Law Courts; the ‘rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of ordinary tribunals …

3. as a formula for expressing the fact that with us the law of the constitution … are not the source but the consequence of the rights and individuals, as defined and enforced by the Courts … thus the constitution is the result of the ordinary law of the land.[5]

In short, the three elements are:

1. Supremacy of law;
2. Equality before the law; and
3. Government by law.

The rule of law is the basic and fundamental concept of justice, implementation of law and interpretation of law. Without rule of law, it is not possible to provide fair justice and equitable treatment in legal system. The rule of law is the authoritative, superior placement of established law. The rule of law entails the promotion of certain concepts and freedoms, to prevent abusive use of power. The rule of law contains numerous elements. The elements state that all laws must be written, feasible, and as clear as possible and must not be contradictory. The laws can have no effect until they have been passed and are thus official and laws must be constant through time, but must allow for revision. The rule of law differs in the specifics, but the aforementioned is what is consistent with all the definitions. The elements need to be balanced appropriately, or unfairness will result. The rule of law in relation to Australia was developed by the Waterloo Creek Massacre in conjunction with the subsequent events; a defined sense of morality was established. ‘Ignorance of law does not excuse’ is the strongest point to established and enforced of rule of law. Some authorities which helped to develop the concept of the rule of law as the mistreatment of law coupled with ignorance, and basic human rights were being gradually recognized and improved. For example, in the cases of R v Kilmeister (No 1)[6] and R v Kilmeister (No 2)[7], the Attorney-General repeatedly stressed the nature of murder and how in this matter ignorantia juris non excusat (ignorance of the law does not excuse). Tempting as it can be to justify such acts, it is still against the law to commit them. Basic principles of Rule of Law: There are four basic principle of rule of law.

1. Government and its officials are accountable under the law.

2. Laws are clear, just, publicized, stable and protect fundamental rights.

3. The process of law is efficient, fair, just and accessible for everyone.

4. Justice is given and delivered timely by ethical, independent and competent authorities or representatives of law governed bodies.

5. The judiciary should be independent.

Essentials of Rule of Law

• There are some main factors and essentials of rule of law which are mention and describe below

• The society must governed by rule of law and officials of government are accountable under the law.

• There must be absence of corruptions.

• There must be a open government which involves engagement, access, participation involvement and collaboration between government and its citizen.

• Security must provide to all citizen. Security includes personal security as well as security of their property.

• Every person should be able to easy access to courts for resolve their grievances and obtain remedy in a peaceful and effective manner

Main characteristics of the Rule of law

1. Universality of the scope of the law

The first principle of the rule of law is that all citizens come within the scope of the law, no matter what their emiA­nence or authority. Those who make and enforce the law are therefore bound by it. Albert Venn Dicey set out one the best known statements of this principle in 1895: “... every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justificaA­tion as any other citizen…. [Appointed government offiA­cials and politicians, alike] ... and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial perA­son.” [8] Martin Krygier, international authority on the rule of law, argues that there is a political and social dimension to the principle. The political element is that governments and public officials must comply with the existing law while it is in force. Furthermore, there must be effective ways of forcing governments and officials to submit to the law. If these conditions are not met then a crucial aspect of the rule of law is missing.[9] The social dimension is equality for all citizens before the law. Traditionally this has been assumed to mean that the law should apply to all regardless of inequalities of wealth or status.[10]

2. Clarity for all citizens

A second principle is that the law should be expressed in such a way that people can be guided by it. To achieve this goal a number of conditions must be met. The laws must be clear and understandable. The body of law cannot be contradictory. Laws should apply to future action (be proA­spective) rather than apply to actions which have already occurred (be retrospective). Unless this is so, people will be unaware of their legal position and will be in constant fear of unknowingly breaking some future law. The body of law should be relatively stable because if laws are being conA­stantly changed, people will not trust them. Laws must be taken seriously and enforced.

3. Supportive institutional arrangements and legal culture

There need to be appropriate institutions to support the rule of law. These institutional arrangements are too varA­ied and rich to be based on one model only. Nevertheless there are four central ideas supporting the principles of the rule of law that have been widely adopted. The first is that those who decide whether specific actions are legal or illeA­gal should not be the same as those who have the power of decision-making in governments. Second, courts should not only be independent, but also protected from interferA­ence. Third, traditions and conventions matter to ensure that legal decisions are based on reasonable interpretaA­tions of existing laws. Finally, there need to be measures to ensure that those who appear in the courts are given a fair hearing. There needs to be a culture of law that is widely valued and shared among lawyers. There also needs to be broad agreement within the society that laws really matter. In many English-speaking cultures there is also a rich tradition of common law, the body of law built up over long periods of time through the constant refinement of legal precedents by outstanding legal minds. Common law is not a necessary condition of the rule of law. It is, nonetheA­less, an example of the importance of legal culture Importance of the rule of law. Why it is important? There is no perfect application of the rule of law. All the subversions of the principles of the rule of law described above can occur. The abuses are, however, much less likely to happen when a rule of law culture is strong. When considering the significance of the rule of law, Martin KryA­gier argues that we need to ask three key questions. The first is: “What we are trying to achieve?” This quesA­tion, he says, is best answered by contrasting the rule of law with its alternative, the arbitrary exercise of power. This is the evil that the rule of law is trying to curb. The second question is: What are the main reasons for wishing to curb the arbitrary exercise of power? One widely agreed reason is to prevent or reduce the fear of harm and oppression. We rely upon the law to protect us from harm from other individuals or groups in our society. To do this effectively there have to be widely accepted rules of behaviour and sanctions for those who fail to observe those rules. We also need protection from the arbitrary actions of the state itself. This is best achieved by requiring governments to operate under laws that conform to the character of the rule of law. The third question is: How do we best encourage beneficial interactions among citizens? There is need for ‘legitimate expectations’ between citizens without which their relaA­tionships will be uncertain and at times dangerous. PreA­dictability is one need and security another. Clarity about the rules affecting relationships between citizens is a third. In this way citizens are made aware of their rights and responsibilities vis-A -vis each other.[11] [12] Criticism on Rule of Law: There is most strong one criticism on rule of law is that, which it is fail to deal with the supremacy of the law making body which is Parliament. If the parliament make a law which is in a way of it or which create contradiction to the rule of law. But it is still the law and there is nothing that the courts can do about it. Conclusion: In my point of view, the rule of have over the course of Australian history together formed our concept of justice. Overall, the rule of law is considered to be one of the fundamental doctrines of the constitution of the Australia. Constitutions are concerned with the allocation of power and the control of its exercise. “Government of laws and not of men” this was said by Aristotle way back in Ancient Greece. Without the doctrine of ‘the rule of law’ our government would be undemocratic and would be deemed ‘the rule of men’ in which certain members were exempt from the law and would not be equitable. In my conclusion, the rule of law refers to two elements. First, government powers should be checked and secondly law and order should maintain all the time. In other words, all power and action of the government must be legal and authorized by the law and action of the government must within the prescribed legal area. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - -

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Bibliography Internet: ‘Rule Of Law’ The Free Dictionary, https://legal-dictionary.thefreedictionary.com ‘Rule Of Law’ WikiPedia, https://wikipedia.com ‘Legal Obligation and Authority’, Stamford Encyclopedia of Philosophy, Stamford Encyclopedia of Authority, <https://plato.stanford.edu/entries/legal-obligation ‘Rule of law’ Law council of Australia <https://www.lawcouncil.asn.au/lawcouncil/index.php/divisions/international-division/rule-of-law>

 

The Rule of Law Institute’s Principles , rule f law institute of Australia <https://www.ruleoflaw.org.au/principles/>

 

‘What is rule of law?’ world justice project < https://worldjusticeproject.org/what-rule-law>

‘Rule of Law’ https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1328&context=bjil Cooray, M. The Australian Achievement: From Bondage to Freedom, https://www.ourcivilisation.com/cooray/btof/index18.htm A discussion of principles of the rule of law in an AustralA­ian liberal context. Li, B. (2000). “What is Rule of law?” Perspectives, vol. 1(5),https://www.oycf.org/Perspectives2/5_043000/what_is_rule_of_law.htmA discussion of the meaning and the ideals of law. United Nations and the Rule of Law https://www.un.org/en/ruleoflaw/index.shtmlA description of the United Nations’ commitment to the principle of the rule of law. Books & Articles: R Fitzgerald and M Hearn, Bligh, Macarthur and the Rum Rebellion, Kangaroo Press, Kenthurst, 1988. R Hughes, The Fatal Shore, Harvil Press, London, 1987. Australian Law Dictionary (Oxford University Press, 2nd ed, 2013). D C Pearce and R S Geddes, Statutory Interpretation In Australia, (LexisNexis Butterworths, 7th ed, 2011). Michelle Sanson et al, Connecting With Law (Oxford University Press, 2nd ed, 2013). Adjami, Mirna, “African Courts, International Law, and Comparative Case-Law: Chimera or Emerging Human Rights Jurisprudence.” Michigan Journal of International Law 164(24) (2002): 103-167. Banik, Dan, “Legal Empowerment as a Conceptual and Operation Tool in Poverty Eradication.” Hague Journal on Rule of Law 1 (2009): 117-131. Bergling, Per. Rule of Law on the International Agenda: International Support to Legal and Judicial Reform in International Administration, Transition and Development Co-operation. Intersentia, 2006. Bodanksy, Daniel, “The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?” American Society of International Law 93(3) (1999): 596-624. DvDs: ‘Rule of Law’, MicrosoftA® Encarta PremiumA®, 2009. Microsoft Corporation, 2009.

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[1] https://dictionary.reference.com/browse/rule+of+law [2] ‘Politics’ by Aristotle, translated by William Ellis, Chapter 3 [3] TheOxford English Dictionary [4] Wormuth, Francis.The Origins of Modern Constitutionalism, page 28 (1949) [5] Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan and Co, 8th ed, 1926) 198–9. [6] NSW SC, 15 November 1838. [7] NSW SC, 26 November 1838. [8] (Albert Venn Dicey, Law of the Constitution, LonA­don: MacMillan, 9th ed., 1950, p.194). [9] Clarence Ling, ‘Martin Krygier’s contribution to the rule of law’ vol.4 the Western Australian Jurist 211 [10] Ibid. [11] Martin Krygier, ‘Marxism, Communism, and Narcissism’ (1990) 15 Law and Social Enquiry 709, 730 [12] Martin Krygier, ‘Ethical Positivism and the Liberalism of Fear’ in Tom Campbell and Jeffrey Goldsworthy (ed), Judicial Power, Democracy and Legal Positivism (Dartmouth, 1999) 59, 64.

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