Applicability of Rule of Law in a mixed Economy

The rule of law has a number of different meanings and corollaries. Its primary meaning is that everything must be done according to law. Applied to the powers of Government, this requires that every Government authority which does some act which would otherwise be a wrong (such as taking a man’s land), or which infringes a man’s liberty (as by refusing him planning permission), must be able to justify its action as authorized by law–and in nearly every case this will mean authorized directly or indirectly by Act of Parliament. Every act of governmental power, i.e. every act which affects the legal rights, duties or liberties of any person, must be shown to have a strictly legal pedigree. The affected person may always resort to the Courts of law, and if the legal pedigree is not found to be perfectly in order the Court will invalidate the act, which he can then safely disregard.

The concept of Rule of Law has had an abiding impact on the evolution of Administrative Law in the common-law world. DICEY expounded the concept of Rule of Law in relation to the British Constitutional Law. “Rule of Law”, said DICEY in 1885, means “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.”3 He claimed that Englishmen were ruled by law and law alone; that no man was punishable merely by government’s own fiat; he could be punished only for a distinct breach of law established in an ordinary legal manner before ordinary courts. DICEY denied that in England the government was based on exercise by persons in authority of wide, arbitrary or discretionary powers. While in many countries the executive exercised wide discretionary powers and authority, it was not so in England. DICEY asserted that “wherever there is discretion there is room for arbitrariness” which led to insecurity of legal freedom of the citizens.

Another significance which DICEY attributed to the concept of Rule of Law was “equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts.” In England, he maintained, no man was above law; every person whatever be his rank or condition, was subject to ordinary law and amenable to the jurisdiction of the ordinary courts.

DICEY vehemently criticised the system of droit administratif prevailing in France. Under that system, there were separate administrative tribunals for deciding cases between the government and the citizens, and the officials, in their official capacity, were protected from the ordinary law of the land and from the jurisdiction of the ordinary courts, and were subject to official law administered by official bodies.

DICEY characterised the French system as despotic and one designed to protect the guilty administrative officials. He went on to assert that in England there was nothing really corresponding to the “administrative law” or the “administrative tribunals” of France. The idea of having separate bodies to deal with disputes in which government is concerned, and keeping such matters out of purview of the common courts, asserted DICEY, was “utterly unknown to the law of England, and indeed is fundamentally inconsistent with our traditions and customs.”

This thesis of DICEY has had a tremendous impact on the growth of Administrative Law in England where people were not ready till very recently to accept that anything like the Administrative Law had come into being there. But DICEY’S thesis has been criticised by many from many angles. It has been said that even in 1885, DICEY’S postulates were not fully operative in England. DICEY was factually wrong in his analysis of the position in England as he ignored the privileges and immunities enjoyed by the Crown (and thus the whole government) under the cover of the constitutional maxim that the king can do no wrong. DICEY also ignored the many statutes which conferred discretionary powers on the executive which could not be called into question in ordinary courts. He also ignored the growth of administrative tribunals, quite a few of which had come into existence by 1885. Also, he misunderstood and miscomprehended the real nature of the French Droit Administratif.

DICEY’S view that droit administratif was devised to give protection to, and confer privileges and arbitrary powers on, government officials and, therefore, it was inferior to the British system of ordinary courts deciding disputes between the citizen and the state,7 has also proved to be wrong and irrational in course of time. The truth is that in many respects, Droit Administratif has been found to be more effective in controlling the Administration and protecting the individual against it than the common-law system. After a careful study of the French system, many scholars have concluded that there the executive is controlled much more effectively than in England, and that a better safeguard against administrative excesses can be found by adopting some kind of an administrative court on the lines of the French model. The real test of a legal system is not whether courts decide all controversies or not, but whether it effectively controls administrative powers and whether it provides an effective redressal mechanism to the individual in case he feels aggrieved by administrative action. From this point of view, Droit Administratif has been found in some respects to stand on a higher footing than the common-law system of Administrative Law.

DICEY was wrong in asserting that England had no Administrative Law. It is interesting to note that while DICEY was denying the existence of Administrative Law in England, his more perceptive contemporary, Maitland, was already emphasizing at that very time that Administrative Law had emerged in England. However, by 1915, after the famous Rice and Arlidge cases, DICEY himself came to admit, though reluctantly, that Administrative Law was growing in England as well. He noted that since the beginning of the 12th century, a large number of duties had been imposed on government through parliamentary legislation which led to acquisition of powers, including judicial and quasi-judicial powers, by the government.

Author: Ashvath Neelakandan,
Fourth Year Law Student at Chettinad School of Law

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