The test is that all actions of government can be appealed against in the ordinary law courts. This remains the general rule, though in recent years there have been encroachments upon it and they have excited some alarm.
The “rule of law” is the product of centuries of struggle of the people for the recognition of their inherent rights. In Britain the Constitution does not confer specific rights on the citizens. Nor is there any Parliamentary Act which lays down the Fundamental Rights.
Yet, the people enjoy maximum liberty and judiciary is their unfailing guardian, because there exists “the rule of law.” The government has power only to carry out the law, not to do whatever they think fit.
The Latin tag salus populi suprema lex—the welfare of the people is the supreme law—cannot be used by the government as an excuse for pursuing its own idea of the public interest without regard to legality. Anything done by government officials either beyond law or in excess of law is subject to control by courts.
The ordinary law of the land is of universal application and there are no divisions of separate systems of law, for instance, one for officials and another for ordinary citizens.
The maxim carries with it the rule that the remedies of the ordinary law will be sufficient for the effective protection of the rights of the citizens. Rule of Law, in brief, ensures liberty and security to all individuals alike and is, therefore, antithetic to arbitrariness and discrimination of any kind.
It accepts all men as alike before law and the same law is applicable to all irrespective of their station in life. Rule of Law is really the essence of democracy. Democary subsists where Rule of Law prevails.
The conception of the “rule of law” was given classical formulation about a century ago by A.V. Dicey The “rule of law”, according to Dicey, has three meanings:
1. “It means, in the first place, 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 of wide discretionary authority on the part of government.
Englishmen are ruled by the law and by the law alone; a man may, with us, be punished for a breach of the law, but he can be punished for nothing else.”
It means that the executive has no arbitrary powers over the individual; no powers that had not been sanctioned either by Parliament or by the Common Law. It is the paramountcy of law and its sanction is the consent of the people.
This principle implies that no person may be arbitrarily deprived of life, liberty, or property; no one may be arrested or detained except for a definite breach of law which must be proved in a duly constituted court of law.
Trial must be held in an open court with a free access to the public. The accused person has the right of being represented and defended by a counsel and in all serious criminal cases he should be tried by a jury.
Judgment is rendered in an open court with a right to appeal to High Court. The presence of these rights reduces to the minimum the possibilities of executive arbitrariness and oppression.
2. “It means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts.” It means that everyone is subject to the ordinary law of the realm and can have his rights determined in the ordinary courts.
There are two implications in it. First, equality of every citizen, irrespective of his official or social status, before law. Secondly, there is one kind of law to which all citizens are amenable.
All public officials, high or low, are under the same responsibility for every act done by them. If public officials do any wrong to an individual or exceed the power vested in them by law, they can be sued in the ordinary courts and tried in the ordinary manner, and are subject to the provisions of ordinary law. The equality of all in the eyes of law minimises the tyranny and irresponsibility of the executive.
Dicey, while elaborating the equality of all before the law says, “With us every official, from the Prime Minister to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.”
The general legal theory holds that an executive official is privately liable whenever he oversteps the precise authority which the law assigns him.
3. “The ‘rule of law’, lastly, may be used as a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of the constitutional code, are not the sources, but the consequences of the rights of individuals, as defined and enforced by the courts.
It means the main principles of the constitution, such as the right of personal liberty or of public meeting, have been set up on the foundation of the old common law and not as thing derived from any general constitutional theory.” Rights in Britain do not flow from the constitution, but from judicial decisions, as in the famous Wilkes’ case.