The Rule of Law: an Overview

 

The Rule of Law: an Overview


The concept of the rule of law has become a popular mantra in the lexicon of political science and government. It is used to distinguish a government that is guided by laws from one that is dictated by the whims and caprices of the leaders.

This article examines the concept of rule of law, its principles and limitations. The post in addition examines the observance of rule of law in democratic and military or dictatorial governments.

 

The Concept of Rule of Law

The rule of law, also called supremacy of law, is a general legal maxim according to which decisions should be made by applying known principles of laws, without the intervention of discretion in their application.  The intent is to guard against tyranny and arbitrary governance.

Generally speaking, the law is a body of rules prescribed by the state subject to sanctions or consequences. The predominant view is that the concept of "rule of law" per se says nothing about the "justness" of the laws themselves, but simply how the legal system operates.

As a consequence of this, a very undemocratic nation or one without respect for human rights can exist with a rule of law – a situation which may be occurring in several modern dictatorships. The classical definition of the concept of rule of law was given by A.V. Dicey.

Rule of law means: “the absolute supremacy of regular law as opposed to the influence of arbitrary power, and exclude the existence of arbitrariness or prerogative or even of wide discretionary authority on the part of the government”.

This definition means that the rule of law is a principle that seeks to curb government powers by insisting that governance should be in accordance with the laws of the land and not according to the arbitrary rule of officeholders.

It also implies that no man can be punished except for a proven breach of law. The other major element of the rule of law is the equality of all classes of people before the law as administered by the ordinary courts.

At present, the concept of rule of law has been expanded beyond the classic formulation provided by Dicey.

The doctrine is now recognized to include:

i. The supremacy of the law including judicial authority over all persons and authority in a state.

ii. The supremacy of the constitution.

iii. The independence of the judiciary.

iv. The right to personal liberty.

v. Observance of democratic practices including the conduct of regular, free.

vi. Fair elections as a basis for assuming political power.

In short, the rule of law stipulates that government is instituted and limited to its power according to the extant laws, and should be devoted to the preservation of the liberties of individual citizens, all of whom are deemed to be equal before the law.

By guaranteeing civil rights, the rule of law also creates the basic conditions in which individuals can pursue their own personal development as they choose.

The fundamental human rights of the citizens are defined and enforced by the law of the land. One of the main purposes of the rule of law is to ensure that the civil liberties of the citizens are safeguarded from the arbitrary interference of those in authority.

 

Rule of Law and Democracy

The rule of law is better realized under democracy than a dictatorship. Democratic governance is based on the will of the people and in the form of governance best suited to allow all people to live in dignity and freedom. Democracy requires a “rule of law” framework to govern the interaction and co-existence of all citizens.

The doctrine of rule of law is intimately bound with the practice of democracy. There can be no democracy without the rule of law and vice versa. The rule of law may be a necessary condition for democracy but it is not a sufficient condition.

For much of human history, rulers and laws were synonymous the law was simply the will of the ruler. A first step away from such tyranny was the notion of rule by law, including the notion that even a ruler is under the law and should rule by virtue of legal means.

Although no society or government system is problem-free, rule of law protects fundamental political, social, and economic rights of the citizens.

The basic thrust of the three branches of government is the search for justice through the law. Justice is the end, the terminus adquem towards which all the laws passed by the legislator, all the executive function of government, and the administration of law in our courts, naturally end.

It is to be emphasized that any power given to the judiciary is not for the gratification of the judge but rather to enable him more effectively administer justice, to enable him to protect innocent citizens from power and its abuse by the various concentrations of power.

Protection from power is thus the necessary roles of the courts and the citizens’ last line of defense in their unequal combat with power. The independence of the judiciary is thus the citizens’ bulwark against oppression, their charter of liberties and a force for stability, peace and progress in the society.

 

Limitations of Rule of Law

Although in a democracy, all men are equal before the law, in reality; these precepts are usually observed in the breach. In totalitarian states, there is no pretense about rule of law, because, in those states, the law and the courts are regarded as instruments of state policy.

In other words, the law exists to foster and advance the interests of the strong to the detriment of the weak. Thus, violation of laws or denial of rights for political ends is an attribute of both developed and emerging democracies.

The only difference is that while the abuse and violations are gross in the emerging democracies, in the developed democracies, there are subtle ways to dress up or mitigate these denials, where they cannot be avoided. The principle of equality before the law therefore has some limitations.

The modern state maintains vast paraphernalia for the prosecution of alleged offenders, there is no such organization for their adequate defense. Worse still, the Legal Aid Council of Nigeria that is supposed to come to the assistance of the poor does not enjoy the required support from the government to enable it to discharge its functions effectively.

More fundamentally, the enjoyment of human rights such as rights to life, freedoms of expression, among others is not absolute. They can be denied, suspended or abridged if the need arises. For instance:

Right to Life

The government can deny or deprive a citizen right to life under the following conditions: For the defense of any person from unlawful violence or for the defense of property to effect an arrest or to prevent the escape of a person lawfully detained and to suppress a riot.

 

Conclusion  on the Rule of Law: an Overview

Organs of government control the affairs and activities of one another to ensure that government functions are properly performed. The operations of checks and balances are meant to ensure accountability and good governance.

This is not to say that the mechanism does not have inherent limitations, such as creating delays, power tussles, among others. Nonetheless, it remains a very important means of checkmating abuses, arbitrariness, rashness, arrogance and recklessness associated with the legislative, executive and judicial organs of government.

In this article, we have seen that applying the principles of laws, without the intervention of discretion, is a necessary precondition to guard against tyranny and arbitrary governance.

We also noted that though in a democracy, the rule of law is required to govern the interaction and coexistence of all citizens, particularly the preservation of their inalienable rights, the enjoyment of such rights is not absolute.

They can be denied, suspended or abridged by the government on certain conditions.

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