RULE OF LAW

The rule of law shares the same characteristics as the principle of separation of powers in that it
is a device designated to guarantee society against the abuse of power. De Smith has said, “The
concept has an interesting characteristic. Everyone who tries to define it starts with the
assumption that it is a good thing like justice or courage.”

Phillips and Jackson have expressed the following caution, “The rule of law is an ambiguous
expression and may mean different things for different writers. Only when it is clear in what
sense the phrase is being used is there any value in asking whether the rule of law exists in a
particular system.”

The concept is one of open texture and lands itself to an extremely wide range of interpretations.
The rule of law concept is intricately linked to the British scholar A.B Dicey who has become an
invariable starting point to a discussion of the concept. According to Dicey, the rule of law meant
3 things

1. The absolute supremacy of law as opposed to the influence of arbitrary power – no

person is punishable except for a distinct breach of the law established in an ordinary
manner by the jurisdiction of the courts. Dicey did not define arbitrary power and seemed
to attack every form of discretionary power. Discretionary power is inevitable in any
system of government and what appear to be important are the limits of that discretion.

2. Equality before the law – no person is above the law and everybody is subject to the
ordinary law and jurisdiction of the courts. On this aspect Dicey stressed the equal
subjection of all persons to ordinary law. Many modern constitutions enshrine an equal
protection clause. At the time of Dicey’s contribution, the French system subjected public
affairs to a different separate administrative system of courts. Dicey wanted to emphasize
the superiority of the English system which had the same law for all persons

3. Judge-made constitution – rights of individuals are protected by ordinary courts and not
guarantees contained in a written constitution. In other words, it is a result of the ordinary
law of the land. Here Dicey was drawing a comparison between the British system and all
other systems which protected individual rights through an extensive bill of rights but
lacked effective mechanisms for enforcement. He believed that the British system was
better in that common law gave better protection to the individual citizen than a written
constitution – this can no longer be seriously sustained.

These 3 aspects of the Dicean approach have been subject to intense discussion over a long
period. The Dicean concept of the rule of law is the traditional understanding of the concept. For
students of British Constitutional law, the rule of law is Dicey’s doctrine of rule of law.
For us, Dicey may be a relevant starting point. Many understandings of the rule of law have been
developed and put forward. Some even go further to dismiss Dicey. De Smith says, “Dicey saw
the rule of law as a central feature of the British Constitution. He had his own idiosyncratic
ideas of what rule of law applies. His ideas, rooted in whiggish libertarianism, were very
influential for two generations, today they no longer warrant any detailed analysis.”

Be that as it may, most formulations of the concept of the rule of law have proceeded from the
underpinnings of the Dicean concept. The following are some of the approaches.

Wade and Phillip (1970)

They say that the rule of law means that the exercise of government powers shall be conditioned
by law and that the subject shall not be exposed to the arbitrary will of the ruler. This implies to
them,

a. There should be no arbitrary exercise of power.

b. There should be effective control over delegated legislation.

c. There should be an independent judiciary.

d. There should be equality before the law in the sense that both private and public officials
should be subjected to the ordinary law.

e. Fundamental individual rights should be safeguarded by the ordinary law of the land.

Matthews (1964)

He restated Dicey’s concept as follows

I. In a decent society the idea that the state should wield arbitrary power over the individual
is unthinkable.

II. All persons including government officials are equally responsible to the law.

III. Effective judicial remedies afford the individual greater protection than constitutional
declarations.

De Smith and Brazier (1998)

The concept of the rule of law implies two things,

a) The power exercised by politicians and officials must have a legitimate foundation – they
must be based on authority conferred by the law.
 b) The law itself should conform to certain minimum standards of justice both substantive
and procedural, e.g. the law must be certain, like cases must be treated alike, there must
be a fair hearing before an independent tribunal, etc.

International Commission of Jurists (1959)

This is the 1959 declaration of New Delhi. Lawyers from 53 countries issued a declaration at the
end of their conference and said that the rule of law concept should be employed to safeguard
and advance the political, civil, social and economic rights of individuals in a free society. There
can be no rule of law without political independence. They took the rule of law to imply,

a) A right to representative and responsible government, meaning a right to free and fair
elections and the principle of one person, one vote.

b) Certain minimum standards of principles such as freedom of association, assembly,

expression, presumption of innocence, freedom of conscience and independence of
judiciary.

c) Social and economic conditions under which individuals may realize his/her legitimate
aspirations – “land reform”

This approach was criticized by Raz as “A pervasion of the doctrine” (See Joseph Raz 1977
Law Quarterly Review, pg 195)

L. Madhuku “Law, Politics and the Land Reform Process in Zimbabwe”

This article says that the debate on the rule of law leads to the conclusion that there are two
views on the rule of law, namely,

a. The narrow view – that there must be a law in place and the content of that law is
irrelevant. An unjust or oppressive law conforms to this view of the rule of law. It is not
the rule of the good law of just law. This is the formal conception, rule-book concept.

b. The broad view – there are two elements. First there must be a law in place. Secondly the
law must conform to certain minimum standards. Both elements must be satisfied. An
unjust law is contrary to the rule of law. It is the rule of good law. There is a debate about
what these minimum standards are. Certain minimums are beyond debate e.g. separation
of powers, independence of the judiciary, respect for fundamental human rights, social
protection of the weak, etc. This is the substantive conception, value based view.

c. Mugabe view – it is not necessarily based on a theoretical appreciation of the above

debate. But it is the broader view. Similarly, the approach by western governments is also
based on the broad view. The difference lies in the nature of values they promote. Both
fail the test depending on perspective.