Rule of Law in India

“When freedom does not have a purpose, when it does not wish to know anything about the rule of law engraved in the hearts of men and women, when it does not listen to the voice of conscience, it turns against humanity and society.” ~ Pope John Paul II

Introduction and the History of Rule of Law

‘The rule of law’ means literally what it says: the rule of the law[1]. In other words, “people should obey the law and be ruled by it.” The concept of Rule of law is of old origin and is an ancient ideal. It was discussed by ancient Greek philosophers such as Plato and Aristotle around 350 BC. Plato wrote: “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state”. Likewise, Aristotle also endorsed the concept of Rule of law by writing that “law should govern and those in power should be servants of the laws.” 

The phrase ‘Rule of Law’ is derived from the French phrase ‘la principe de legalite’ (the principle of legality) which refers to a government based on principles of law and not of men. Rule of law is one of the basic principles of the Indian constitution as. The entire basis of Administrative Law is the doctrine of the rule of law.[2]

Countries and development policy-makers keen to use positivist yard-sticks to demonstrate economic growth have traditionally advocated a ‘thin’ conception of the rule of law, which emphasizes the formal or instrumental aspects of any legal system, regardless of fundamental rights[3]. Gordon Barron persuasively argues, by forwarding “its vested interests in promoting as formal and technocratic a version of the [rule of law] as possible”. the World Bank has hampered its own efforts to generate sustainable rule of law reform in developing countries: “The need to focus on purely economic legal institutions necessarily imposes on the Bank a very restricted view of the legal system and the [rule of law], and severely limits its ability to “build” the [rule of law]”[4].

Since to understand the law we must understand the way the law understands itself, that is the way its officials and others who accept its legitimacy understand it, we must understand it as it would be understood by people who see it as ethically justified, at least in the sense that it is ethically right to obey it, and therefore we must understand it as if it were so justified[5].

Analysing Joseph Raz’s Doctrine of Rule of Law

In Joseph Raz’s view, a morally sound political order cannot be neutral about which ways of life are good and which are evil: the very point of political action is to encourage pursuit of what is truly worthwhile and discourage pursuit of what is morally unworthy. Joseph Raz sees the Rule of Law as a political ideal ‘which a legal system may lack or may possess to a greater or lesser degree’ and as ‘just one of the virtues which a legal system may possess’. Though he states that the ‘rule of law’ means literally what it says: the rule of the law’, he takes the view that if the content of the political ideal referred to is merely that government action is authorized by law then it is in fact not a political ideal but an empty tautology. There must be more to the Rule of Law ideal, or else the ideal does not evaluate or constrain law in any way. Raz goes out of his way to deny that the principles of the rule of law are necessarily used for morally attractive ends, and are in that sense intrinsically mortal. As Raz has conceded, there may be some question-begging here: one cannot argue that a good concept of law must exclude moral evaluation unless one can show that that the exclusion of moral evaluation is a part of the social practice one is conceptualising[6]. His principles of the rule of law fall into two categories. The first category of principles specifies what character rules must have in order to be law-like rules. For example, laws should be clear, stable, public, and prospective.16 The second category of principles is required to ensure that the machinery of law enforcement itself does not deprive law of its ability to guide behaviour.

Raz argues that the rule of law is an ‘instrumental’ virtue of law that sets out principles that make law better fulfil its function of guiding human behaviour[7].Raz clearly states that the rule of law is of moral value earlier in his essay. In the paragraph that introduces the ‘instru- mental virtue’ argument, Raz expressly reiterates that the rule of law is a moral virtue of law, but that it is ‘not merely a mortal virtue.’ This is because it is also an instrumental virtue. Similarly, in the passage that follows the instrumental virtue discussion Raz observes that: The special status of the rule of law [as a non-moral instrumental virtue of law] does not mean that conformity with it is of no moral importance. Quite apart from the fact that conformity to the rule of law is also a moral virtue, it is a moral requirement when necessary to enable the law to perform useful social function[.] It is hard to see how Raz could have made it clearer that the rule of law is morally valuable as well as instrumentally valuable. Nothing in his instrumental argument suggests otherwise. Raz clearly believes that the rule of law is a moral virtue[8].

He admits that minimal conformity to these principles is necessary for there to be rules, which are necessary for there to be law, but says that such conformity is ‘consistent with gross violations of the rule of law’. It is no virtue of law that it cannot be completely unstable, obscure or retrospective, and that it must – to be law – have some minimal stability, intelligibility, and perspectivity. But this minimal conformity to principles is not conformity to the rule of law, which is a ‘moral virtue… which should but may fail to become a reality’. Law would not exist if minimal conformity with principles failed to be a reality, but law can exist without minimal or substantial conformity with the moral ideal of the rule of law[9]. Raz finds arbitrating authority to be “mediating between people and the right reasons which apply to them, so that the authority judges and pronounces what they ought to do according to right reason.” Authorities “are meant to reflect dependent reasons in situations where they are better placed to do so[10].”


[1] Joseph Raz, ‘The Rule of Law and its Virtue’ in Joseph Raz, The Authority of Law: Essays on Law and Morality (1983) (‘The Rule of Law and its Virtue’) 212.

[2] Plato, Laws, Book IV, 715 d; Complete Works, Cooper,John et al., Hackett Publishing Company Inc., 1997,Indiana, p. 1402. For an account of the origins of the concept of Rule of Law in the ancient world see M. Loughlin, Swords and Scales (2000), chap. 5; B. Tamanaha, On the Rule of Law: History, Politics and Theory (2004), chap. 1

[3] JOSEPH RAZ, The Rule of Law and its Virtue, in THE AUTHORITY OF LAW: Essays on Law & Morality, 210, at 214-216 (1983).

[4] Gordon Barron, The World Bank & Rule of Law Reforms 32 (Dev. Studies Inst. Working Paper No. 05-70, 2005), available at http://www.lse.ac.uk/collections/DESTIN/pdf/WP70.pdf.

[5] Joseph Raz, “Why Interpret” (1996) 9:4 Ratio Juris 349 at 358.

[6] Raz, ‘Legal Positivism and the Sources of Law’ in Joseph Raz, The Authority ofLaw: Essays on Law and Morality (1983) 41-2.

[7] 43 Raz, supra^1, page 224.

[8] Mark Bennett, The Rule of Law Means Literally What It Says: The Rule of the Law: Fuller and Raz on Formal Legality and the Concept of Law, 32 AUSTL. J. LEG. PHIL. 90, 113 (2007).

[9] Id. at 223 ‘It is, of course, true that most of the principles enumerated. . . above cannot be violated altogether by any legal system’.

[10] Morigiwa, Y. (1989). Authority, rationality, and law: Joseph raz and the practice of law. Southern California Law Review, 62(Issues & 4), 897-912.

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