By Yudhajeet Sinha
“The rule of law is better than that of any individual.” – Aristotle
The rule of law is the legal principle that law should govern a nation and not arbitrary decisions by individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behavior, including behavior of government officials.[i]
II. INTRINSIC MEANING AND INTERPRETATIONS
According to legal theorists, the rule of law can be defined in three ways-
- Formalist or “thin” definition – This doesn’t necessarily tries to adjudge the validity of a particular law but enlists a certain set of rules that must be followed in order to comply with the rule of law[ii].
- Substantive or “thick” definition – This definition stresses on substantive rights based on, derived from the ‘Rule of Law’[iii].
- Functional definition – This definition tries to contrast “rule of law” with “rule of man”[iv].
The formal definition is more widely prevalent than the substantive definition. The formalists set particular standards which must be obliged by legislators to promulgate laws that try to promote equality and prevent discrimination. They don’t delve into the content of the law.
The substantive definition states that rule of law should intend to protect individual rights and must be based solely upon this. And the functional definition tries to contrast the “rule of law” with the “rule of man”. According to functionalists, lesser is the influence of the discretion of bureaucrats on legislation, greater is the ambit of the rule of law.
But to what extent are these definitions practicable is what requires attention.
III. VIABILITY AND PRACTICALITY OF THE RULE OF LAW
The rule of law establishes certain strictures that are expected to be followed by the members of a state in order to establish uniformity, order and propriety in the state. And violation of these rules by the citizens supposedly disturbs the prevailing balance in the society, thus bringing forth legal action against the offender.
The constitution of a particular nation may consider an action to be illegal and devoid of morality because it’s against the established norms prevailing in that nation. But the same offence might not be considered illegal in a separate nation. There are many such vehemently debatable issues that has turned into a regular part of the discussion in TV shows, newspapers, and also as a part of our day to day discussions. Some examples are prostitution, capital punishment, euthanasia and same sex marriage.
Prostitution, the trade of engaging in sexual practices for payment, is considered to be illegal in many countries (especially the Middle East and other Muslim countries), some countries are silent on its legal status (Norway, Sweden, India) and its considered to be a profession in likes of Germany and Netherlands. Its considered to be illegal on basis of moral grounds. It is seen as violence against women and is surmised to be a result of the existing patriarchal society. While others argue that this should be treated as a profession because sometimes it’s the only form of livelihood for a woman, who has been compelled to join the trade because of unavoidable circumstances.
Capital Punishment has turned out to be an important topic of discussion in legal spheres of almost every nation. Almost 60% of countries in the world allow execution to take place. It is seen as a tool to deter people from committing heinous crimes. Whereas is many countries capital punishment is seen to be as crime against humanity. In fact, to be a member of the European Union, a nation has to abolish award of death penalty.
Euthanasia or the intentional ending of life to emancipate someone from excruciating pain and suffering has recently been legalised in countries like Netherlands and Belgium. This has been done on human grounds, to relieve a person from his agony. But on the very same ground, its seen as cruelty to end someone’s life, and thus, it is still illegal in most of the nations of the world.
Generally, the idea of having different laws by different countries is respected by most of the people because every country is believed to have a different culture, society, beliefs and opinions. And therefore it is essential that a country should have laws in proportion with the cultural, political, economic and social conditions present in the country.
But in this era of globalization and modernisation, cosmopolitanism is an upsurge in almost every nation in the world. Thus in a country, we can generally see people from different nationalities, races, religions residing together. So shouldn’t there be different laws for different ethnic groups because everyone has their own distinct opinion, personality and their own particular way of life? And if it becomes necessary for a nation to have a particular set of laws followed by everyone, why can’t we have a certain uniform rule of law that determines the legal issues of all the countries?
All the above mentioned observations of the rule of law helps us in comprehending that law has a dynamic structure and can or shouldn’t be stagnated. Laws are formulated based on the contemporary situation that existed in the time when the law was promulgated. But the relevance of a particular law ceases to exist with changing times.
In ancient Greek states, philosophers like Socrates and Plato condemned democracy because they ostracised woman and slaves to become representatives of the people. But living in the 21st century democracy is seen as the epitome of governance. Divine right of the king or the establishment of Christendom in medieval times to create unity was no longer prevalent when renaissance and industrial revolution arrived. New rules of law were required to be formulated in order to tackle the new problems that were brought forth by industrialisation and urbanisation.
So the rule of law, instead of being static must commensurate with the present needs of the society and should abandon discrimination and prevent the state from indulging in atrocities in the disguise of morality, law and order.
Legality, which is strictly based on the discretion of the state, needn’t be essentially moral. The law established by a state for its citizens to follow must abide by humanity and the circumstantial necessities. Law must take punitive measures to obliterate any orthodox religious and social practices which tend to cripple the society. And neither should the law allow any vulgarity to creep into the lives of the citizens in the name of modernism. And issues like same sex marriage, euthanasia, prostitution and capital punishment must be addressed in a way that no individual or a particular group’s freedom and rights are violated and nor should their legalisation be misused.
Laws must succeed to establish a ‘State of Reason’ and not a ‘State of License’.
Formatted on 16th February 2019.