Rule of Law and Modern Administrative Law
IIT Law School, IIT Kharagpur
November 12, 2010
Introduction: Rule of law is classical principle of administrative law. As a matter of fact this principle was one of the principles that acted as impediment development of Administrative Law principles. The irony further is that the rule of law is now an important part of modern Administrative Law. Whereas the rule of law is still the one of the very important principles regulating in common law countries and common law derived countries modern laws has denied some of the important parts of rule of law as proposed by Dicey at the start of 19th Century.
Dicey Rule of Law: The concept of rule of law backs to the time of Aristotle. Aristotle ruled out the concept of rule under discretion by all means and tried to convey his followers that given the choice it is always rule of law that scores over rule of discretion.
In Modern times the rule of law was propounded by the Albert Dicey, a British jurist and Philosopher. He gave following three postulates of rule of law: 1. Everyone is equal before the law. 2. Sanctions have to be backed by law. 3. Courts are the ultimate body and supremacy of court is ambivalent in civilized society.
He was firm proponent of the concept and very influential thinker of his times.
Though the first two principles are still in almost every legal system of world, the third principle was protested many of jurists of that time. The Dicey in particular opposed the principle of French system of Droit Administratif. England at that time was in fact propounding some quasi legislative and quasi judicial processes which were taken cognizance of English thinkers of that time; still the whole common law system of country was blindfolded with the Dicey's philosophy of “rule of law.”
Dicey's Rule of Law and Modern Administrative Law: Dicey's view and proposition of rule of law has succeeded in part and wasn’t sustainable on other. Most of the modern legal system implements the principles of judicial review and similar principles of proportionality and legitimate expectations. Dicey's views on written and unwritten constitutions are subject to much debate and discussion.
What can be said is that some written constitutions (e.g. the U.S. Constitution) have been quite successful at providing a framework within which individual rights are protected while others (e.g. some of the Soviet blocks constitutions) have been near total failures.
The modern administrative law is fine mixture of Droit Administratif, the French law system and Dicey rule of law. The sophisticated combination of the two principles has given rise to powerful and vast body of executive. In fact the development of modern Administrative law is consequence of development of administration and its side effects.
Objective of Paper: In this paper I am going to critically examine the pros and cons of modern administrative law in terms of balance of efficiency and bureaucracy. This paper shall also discuss the constitutional provisions all over the world and compare the implementation part of it in governance.
Number of Pages in PDF File: 20
Keywords: Dicey, Rule of Law, Administrative Law
Date posted: February 15, 2011