The idea of the rule of law is very old; it has been traced way back to the time of Aristotle (384 – 322 BC), who wrote that it was “better for the law to rule than one of the citizens […] so that even the guardians of the law are obeying the law.”
Judges use the phrase to describe concepts of law but that does not prevent it from being interpreted differently by all and sundry. It is rare to find two persons who have precisely the same view on what the “rule of law” means. And who is to say who is wrong or who is right?
Politicians love to use the phrase, which, in their mouths, usually means, “No matter the judgement, our side won.”
“… the utterance of those magic words,” Professor Jeremy Waldron is quoted as saying when commenting on Bush v Gore) “meant little more than ‘Hooray for our side’.”
Truth be told, the Rule of Law is a paradox, a contradiction both in theory and practice. Let us take a closer look at just what we can glean from those four words.
Everyone “understands” what the phrase means—or thinks (s)he does—yet no one is able to quite pin it down. It is political, yet apolitical, ‘fixed,’ yet constantly in flux. It suggests an absence of tyranny but offers no protection from tyranny. It also suggests a limitation to the possible abuse of power by the State, yet, despite being repeatedly referenced by the courts, it is not legally enforceable; its power, it has to be said, comes from emotive appeal, not from law.
The phrase appears in written instruments of law but remains without a clear definition. It conflicts with the notion of Parliamentary Sovereignty (the idea that Parliament can make or unmake any law) but is really a means of social control without legal rules.
That is a non-exhaustive list. I shall attempt to give a short explanation of what the rule of law is and attempt as well to show what it isn’t. It is my hope that, as we examine some of its strengths and some of its weaknesses, some of the paradoxes above will become clear(er).
Law students first encounter the phrase ‘rule of law’ in connection with Albert Venn (AV) Dicey (1835 – 1922), former professor of law at Oxford University. Dicey was, for many years, considered the foremost ‘authority’ (I use that word with due caution) on the rule of law and popularised the phrase in his book Introduction to the Study of the Law of the Constitution. He suggested that there were three tenets, or principles, present in the rule of law.
The first is that “The State cannot exercise arbitrary power.”
This simple statement is more revealing than it appears. What Dicey envisioned was that the State’s power—and its use of that power—must be controlled by law and the State cannot be allowed unfettered use of its powers. Dicey also thought that rulers of State do not have any wide discretionary powers to create law but must do so within an established framework for creating laws, or by prior established law. In other words, the State cannot arrogate onto itself powers that it does not have—or merely thinks it has.
There is another principle associated with the use of law to limit the State’s power. This asserts that a person cannot be punished by the State for something which is not against the law, or which was not against the law at the time the act took place. In plain words, if an act is not explicitly forbidden, it is permitted and cannot be made a crime retroactively. Also, a person may only be punished for a breach of law proved before an ordinary court.
Principle Number Two is that “There must be equality before the law.”
This may perhaps be a self-evident principle but one which is clear: Everyone, including the State and its agents, is bound by the same laws. In the immortal words of Thomas Fuller, “Be ye ever so high, still the Law is above Thee.”
Number Three is the “Origin of rights.”
In Dicey’s view, rights of the Englishman were derived from judgements coming from the courts whereas, under ‘Continental’ constitutions, rights were, in his view, derived from the principles laid out in those constitutions.
Under the British Constitution, therefore, rights were gradually obtained through judgements in which distinct principles were identified as abuses of power against the common man. Progressive limitation of those excessive powers resulted in identifiable rights.
Entick v Carrington  EWHC J98 (KB) is a fine illustration of several of the principles explained in the preceding paragraphs.
On 11 November, 1762, newly appointed Secretary of State Lord Halifax sent his Chief Messenger, one Nathan Carrington (the defendant), to the home of John Entick (back then called the plaintiff) with a warrant:
“…with force and arms broke and entered the dwelling-house […] and continued there four hours without his consent and against his will, and all that time disturbed him in the peaceable possession thereof, and broke open the doors to the rooms, the locks, iron bars, etc. thereto affixed, and broke open the boxes, chests, drawers, etc. of the plaintiff in his house, and broke the locks thereto affixed, and searched and examined all the rooms, etc., in his dwelling-house, and all the boxes, etc., so broke open, and read over, pried into and examined all the private papers, books, etc. of the plaintiff there found, whereby the secret affairs, etc., of the plaintiff became wrongfully discovered and made public and took and carried away 100 printed charts, 100 printed pamphlets, etc. etc of the plaintiff there found, and other 100 charts etc etc took and carried away, to the damage of the plaintiff 2000l (£2000)”
Arising out of the judgement were the following principles:
(1) A State official cannot appropriate for himself power he does not have.
(2) A State official’s authority must be clearly established in law.
(3) The State is permitted to do only what is expressly (explicitly stated) permitted in law but the individual may do anything except that which is expressly forbidden in law.
(4) “Every invasion of private property, be it ever so minute, is a trespass.” This is also reiteration of the concept that “A man’s home is his castle…”. No one can interfere unlawfully with a person or his property.
(5) The burden of proof is on the trespasser.
Perhaps the best overall interpretation is to say that a person has the right to respect for his private life, home, etc.
Dicey’s view of the rule of law was understandably narrower than today’s perception, which, thanks to several academics such as Raz, Unger, Dworkin, Fuller and Bingham, is more comprehensive than Dicey’s.