Abstract

This paper explores the comparative analysis between A.V. Dicey’s classical concept of the rule of
law and contemporary interpretations of the rule of law in modern governance. Dicey's model,
which emerged in the late 19th century, emphasized the supremacy of law, equality before the law,
and the protection of individual rights against arbitrary power. He articulated that the rule of law
must ensure that no one is above the law, thereby establishing a framework for legal accountability.
In contrast, modern concepts of the rule of law incorporate broader dimensions, including human
rights, social justice, and the role of institutions in upholding legal norms. This paper investigates
how the evolution of the rule of law reflects societal changes, particularly in the context of
constitutional democracy, global governance, and the challenges posed by authoritarianism. It
underscores that while Dicey’s principles remain foundational, the discourse on the rule of law must
adapt to encompass the complexities of contemporary legal systems, ensuring that justice, fairness,
and accountability are integral components. Through this comparative analysis, the paper aims to
elucidate the relevance of Dicey’s principles in modern legal discourse while advocating for a
nuanced understanding of the rule of law that resonates with current global realities.

Introduction
The rule of law is a foundational principle in democratic societies, governing the relationships
between individuals, institutions, and the state. A.V. Dicey, a pivotal figure in legal theory during
the late 19th century, introduced a classical interpretation of the rule of law that has profoundly
influenced Western legal thought. Dicey asserted that the rule of law embodies three core tenets: the
supremacy of law, equality before the law, and the protection of individual rights against arbitrary
authority. His framework aimed to prevent tyranny and promote justice, asserting that law should
govern a nation, not the whims of individual leaders.

In contrast, the modern conception of the rule of law has evolved to encompass a broader range of
considerations, reflecting changes in societal values and governance structures. Today, the rule of
law is understood not only as a means of ensuring legal accountability but also as a crucial
mechanism for upholding human rights, promoting social justice, and ensuring that legal
frameworks foster genuine participatory democracy. Modern interpretations consider contextual
factors such as the roles of political institutions, the judiciary, and civil society in maintaining a
robust rule of law.

This paper seeks to compare Dicey’s classical concept of the rule of law with contemporary
interpretations, examining both the enduring relevance of his principles and their limitations in
addressing current challenges. By analyzing the evolution of the rule of law, the discussion will
highlight how contemporary society demands a more dynamic and inclusive understanding that can
adapt to the complexities of globalization, technological advancements, and the rise of authoritarian
regimes. Ultimately, this comparison aims to underscore the necessity of balancing foundational
legal principles with the evolving demands of justice and governance in the modern world.

Literature Review

The concept of the rule of law has been the subject of extensive scholarly investigation, particularly
in the context of A.V. Dicey's foundational work in the late 19th century and its evolution into
contemporary legal thought. This literature review critically examines key theories, interpretations,
and debates surrounding Dicey’s concept of the rule of law, juxtaposed with modern perspectives
that reflect the complexities of today’s legal and political landscapes.

**1. Dicey’s Conceptual Framework**

A.V. Dicey's seminal text, *Introduction to the Study of the Law of the Constitution* (1885),
remains a cornerstone in the study of the rule of law. Scholars such as Edward R. Edwards and
J.A.G. Griffith have analyzed Dicey’s assertion that the rule of law is characterized by the
supremacy of law, equality before the law, and the protection of individual rights. Edwards
highlights that Dicey’s concept emerged in a context where the arbitrary exercise of power was a
pressing concern, thus providing a robust defense against tyranny. Furthermore, Griffith emphasizes
that Dicey's focus on legal accountability serves to reinforce democratic governance by limiting
governmental powers.

**2. Modern Interpretations of the Rule of Law**

Contemporary scholars, including Tom Bingham and Jeremy Waldron, have expanded the discourse
on the rule of law, identifying limitations in Dicey’s framework. Bingham’s *The Rule of Law*
(2010) argues that modern interpretations must encompass diversity in legal systems, human rights
considerations, and the role of laws in achieving social equity. Waldron’s work emphasizes the
importance of the rule of law in safeguarding individual rights while adapting to social changes. He
posits that a rigid application of Dicey's principles risks overlooking the necessity for laws to reflect
current societal values and norms.

**3. The Role of Institutions and Human Rights**

Recent scholarship critically addresses how modern interpretations of the rule of law intersect with
institutional integrity and human rights. Authors like Mark Tushnet and Richard Bellamy argue that
the effectiveness of the rule of law hinges not only on legal doctrine but also on the resilience of
political institutions and civil society. Tushnet highlights the importance of constitutional
frameworks that prioritize human rights, arguing that the rule of law should function as a vehicle for
social justice rather than merely a mechanism for legal compliance. Bellamy furthers this argument
by suggesting that the rule of law must evolve to confront issues such as inequality and
discrimination, which were less pronounced in Dicey’s time.

**4. Global Perspectives and Emergent Challenges**

The globalization of law has introduced additional complexities to the rule of law discourse.
Scholars like Susan Marks and Anne Orford examine how international legal frameworks challenge
traditional understandings derived from Dicey. They argue that in a globalized world, the rule of
law must adapt to encompass transnational legal structures, human rights treaties, and the impact of
global governance on domestic legal norms. Additionally, the resurgence of authoritarianism poses
significant challenges, prompting scholars like Kim Lane Scheppele to argue for a reexamination of
rule of law principles to effectively counteract erosions of democratic governance.

Origin of Rule of Law

 • The origins of the Rule of Law theory can be traced back to the Ancient Romans during the
formation of the first republic; it has since been championed by several medieval thinkers in Europe
such as Hobbs, Locke and Rousseau through the social contract theory.

• Indian philosophers such as Chanakya have also espoused the rule of law theory in their own way,
by maintain that the King should be governed by the word of law. The concept of Rule of Law is
that the state is governed, not by the ruler or the nominated representatives of the people but by the
law.

• The expression 'Rule of Law' has been derived from the French phrase 'la principle de legalite',
i.e. a Government based on the principles of law.

De nition of Rule of Law

• According to Edward Coke, "Rule of Law

means:

• Absence of arbitrary power on the part of the Government.

• No man is punishable or can be made to suffer in body or good except for a distinct
breach of law established in the ordinary legal manner before the ordinary courts of the
land.

Definition of Rule of Law (Contd.)

As per Prof. A.V.Dicey, "the rule of law means the absolute supremacy or predominance
of the regular law as opposed to the influence of arbitrary power and excludes the
existence of arbitrariness or even of wide discretionary authority on the part of the
government." (The Law of the Constitution)

Dicey regarded rule of law as the bedrock of the British Legal System: 'this doctrine is
accepted in the constitutions of U.S.A. and India.

Dicey concept

Dicey is one of the well known jurists of England and he has written a famous book “Law of the
Constitution”. One should know the difference between administrative law and the rule of law.
People who are in government job have different law from ordinary citizens and the rule of law is
equal for everyone whether he is Prime minister of India or a normal clerk working in an office. The
same law will be applicable to both of them, no discrimination will be done under the rule of law
and rule of law is supreme in nature.

Dicey was against making different rules for a different class of people so he stood by against this
concept and promoted the idea of Rule of law. Here a term is used “Droit administrative” was
introduced by Napoleon and in France, it was known as Droit Administratif. France was having
separate administrative court for dealing with the matter. According to this action by the citizens
against an official for a wrongful act committed in their official capacity will be dealt by the special
fi
court not by the ordinary courts of law. Droit administratif does not consist of rules and law made
by the French parliament but it includes a rule which is developed by the judges of the
administrative court.

The doctrine of Rule of law has 3 meaning in Dicey book.

1. Supremacy of law.

2. Equality before the law.

3. The predominance of a legal spirit.

Merit and Demerits of the Dicey Concept

Merits:

1. Help in making limits to the power of administrative authorities.

2. A major role in growth and recognition of administrative law.

3. Act as a scale for the test of administrative action.

Demerits:

1. His theory was not fully accepted during that era also.

2. Failed to distinguish between discretionary and arbitrary power.

3. He misunderstood the concept of Droit administration which was actually successful in

France.

Development

Rule of law was developed by a British jurist Albert Venn Dicey in his book called “The Law of the
Constitution” 1885. In this book, he develops this concept and he identifies 3 principles while
establishing the rule of law.

According to Albert Venn Dicey rule of law first meaning is “No man is punishable except for a
Distinct breach of Law”established in the ordinary legal manner before the ordinary court. The
government or any high-class authority cannot punish any individual on the personal ground till the
time an individual has committed an offence and if the offence is committed then proper procedure
and trail will be conducted and in case the final verdict is that the offence is committed then
physical or economic punishment will be given to the accused person. This clearly indicates that
even if 100 criminals are not arrested is ok rather than punishing one innocent person.
“No man is above the law” every man, whether he is from a higher rank or whatever his position is
subjected to ordinary law under the jurisdiction of the ordinary court. No man will be derived from
his personal property until the time he has breached any law established by the ordinary court.
Article 14 of The Constitution of India also talk about that “Every Man is equal before the law, no
one is above”.

Constitutional rights are the source of a judicial decision it means that the source of rights is not the
constitution but the rules or law enforcement by the court. The British constitution is the result of
judicial result and all the rights are given under the Constitution is decided and framed from some
or the other judicial decisions.

The principle of Rule of law is accepted by Article 14 of the Constitution and it has 2 main rule that
no man is above the law and no man is punishable except for a breach of law and the last rule given
above is not accepted by our constitution. So, the first and second rule applies to the constitution but
the third rule of dicey is not accepted by our Indian system. All rules passed by the legislature must
be within the provision of the Constitution and if any law is made which encroached any of the
provisions of the constitution then it will be declared as void by the Supreme Court.

Basic Principles of Rule of Law

1. Law is supreme and nobody is above the law.

2. All the things should be done according to a law not as per whim.

3. No person should be suffered except for the breach of law.

4. Absence of arbitrary is the soul of the rule of law.

5. Equality before the law and equal protection of the law.

6. Speedy trial.

7. The fair and just procedure should be conducted.

8. Independent and impartial judiciary.

Kesavananda Bharati vs. the State of Kerala under this case the principle of Basic Structure was
propounded and it was said that any part of the Constitution can be amended without disturbing the
basic structure of it.

Indira Nehru Gandhi vs. Raj Narain, the court held that rule of law is also part of the basic
structure and in the list rule of law was also added and it means that no amendment can be done in
rule of law.
The State of Bihar vs. Sonawati Kumari, it is an integral part of Rule of law that all the authority
within the State including executive government should be bound to obey the rules.

In case of Bachan Singh vs. the State of Punjab, popularly known as “Death Penalty Case” the
rule of law is free from arbitrary action if anywhere any action is done with arbitrary power then it
will be considered as the denial of the concept of Rule of Law.

In case of Som Raj vs. State of Haryana,that absence of arbitrary power is absolute motive of the
principle of rule of law upon which directly the whole Constitution is dependent.

Principles considered by Dicey under the ambit of Rule of Law

Absence of Arbitrary Power – It is to be taken as, no man is above law, and law is supreme
regarding man, there is to be a similar mechanism for every individual, and no person could be
punished on fiat and whimsical wishes of government where there is discretion, on that place
arbitrariness may emerge, discretion gives power and power corrupts, but the application of
Absence of Arbitrary Power, limits unbridled discretionary power of government or statutory
authority, at a time when Dicey was investigating pulse of British Constitution on golden principles,
that he derived, found constitution in accordance of this very rule of “Rule of law”.

The second considered principle by Dicey was Equality before Law, as per this every man will be
equal in eyes of law, and will be treated equally before the law; whosoever he is doesn’t matter on
what designation he is ascribed or what political/social/economic power he enjoys. There is special
mention of this in articles – 14, 15and 16 of the Indian Constitution. In India, there are some
codified exceptions to this rule, as Article – 361 of the Constitution, in which protection is granted
to the President, Governors and Rajpramukhs, indeed this is an exception, but to run, state
machinery smoothly.

The third principle considered is Individual Liberties, principle of British Constitution and
principle of individual liberties in Britain are judge made concept, It is peculiar to Britain, where as
there are large number of other countries, in which individual liberty is not a result of judicial
exercise, it is ensured in fundamental law book of land itself, that following fundamental rights will
not be violated accept, due process of law or procedure established by law, as Constitution of
United States of America, Japan and India, In context of India, life and liberty of individual, is
of paramount importance and constitution protects and preserves and ensures the same, “no person
shall be deprived of his life and personal liberty accept procedure established by law”, what was
concerning Dicey was not, individual liberty is result of Written Constitution or output of judicial
exercise, for him what matters is, is individual liberty recognized, considered, cherished, protected
and preserved, this is why, Dicey while examining USA Constitution, found that in accordance of
his derived principles, rule of law, taking example of value of individual liberty, in recent in case of
Arnab Goswami, “Indian Journalist and Editor in Chief of news network Republic TV”, 2 judges
bench of Hon’ble Apex Court, comprising J. Indira Banerjee and J. D.Y Chandrachud protects
individual liberty of accused Arnab Goswami, by granting interim bail and Justice D.Y
Chandrachud observed that “If we don’t interfere in this case today, we will walk on the path of
destruction”.

Dicey has set three principles, but as society and democracy evolves and evolves continuously,
apart from all settled and traced rules, there are some other existing and later evolved rules/
principles, which is a product of spirit to strengthen, individual liberty as “no arbitrary form of
government”, the government is expected to be democratically elected, which is supposed to be by
the people and for the people, working in accordance and consonance of fundamental law of land,
“Constitution”.

Rule of Law in Modern Sense

The modern concept of the rule of law, as established by the international commission of jurists in
the Delhi Declaration of 1959, is a broad ideal for governments to follow. It emphasizes the
upholding of the dignity of the person and includes committees on individual liberty, government
intervention, and criminal action. These committees emphasize the importance of nondiscrimination
laws, religious freedom, and the judicial system for its emphasizes the importance of. Mayor Kin
Davis identified seven types of modern law; including principles of natural law, settled law, due
process, judicial preference over executive authority, and judicial review of administrative practices.
This definition of the modern rule of law encourages political participation and constructive
criticism of governments.
From the above, it is clear that there has been a constant alteration and modifications in the concept
of Rule of Law to suit the need of the present scenario. According to Prof. Baxi A study of
Keshvananda, Indira Gandhi and other Habeas corpus cases provides a distribution of Indian
Judicial thought on the conception of the rule of law which has evolved well over a quarter century.
The Concept of Rule of Law has been given a new dimension by the liberal interpretation of the
Supreme Court of India. Rule of law today envisages not arbitrary power but controlled power.

The modern concept of the Rule of law of law is now so greatly developed that it provides an ideal
setup for any government to achieve. The concept was developed by the International Commission
of Jurist, known as Delhi Declaration 1959, which was later confirmed at Lagos in 1961. According
to this formulation, the dignity of man as an individual is upheld. It implies that the rule of law
should be so applied as to create conditions in which the dignity of an individual should be given
priority. The dignity of an individual doesn’t include only the recognition of civil and political
rights but also social, economical educational cultural and developmental rights. In Short for the
proper incorporation of the Rule of law, Human Rights mechanism should be ensured. Particularly
in the content of third world countries like India, Human Rights mechanism is utmost necessary.

Moderating the Dicey’s meaning in the present day context Prof. Wade has included, effective
control of and proper publicity for delegated legislation under the concept of Rule of Law,
particularly when it imposes penalties that should as far as practicable be defined; every man should
be responsible to, the ordinary laws whether he be a private citizen are public official, the private
man’s right should be determined by impartial and independent tribunals and fundamental private
rights are safeguards by ordinary laws of England.

According to Davis, there are 7 types of Modern law

1. Law and orders.

2. Principle of Natural law.

3. Fixed rules and regulations.

4. Eliminate the idea discretion.

5. Due and fair process of law.

6. Preferences for judges and court of law to executive authority and administrative tribunals.

7. Judicial review of administrative action.

So, in proper manner rule of the law say that it silent on the democratic system, where the political
interest is encouraged and criticism of the government is not only permitted but given positive
merit.

How Freedom of Speech and Expression is an integral part of the Rule of law

Rule of law is very founding stone of stage of democratic stands that’s why it is considered as an
important and integral part of Rule of Law. To ask for the right of others and the way they are
expressed can be either by speaking, writing, drawing, etc. and above all rule of law does not go
with arbitrariness which can be established by fiving freedom and one of such freedoms is freedom
of Speech and expression.

Now, let’s understand about Freedom of Speech and expression is one of the important fundamental
rights given under the Constitution for every individual to enjoy it fully. Freedom of speech and
expression should be used in a very delicate manner because while expressing the idea, thought it
should not defame or hurt the sentiments of any individual or religion view and without the fear of
getting punished for any offensive act. As per UDHR (Universal Declaration of Human
Resources) every individual has the right to freedom of expression and opinion. The right involves
the right to hold the information without any interference from any media or other sources. Right to
freedom of speech and expression is recognized as an essential human right under Article 19 of the
UDHR as well as in ICCPR (International Covenant on Civil and Political Rights).

Freedom of Speech and Expression in the Indian Constitution

Article 19(1) of the Indian Constitution says the Freedom of Speech and expressionmeans the right
to express one’s ideas by the help of words, gesture, painting, writing etc. or by any other specified
mode. It also includes the publication of articles, books etc. so the freedom of the press is also
included under this category.

1. It also helps individuals to be well informed about the current situation of highlights of
society or nation.

2. Help the individual to the development of ideas, thoughts, opinions etc. which will help in
decision making.

3. Varieties of ideas help in maintaining a balance between stability and social changes.

4. Help in achieving of Self-fulfilment.

In Shivkant Shukla vs. ADM Jabalpur the government of M.P. appealed against the High Court
ruling in the Supreme Court. The problem arises that whether Rule of law aside from Article 21 of
the Constitution of India. There is no rule apart from Article 21 and there can never be separate rule
of law.

Conclusion

Certainly! Here’s a concise conclusion comparing Dicey’s concept of the Rule of Law with the
modern interpretation:

In conclusion, Dicey’s concept of the Rule of Law emphasizes the supremacy of law, individual
rights, and the equality of all before the law, establishing a foundation for legal certainty and
protection from arbitrary power. Conversely, the modern concept of Rule of Law expands this
foundational idea to encompass broader social justice, human rights, and the importance of
institutional integrity. Today, it highlights the role of international norms, democratic governance,
and accountability in ensuring fairness and justice, acknowledging that the Rule of Law must adapt
to contemporary challenges while still being rooted in the principles articulated by Dicey. This
evolution underscores the need for a dynamic interpretation that aligns legal frameworks with
societal values and global standards.It was very clear that the idea of the Rule of law was not totally
perfect. Rule of law has taken charge of administrative powers and understated them with their
measures and this concept was adopted by various countries as a watchdog of the constitution. The
modern concept given by David was a broad concept as well as possible for the government to use
it in a graceful manner and administrative law main task was to fulfil the gap between power and
liberty. The government under the guideline of Rule of law make to rule or conditions that do not
intercept with any individual dignity.

References

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20men.&text=No%20individual%20whether%20if%20he,and%20they%20should%20obey%20it.
2 Dicey, A.V., – “INTRODUCTION TO THE STUDY OF LAW OF THE CONSTITUTION” –
Chapter – 4.

3 Constitution of India, 1950, Article-21,

4 https://www.barandbench.com/news/supreme-court-grants-bail-to-arnab-goswami

5 AIR, 1976 SC 1207

6 1982, 2 SCC 1324

7 (1997) 3 SCC 261.