RULE OF LAW AND “THE KING CAN DO NO WRONG”

Abstract

This article discusses the definition and evolution of the notion of the Rule of Law  from Aristotle and Cicero’s time to pre-modern A.V. Dicey’s coinage of this term  and its modern thick explanation. It is analyzed that its practicability in the true  sense is nearly impossible due to the human nature where the lust for power and  domination impedes its materialization and our ability to live by two totally  opposite principles mocks it further. The doctrine of The King Can Do No Wrong is manifestation of this proposition. 

Key words: Equality, Power, Law, Practicability, Implementation, King, Military Establishment

RULE OF LAW AND “THE KING CAN DO NO WRONG”

INTRODUCTION

 It has been a desire of the people and the philosophers throughout the known history  to create a polity which is ideal and where the people can lead a peaceful life to their full  potential. The idea of the “Rule of Law” was hence considered as the best principle to create  an ideal society which can be imagined as the utopian society where all are equal and subject  to the laws of the land. The concept related to this idea was never the same and strict but  evolved with the passage of time to increase the philosophical size and weightage so that it  might remain compatible with the contemporary norms and values. But, Credit for coining the  expression ‘the rule of law’ is usually given to Professor A. V. Dicey, the Vinerian Professor of  English Law at Oxford, who used it in his book An Introduction to the Study of the Law of the  Constitution, published in 1885.¹ Though in the modern times the thick definition of the rule  of law is being highlighted and emphasized by the jurists and distinguished from the thin  definition yet the simple and basic definition of the term “Rule of Law” is “government  officials and citizens are bound by and abide by the law.”²

As it has been stated above, the idea that the law should rule is not new and remained the topic  of debate among the philosophers throughout history, starting from Aristotle and Cicero to A.V.  Dicey in pre-modern era. Aristotle says, “It is more proper that the law should govern than any  one of the citizens.”³ And likewise, Cicero is often cited as saying, “We are all servants of the  laws in order to be freed.”⁴ And according to Dicey three conceptions are included under this  one expression, first is that no man is punishable except for the breach of law, secondly, every  man regardless of his rank is subject to ordinary law, and thirdly, judicial decisions determine  the rights of the citizens in the cases brought before them.⁵ In modern times, the thick  explanation of this doctrine is promoted and emphasized which also includes human rights and  compatibility with the international norms, values and laws as integral part of it.⁶

After cherishing all these wonderful ideas and theories, the very first question which comes  into mind is that whether these ideas are practically possible and whether they are implemented  in the true sense by the countries which are champions of these theories. We will analyze ahead  that the countries which promote these marvelous ideas and seem to be standing on the  principles derived from them, practice some totally opposite norms and conventions while  successfully ignoring the fact that the notion of rule of law is undermined through these  practices and provisions. Likewise, the practicability of this theory seems to be impossible  when observe the human psyche, political practices and believes and cultures of different nations of the world. 

ANALYSIS

 Till 1954 in America, “separate but equal” doctrine was prevalent which was upheld in  Plessy v. Ferguson⁷ case and pretty much reminds George Orwell’s line, that, “All are equal  but some are more equal.”⁸ It should be noted that before getting rid of this doctrine in the case  Brown v. Board of Education⁹ America was not having monarchy or dictatorship, rather it  claimed to be the champion of democracy, fundamental rights and rule of law. But it can be  seen that how hard it is to materialize the notion of rule of law for the nations of the world.  Likewise, the mockery of this notion can be seen in different nations of the word where some  impose totalitarian laws under its umbrella and other are awfully failed to realize it in true  sense.  

The King Can Do No Wrong  

 This maxim is the clear manifestation of how easily we humans live by two totally opposite principles and cherish our amazing ideas while ignoring the abysmal mockery of the  same. The doctrine of the sovereign immunity is defiance of the principle of the rule of law  where later supports the equality of all before the law and former creates the exception of the  powerful. Even though it does not have much negative effect in the modern constitutional  monarchy or the parliamentary democracy where the heads of the states have symbolic role,  still we cannot ignore the effect it puts on our political psyche and culture. The essence of the  rule of law is that all must be equal before the law especially the powerful, so that this  magnificently ideal doctrine is realized in its true sense. In modern times, the explanation of the rule of law advocates the differentiation on the basis of objective differences and justifies  the special treatment for some classes like children, women and the persons with disabilities  etc. with the argument that after this special treatment, the actual equality is achieved. But, making exception for the head of the state can never be justified under the argument of the  objective differences, as doing so opens the gate for the negative use of this flexible principle.

Practicability of the Principle of Rule of Law

 As we have already discussed that the notion of the Rule of Law is struggling to be  implemented in true sense, its practicability seems impossible due to the human’slust for power  and dominance and the political maneuvering which results from them. We will take the  example of Pakistan where there is a parliamentary democracy according to the constitution  and the principle of the separation of power is upheld by it. But practically the actual power  resides in the military establishment which has also imposed four martial laws in the political  history of Pakistan. The military and intelligence agencies interfere in the judicial matters, rig the elections, make and break the governments, pass the bills in the Parliament through  coercion, even take coveted part in constitutional amendment. The recent 26^th constitutional amendment undermined the judiciary where now the government can easily appoint the Chief  Justice and other Supreme Court judges which are hence regarded as “pocket judges”.  Everything seems to be in the control of military establishment which calls the shots in all the  important matters. This example shows us that what is the state of practical implementation of  this magnificent doctrine of rule of law in the world ruled by human beings. 

Conclusion  

 The political lives of the human beings have evolved through ages from tribal system and kingdom in primeval world to democracy in the modern age. Different ideas and theories  have been put forward by different thinkers and philosophers which have influenced the politics  and system of governance. In modern times, these ideas are part of the constitutions of different  nations of the world. Though the practical implementation in its true sense has always been  difficult yet there can be seen the positive effect up to some extent on the modern world due to  these progressive ideas especially the doctrine of the Rule of Law. What we can do is to  endeavor zealously to promote them and play our role in their practical implementation.

REFERENCES

1. Tom Bingham, The Rule of Law, Penguin Books, First published by Allen Lane 2010. 2. Brian Z. Tamanaha, The History And Elements Of The Rule Of Law, Singapore Journal of Legal Studies [2012] 232–247.
2. Aristotle, Politics, Book III Chapter XVI, Translated by William Ellis. 4. Cicero, Murder Trials, Penguin Classics, Translated by Michael Grant, Harmondsworth Penguin. P. 217.
3. A.V. Dicey, An Introduction to the Study of the Law of the Constitution, Eighth Edition, First Edition published in 1885.
4. Plessy v. Ferguson, 163 U.S. 537 (1896).
5. George Orwell, Animal Farm, published in 1945.
6. Brown v. Board of Education, 347 U.S. 483 (1954).

¹ Tom Bingham, The Rule of Law, Penguin Books, First published by Allen Lane 2010.

² Brian Z. Tamanaha, The History And Elements Of The Rule Of Law, Singapore Journal of Legal Studies [2012]  232–247.

³ Aristotle, Politics, Book III Chapter XVI, Translated by William Ellis.

⁴ Cicero, Murder Trials, Penguin Classics, Translated by Michael Grant, Harmondsworth Penguin. P. 217.

⁵ A.V. Dicey, An Introduction to the Study of the Law of the Constitution, Eighth Edition, First Edition published  in 1885.

⁶ Tom Bingham, The Rule of Law, Penguin Books, First published by Allen Lane 2010.

⁷ Plessy v. Ferguson, 163 U.S. 537 (1896).

⁸ George Orwell, Animal Farm, published in 1945.

⁹ Brown v. Board of Education, 347 U.S. 483 (1954).