Fallacy of Dicey’s Aspect of the Welfare State and Rule of Law

This article talks about the Fallacy of Dicey’s Aspect of the Welfare State and Rule of Law, its modern implications and a gist of the solutions that can be employed to overcome its limitations. Rule of law has very ancient origins and it has evolved through time, hence evolving in accordance with the modern welfare state and democratic policies too. Sometimes this evolution may pose a threat or in some cases eliminate the hindrances. Hence, this is an attempt to understand that.

I. Introduction

The Rule of law in the simplest terms refers to the law as sovereign. It evidently points to the law as the highest authority and one that provides a framework for the functioning of a state, under which all the other authorities fall.

The Rule of Law has evolved through ages, from Aristotle’s ideas to the Magna Carta (the Great Charter) in 1215 which set out the standards and basis of limiting the monarchy in accordance with the set laws and customs or the Rule of Law.

Till Albert Venn Dicey who conceptualized it in his work called the “Introduction to the Study of Law and Constitution” wherein he talks about three of the most important elements of Rule of law i. The Supremacy of Law as opposed to the Arbitrary power, ii. Equality before the law, and iii. That the Constitution has resulted from ordinary law and it must secure the life and liberty of all citizens.

Coming to the second idea of a welfare state is ” that all citizens without distinction of status or class are offered the best standards available in relation to a certain agreed range of social service[1]. The identifying characteristics of the welfare state are chiefly these:

1. A vast increase in the range and detail of government regulation of privately owned economic enterprise;
2. The direct furnishing of services by government to individual members of the national community-unemployment and retirement benefits, family allowances, low- cost housing, medical care, and the like; and
3. Increasing government ownership and operation of industries and businesses which, at an earlier time, were or would have been operated for profit by individuals or private corporations.[2]

In his influential book, Law in Modern Society, Roberto Unger articulates with exceptional clarity the impact of the welfare state on the rule of law. He identifies two principal ways in which the welfare state undermines the rule of law. One is the escalating use of ‘open-ended standards and general clauses in legislation’. The other is the ‘swing away from formalistic legal reasoning and formal justice and towards purposive legal reasoning and procedural or substantive approaches to justice’ [3]

The American Constitution in its 14^th amendment has interpreted the second rule of equality by talking about the application of the same law throughout to all persons who have committed a similar or same nature of the crime. This essentially means that an individual’s status or authority will not allow for him to be exempted from the law that is equally applicable to all the other citizens that fall under this Rule of Law.

In the Indian Constitution Articles 14 to 18 guarantee the Right to Equality to all the citizens and prohibits discrimination.

II. Critical Analysis of Rule of Law

Dicey’s approach (to the Rule of Law) is mere, as Loughlin puts it, solely ‘mechanistic’[4] and regresses majorly from the ideas of Austin and Montesquieu.^[5]

“A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and racial persecution may, in principle, conform to the requirements of the Rule of Law better than any of the legal systems of the more enlightened Western democracies…it will be an immeasurably worse legal system, but it will excel in one respect: in its conformity to the Rule of Law. The law may…institute slavery without violating the Rule of Law.”[6]

Through this, he is trying to point out that a merely mechanical and formalised structure of following the rule of law will not hold useful unless it is applied effectively, which will happen through its evolution and relevance to the time and place.

New and modern theoretical explanations require a rehashing of the old, or absolutely new, targets. The modern Rule of Law is connected synonymous with the ideologies of radicalism and constitutionalism that began along with liberalism. Present-day societies likewise acknowledge some type of constitutionalism, that originated in liberalism, and in that lies, the powerlessness to build up another hypothesis of Rule of Law.

Separating the act of the Rule of Law dependent on current political contemplations doesn’t prompt improvement of an elective hypothesis. Thus it is essential to discuss the actual fallacies and limitations that the Rule of Law possesses in order to understand the problems associated with the modern adaptation of Rule of law.

The First Rule of Law by Dicey talks about the Supremacy of law as opposed to the arbitrariness of government’s power. The problem that arises with this is Arbitrary power is broader than the rule of law.

Many forms of arbitrary rule are compatible with the rule of law. Professor Raz argued that “seemingly, within the framework of the rule of law, there can exist societies which oppress minorities, condone slavery, and support sexual inequalities – all of which would be abhorrent to liberal democracies. And yet, by adhering to strict legal structures and procedures such societies could still legitimately claim to excel in their conformity to the rule of law.”[7]

Arbitrary power is more extensive than the rule of law. Numerous types of arbitrary rules may be accordant to the Rule of law. In any case, in the present situation, the administration can’t be run without hindrances unless it has certain discretionary powers vested in its administrative officials. For instance, to provide a foreign resident with a citizenship card rests with the home secretary in which case he has power over the decision of a foreign individual.

Or on the off chance that an outsider is viewed as an unwanted individual, it must be arranged for him to leave the nation. But then again the problem arises of how the decision has been made and on what basis that that individual is a problematic agent.

At this point, the inquiry emerges of what amount of discretion would it be a good idea for them to have? It is inconceivable for them not to have any powers. Caution in the application and elucidation of laws is unavoidable.

Is it, nonetheless, conceivable to imagine that it would be good to imagine that they had no power at all then such questions would not arise. That implies no power to make or interpret the law, and it appears to be doubtful to assume that such a legal system would work best, creating predictability and stagnancy. Thus the problem remains of the amount of curtailment that will be in the realm of Rule of Law.

As said rightly by Raz, “Conformity to the rule of law is a matter of degree. Complete conformity is impossible (some vagueness is inescapable) and maximal possible conformity is on the whole undesirable (some controlled administrative discretion is better than none). It is generally agreed that general conformity to the rule of law is to be highly cherished. But one should not take the value of the rule of law on trust nor assert it blindly.

Disentangling the various values served by the rule of law helps to assess intelligently what is at stake in various possible or actual violations. Some cases insult human dignity, give free rein to arbitrary power, frustrate one’s expectations, and undermine one’s ability to plan.

Others involve only some of these evils. The evil of different violations of the rule of law is not always the same despite the fact that the doctrine rests on the solid core of its basic idea.”[8]

In Britain, the grant of these powers to the executive became acceptable practice, chiefly as a result of the work of constitutional lawyers who successfully argued that the principle of non-delegation of arbitrary powers was not a part of British constitutionalism. Governments elected on promises to sectional interests needed wide powers to honour their pledges.

Moving on to the second rule given by Dicey which talks about Equality before the law, Rule of law isn’t an absolute rule and has a few exceptions.

Equality before the law doesn’t mean the powers of the private individuals are equivalent to public authorities. for instance, a Tax investigator has been vested with certain power and authority and does not have the same influence as a common taxpayer.

Similarly, a cop has the authority to arrest an individual when they have probable cause while no private individual has this power. This does not account for a breach of Rule of Law yet, it requires that these powers must be characterized under the framework of law and that misuse of power ought not to happen.

In the case of which, they must be punished by ordinary courts just as they are for illegal acts by other individuals. Second, the rule of law doesn’t exempt certain classes of people who also fall under the ambit of special rules, for instance, the lawyers have certain rules laid down by the Bar Council which are to be followed, individuals in the military are constrained by military laws, etc.

Citing examples from certain laws in different countries, in England, no legal proceedings can be initiated against the judges, whether their decisions are right or wrong. No legal action can be taken against the Judges regardless of whether their decision is ultra vires, intentionally or not.

Immunities are given to Foreigners and their property, diplomats and Embassies, approved International Institutions and their staff. It implies that they are tried solely by the Law of their nation and not by that of England. the Armed Forces are administered only by Military rules, and they can be tried only in Military Courts and not in ordinary courts. And finally, the Bishops are administered by the Church rules similarly doctors by the General Medical Council.

In India, diplomatic immunity is enjoyed under Article 361(1)[9]of the Constitution- by the President of India and the State Governors and thus they are not answerable to any Courts of the law neither can a criminal proceeding be initiated against them as stated in clause 2 of the same Article.

In France and some other countries, there are two types of courts and laws; Ordinary courts and laws and Administrative courts and laws. France unlike other European countries has a system of civil law and not common law, which is based on the Roman laws which envisioned that the State was an end and the individual a means to achieve that end.

According to which government servants had a few special privileges, including conducting their trials in special courts. Ordinary courts try all the other matters between citizens.

But in this same point, it is essential to talk about the question of equity and equality as this principle doesn’t account for the social differences between disadvantaged classes and the elites. The “haves” and the “have nots” and simply presumes that everyone is equal and equally treated.

This inadvertently gives power to the elite or the dominant classes to manipulate through the law with their power. As Morton J. Horwitz says “By promoting procedural justice [the rule of law] enables the shrewd, the calculating, and the wealthy to manipulate its forms to their own advantage.”[10] Scholars who agree with this statement see the law as “indeterminate,” meaning that the law has no clear or objective meaning.

Coming to the next principle of rule of law which states that the constitution is a result of the ordinary law of the land and the source of the right of individuals is not the written Constitution but the rules as defined and enforced by the courts.^[11]

Natural law principles and religious principles, similarly, are generally thought to exist independent of any human law-making agency (although religious authorities have a say in the latter). Owing to this quality, they establish limits on the state law that no government or lawmaker can alter.

In theory, the authority to interpret the legal limits should not be vested in the same body authorized to make the ordinary law, for that would potentially vitiate the limitation. When this power is allocated to courts, and the clauses being interpreted are open-ended and the decisions have political implications, objections may be raised that courts are engaged in the judicialization of politics in so far as their decisions restrict or override political authorities.^[12]

But, rights do not emanate only from judicial decisions, this view becomes one-sided. Dicey has ignored the rights based on Common Law. This principle also does not hold weightage in countries like India, as the Indian system has the Constitution of India which is the source of the right of the individuals, being the supreme law of the land.

Some solutions to these Limitations

• New devices to give individual rights against discretionary power abuse, like an ombudsman, CVC, SC guidelines and judicial review. Hay thus argues that “the “rule of law” as an ideology required the English ruling classes to accept a degree of self-limitation in order to govern effectively.”[13]
• New mechanisms to give individual rights against unrestricted power misuse have been put in place as solutions. These include the concept of an ombudsman, Central Vigilance Commission, Supreme Court guidelines and judicial review. It also is necessary for governments to be faithful to the law as the supreme moral and ethical doctrine.

This can be done through the institutionalization of separation of an individual from his title in the context of differentiating the official from his office or the position he holds. Government authorities henceforth don’t coerce themselves, but instead are able to hold each other in different positions of authority legitimately accountable, thus balancing and checking their powers.

• Not every single legal framework is ethical and lawful: but they must have the guidance to not stray from the guidelines and follow the right reasons and avoid others. The welfare state, be that as it may, is implied by definition to give the needs and necessities, services and facilities, and to address what are seen to be the negative impacts of the system of laws.

Thus, “for example, it may become necessary to compensate for an existing inequality with a reverse preference afforded by the legal order to the disadvantaged group. Priorities among groups in turn shade imperceptibly into preferences among individuals and individual situations.”[14]

Conclusion

Development of the Rule of law doesn’t guarantee that the law or lawful framework is great or merited. In circumstances when the law authorizes an undemocratic order when it is used for abuse of power, vengeance, personal benefits at the stake of the public demand and rights of individuals, it poses as a danger.

Critics of the Rule of the law believe that because of the indeterminacy in the Rule of Law, at no time is an individual completely secure and given equal opportunities. One can never be certain that their actions are real or legitimately defended. Besides, the Rule of law may not be attached to general ideas of equity or reasonableness. Thus it is scrutinized by many for overlooking the unjust rules – which cardinally are not for the promotion of life and liberty- which is the heart and essence of the principles.

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[1] Asa Briggs, op. cit., 1961, also Gunnar Myrdal, “Beyond the Welfare State” (Duckworth, London, 1960), p. 45

[2] “The Rule of Law and the Welfare State”
Author(s): Harry W. Jones
Source: Columbia Law Review, Vol. 58, No. 2 (Feb. 1958), pp. 143-156

[3] Unger, 1976:194, 195

[4] Loughlin, Martin. (2018). The Apotheosis of the Rule of Law. The Political Quarterly. 89. 10.1111/1467-923X.12526

[5] As he criticizes the theory of Separation of powers in its essence, and it is evident that in Dicey’s view, the judiciary has more power than the other two branches.

[6] J. Raz, “The rule of law and its virtue”, 210-229 at 214, in THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY (J. Raz) (1979)

[7] The Right Honourable Dominic Grieve, The Rule of Law and the Prosecutor, 2013. Available Here

[8] 6

[9] 361(1): The President, or the Governor or Rajpramukh of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties:

Provided that the conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under Article 61: Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Governor of India or the Government of a State

[10] Horwitz, Morton J. “The Rule of Law: An Unqualified Human Good?” The Yale Law Journal, vol. 86, no. 3, 1977, pp. 561–566. JSTOR, www.jstor.org/stable/795801

[11] Constitutional Law of India by J. N. Pandey

[12] THE MANY MEANINGS OF THE RULE OF LAW David Clark, Available Here

[13] Hay, Property, Authority and the Criminal Law, in D. HAY et al., ALBION’S FATAL TREE: CRIME AND SOCIETY IN EIGHTEENTH-CENTURY ENGLAND 17 (1975)

[14] 1976: 198; cf Hayek 1976:85

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