PROJECT OF JURISPRUDENCEPROJECT NAME: RULE OF LAW

SUBMITTED TO: MR.SARKAR

SUBMITTED BY: SHIKHA GUPTA

II YEAR

TABLE OF CONTENTS

Acknowledgement

Introduction

History

Rule of Law in India

World Justice Project

Rule of Law in relation to Economics

Categorisation of interpretations

Golden Rule

Mischief rule

In conflict with natural law

Conclusion

Rule of law

IntroductionRule of law is a legal maxim that suggests that governmental decisions be made by applying known principles. The phrase can be traced back to 17th century and was popularized in the 19th century by British jurist A. V. Dicey. The concept was familiar to ancient philosophers such as Aristotle , who wrote "Law should govern". Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by divine right.Despite wide use by politicians, judges and academics, the rule of law has been described as "an exceedingly elusive notion" giving rise to a "rampant divergence of understandings ... everyone is for it but have contrasting convictions about what it is." At least two principal conceptions of the rule of law can be identified: a formalist or "thin" and a substantive or "thick" definition of the rule of law. Formalist definitions of the rule of law do not make a judgment about the "justness" of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law.

History

AntiquityIn Western philosophy, the Ancient Greeks initially regarded the best form of government as rule by the best men. Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was above the law. Plato nevertheless hoped that the best men would be good at respecting established laws, explaining that "Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state." More than Plato attempted to do, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws. In other words, Aristotle advocated the rule of law:It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws. According to the Roman statesman Cicero , "We are all servants of the laws in order that we may be free." During the Roman Republic, controversial magistrates might be put on trial when their terms of office expired. Under the Roman Empire, the sovereign was personally immune (legibus

solutus), but those with grievances could sue the treasury. In China, members of the school of legalism during the 3rd century BC argued for using law as a tool of governance, but they promoted "rule by law" as opposed to "rule of law", meaning that they placed the aristocrats and emperor above the law. In contrast,the Huang-Lao school of Daoism rejected legal positivism in favor of a natural law that even the ruler would be subject to. Middle AgesIn Islamic jurisprudence   rule of law was formulated in the seventh century, so that no official could claim to be above the law, not even the caliph. However, this was not a reference to secular   law, but to Islamic religious law in the form of Sharia law.In 1215, a similar development occurred in England: King John placed himself and England's future sovereigns and magistrates at least partially within the rule of law, by signing Magna Carta.

Modern timesAn early example of the phrase "rule of law" is found in a petition to James I of England in 1610, from the House of Commons:Amongst many other points of happiness and freedom which your majesty's subjects of this kingdom have enjoyed under your royal

progenitors, kings and queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of the law which giveth both to the head and members that which of right belongeth to them, and not by any uncertain or arbitrary form of government.... Among the first modern authors to give the principle theoretical foundations was Samuel Rutherford   in   Lex, Rex  (1644). The title is Latin for "the law is king" and reverses the traditional rex lex ("the king is the law"). John Locke also discussed this issue in his Second Treatise of Government   (1690). The principle was also discussed by Montesquieu in The Spirit of the Laws (1748). The phrase "rule of law" appears in Samuel Johnson's Dictionary (1755). In 1776, the notion that no one is above the law was popular during the founding of the United States, for example Thomas Paine   wrote in his pamphlet Common Sense that "in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other." In 1780, John Adams   enshrined this principle in the Massachusetts Constitution by seeking to establish "a government of laws and not of men."

Rule of law

In indiaThe constitution of India declares that weare a Democratic. Secular and a SocialistRepublic. The Rule of law governs ourcountry. 'Equality before law' and 'Equalprotection of law' are the most fundamentalright conferred on its citizens. We have alengthy constitution and some otherwonderful laws. Independence of judiciaryand highly qualified bureaucrats are theneed of the hour. In the present situation,many just exist on paper.The question is about our compliance withthe ‘Rule of Law’.Rules of law contains three principles or ithas three meanings as stated below:1. Supremacy of Iaw2. Equality before Law3. Predominance of Legal SpiritThe doctrine of Rule of Law has beenadopted in Indian Constitution. The idealsof the Constitution, justice, liberty andequality are enshrined (embodied) in thepreamble.The Constitution of India has been made thesupreme law of the country and other lawsare required to be in conformity with theConstitution. Any law which is found inviolation of any provision of theConstitution is declared invalid.In India, the meaning of rule of law hasbeen much expanded. It is regarded as apart of the basic structure of

theConstitution and, therefore, it cannot beabrogated or destroyed even by Parliament.It is also regarded as a part of natural justice.

World Justice Project

As used by the World Justice Project, a non-profit organization committed to advancing the rule of law around the world, the rule of law refers to a rules-based system in which the following four universal principles are upheld:1. The government and its officials and agents are accountable under the law;2. The laws are clear, publicized, stable, fair, and protect fundamental rights, including the security of persons and property;3. The process by which the laws are enacted,administered, and enforced is accessible, fair, and efficient;4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.The World Justice Project has developed an Index to measure the extent to which countries adhere to the rule of law in practice. The WJP Rule of Law Index is composed of 9 factors and 52 sub-factors, and covers a variety of dimensions of the rule of law such as whether government officials are accountable under the law, and whether legal institutions protect fundamental rights and allow ordinarypeople access to justice.

Rule of law In relation to economics

One important aspect of the rule-of-law initiatives is the study and analysis of the rule of law’s impact on economic development. The rule-of-law movement cannot be fully successful in transitional and developing countries without an answer to the question: does the rule of law matter for economic development or not? Constitutional economics is the study of the compatibility of economic and financial decisions within existing constitutional law frameworks, and such a framework includes government spending on the judiciary, which, in many transitional and developing countries, is completely controlled by the executive. It is useful to distinguish between the two methods of corruption of the judiciary: corruption by the executive branch, in contrast to corruption by private actors.The standards of constitutional economics can be used during annual budget process, and if that budget planning is transparent then the rule of law may benefit. The availability of an effective court system, to be used by the civil society in situations of unfair government spending and executive impoundment of previously authorized appropriations, is a key element for the success of the rule-of-law endeavor. The Rule of Law is especially important as an influence on the economic development in developing and

transitional countries. To date, the term “rule of law” has been used primarily in the English-speaking countries, and it is not yet fully clarified even with regard to such well-established democracies as, for instance, Sweden, Denmark, France, Germany, or Japan. A common language between lawyers of common law and civil law countries as well as between legal communities of developed and developing countries is critically important for research of links between the rule of law and real economy.

Categorization of interpretations

Different people have different interpretations about exactly what "rule of law" means. According to political theorist Judith N. Shklar, "the phrase 'the Rule of Law' has become meaningless thanks to ideological abuse and general over-use", but nevertheless this phrase has in the past had specific and important meanings.Among modern legal theorists, most views on this subject fall into three general categories: the formal (or "thin") approach, the substantive (or "thick") approach, and the functional approach.The "formal" interpretation is more widespread than the "substantive" interpretation. Formalists hold that the law must be prospective, well-known, and have characteristics of generality, equality, and certainty. Other than that, the formal view contains no requirements as to the content of the law.This formal approach allows laws that protect democracy and individual rights, but recognizes the existence of "rule of law" in countries that do not necessarily have such laws protecting democracy or individual rights.The substantive interpretation holds that the rule of law intrinsically protects some or all individual rights.The functional interpretation of the term "rule of law", consistent with the traditional English meaning, contrasts the "rule of law" with the "rule of man."According to the functional view, a society in which government officers have a great deal of discretion has a low degree of "rule of law", whereas a society in which government officers have little discretion has a high degree of "rule of

law".The rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable.The ancient concept of rule of law can be distinguished from rule by law, according to political science professor Li Shuguang: "The difference....is that, under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law is a mere tool for a government, that suppresses in a legalistic fashion."

GOLDEN RULE  This term refers to the maxim "do as you would be done by". For other uses, see Golden Rule (disambiguation).

The maxim of the "golden rule" is exemplified in many Christian stories, such as the Parable of the Good Samaritan, which are unadorned replications of the Jewish Torah : "Love your neighbor as yourself: I am the LORD."(Leviticus 19:18 —NJPS)The Golden Rule or ethic of reciprocity is a maxim,[ethical code, or morality that essentially states either of the following: (Positive form): One should treat others as one would

like others to treat oneself. (Negative/prohibitive form, also called The Silver

Rule): One should not treat others in ways that one would not like to be treated.

This concept describes a "reciprocal" or "two-way" relationship between one's self and others that involves both sides equally and in a mutual fashion.This concept can be studied from the perspective of psychology, philosophy, sociology, religion, etc.: Psychologically it involves a person empathizing with others. Philosophically it involves a person perceiving their neighbor as also "an I" or "self." Sociologically, this principle is applicable between individuals, between groups, and between individuals and groups.

The Mischief ruleAccording to the Law Commission this was the most satisfactory of the 3 rules (and the Golden Rule was condemned)Gardiner v. Sevenoaks UDC 1950; a cave was premises (although it would not always be - depending on the mischief), since the mischief was the risk of fire which existed in a caveSmith v. Hughes 1960, a prostitute solicited from inside a building to the street. A private building was held to be a "street or public place" for the purposes of the Act to avoid the mischief of harlotry.Sussex Peerage Case 1844, only use mischief rule when the statute is ambiguous. "Acts should be construed according to the intent of Parliament. If the words are clear no more can be done than to use their natural meaning. The words alone do declare the intention of the lawgiver."Corkery v. Carpenter 1951, a bicycle was held to be a "carriage" for drunk in charge of carriage laws, to stop the mischief of drunks on the highwayMagor and St. Mellons R. D. C. v. Newport Corporation 1950 - Denning "We sit here to find out the intention of Parliament and carry it out by filling in the gaps rather than by destructive analysis" - on appeal Lord Simonds this was "a naked usurpation of the legislative function under the thin guise of interpretation" - if there is any omission then it should be remedied by an Act of Parliament.

In conflict with natural lawUpholding the rule of law can sometimes require the punishment of those who commit offenses that are justifiable under natural law but not statutory law. Heidi M. Hurd raises the example of a battered woman who rightly believes that there is a strong probability that her husband will eventually attempt to kill her and her children unless she preemptively kills him. If the law does not permit the acquittal of those who claim self-defense in the absence of an imminent threat of harm, then the woman must be punished, or "what will become of the rule of law? For law seemingly ceases to be law if judges are entitled to rethink its wisdom in every case to which it applies and to disregard it whenever it is inferior to the rule that they would fashion.

ConclusionThis project in my experience has been amazing . I cant describe it in words . The in depth learning of Rule of law was an extreme pleasure and I would like to continue my work on it and maybe also find some strategies to overcome its drawbacks . As for now this project has offered me a lot of knowledge about law and how the envronment impacts law. I would look upto more project like these for advancements and better understanding industries and enterprises.During this project I came to know how the law evolved ,their successes and failures.If I wouldn’t have had this project I may not have learnt this.