Question

what is the difference between "rule of law" and "rule by law"? Can the different approaches to law help to explain government structure in Pacific Asia?

Answer 1

The concept of Rule of Law:

Rule of law is one of the most important principle in law as a field and practice.

Rule of law, though as old as civilisation was popularised by A. V. Dicey in 1880s in his Introduction to the study of law of Constitution. It has three tenets

1. Equality before law

2. Presumption of innocence unless proven guilty

3. Primacy of rights over Constitution

The concept of Rule by law:

Rule by law is ruling as per the law. This implies executive actions should be confined within the four walls of law drawn by legislature. But if the walls itself are faulty, there is no remedy there.

Difference between Rule of Law and Rule by Law:

The following point can be considered as the differences

1. The difference can be simply put as

Rule of Law = Rule by law + Values

Rule of law is a value laden concept which includes Democratic values of liberty, equality, fraternity, justice and others. Thus, it encompasses not only procedural aspects of law but also the substance. While rule by law is merely procedural and value neutral.

For example, Rowlatt Act of 1918 which was passed by British Colonisers in British India was a tyrannical law. It allowed the suspension of writ of Heabus Corpus for 2 years i.e. it allowed detaining people without any substantial grounds for 2 years. It was an example Rule by law and not Rule of law. Thus, any Rule by law inconsistent with legal values is also violation of Rule of law.

2. Further, Rule of law encompasses both the

o The letter of law

o The spirit of law

With much greater emphasis on the spirit over the letter. Rule by law on the other hand is limited to the letter of law.

3. Lastly, Rule by law will enable the independent judiciary in the nation state with separation of power to only challenge and strike down the executive actions that are arbitary or in violation of law. However, judiciary cannot strike down the legislative action even if the law itself is arbitary, unjust and unfair. This, it cannot challenge legislative actions. It will be a case of very rigid and narrow notion of right to liberty except as per procedure established by law. The procedure itself can be unjust.

Rule of law on the other will enable judiciary to strike down both executive actions and legislative actions if they are unfair, unjust and not reaosnable. Thus, rule of law requires the law itself to be fair. It will encompass atleast some elements of right to liberty except as per due process of law. The process here is due and hence it cannot be unjust.

Pacific Asia

A mechanism could be very fruitful in promoting and protecting human rights in the region, but we think it is probably premature at this stage to be discussing details of such a mechanism.

For effective policy development at a regional level, it is important to distinguish between what may be feasible within individual countries and what may be feasible across a whole region.

it may be easier and more productive to develop human rights mechanisms attached to existing regional bodies, rather than to create a new human rights commission from scratch. In particular, given the valuable work of the Asia-Pacific Forum (APF), one possibility would be to expand the functions of, and regional participation in, the APF so that it may become a quasi-human rights commission for the Asia-Pacific region

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