Difference between Rule of Law and Rule by Law

You might have come across the terms 'Rule of Law' and 'Rule by Law', but do you know what exactly they stand for and what is the difference between the two? If not, this article focuses on bringing clarity on two different concepts which might look similar at face value. 

Rule of Law

1- Definition: Rule of Law is derived from the French phrase 'la Principe de legality' which means 'Government based on the principles of law'. It is based on the Latin term 'Lex is Rex' which means 'Law is King'. In simple terms, the King or Head of the State should be governed by the word of law. 

2- Origin: Chief Justice Edward Coke of England is considered to be the originator of this doctrine. He held office during the reign of King James I. 

3- Concepts developed by Dicey:

a. Supremacy of Law: This means that no one can be arrested, punished or be lawfully made to suffer in body or in goods except by the due process of law and for breach of a law established in the ordinary legal manner before the ordinary courts of the land.

b. Equality before Law: This means that all men are equal before the law of land administered by the ordinary courts.

c. Predominance of Legal Spirit: This means that the rights exercised by the people such as the right to personal liberty, freedom from arrest, freedom to hold public meetings, etc. are the result of
juridical decisions in cases between the parties. Thus, the courts of law must act as the guarantors of liberty.

4- Rule of Law and Indian Constitution:

a. The Preamble to the Indian Constitution mentions Justice, Liberty, and Equality. As per Article 13 (1) of the Indian Constitution, the constitution shall be the supreme law of the land & all other laws in order to be legally valid shall conform to the constitution. 

b. As per Article 21 of the Indian Constitution, no person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India.

c. As per Article 14 of the Indian Constitution, the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India and discrimination on grounds of religion, race, caste, sex or place of birth is prohibited. 

5- Exceptions:

a. Equality is not an absolute but relative concept in India. For example, Reservation is allowed in India as mentioned in Article 15 and 16 of the Indian Constitution. 

b. Existence of Quasi-Judicial bodies. These are non-judicial bodies but can interpret the law. For example, CAG (Article 148), and Tribunals (Article 323-A and 323-B). 

c. Parliamentary privileges are given to the members of parliament to allow them to perform their duties properly without any hindrance as mentioned in Article 105 and Article 194 of the Indian Constitution. 

d. Criminal immunity to President and Governor as mentioned in Article 361 of the Indian Constitution. 

e. Diplomatic Immunity as per the Vienna Convention. 

Rule by Law

1- Definition: It is based on the Latin term 'Rex is Lex' which means 'King is Law'. In simple words, it is the tool of tyrants and dictators to oppress and subjugate people. 

2- Origin: King James I of England managed to emerge supreme in his struggle against the Church and the common law judges and twisted the phrase 'Lex is Rex' to 'Rex is Lex'.

3- Rule by Law: It is also known as 'Rule by Men'. Thus, any law which is laid down by the supreme lawmaking authority of the land is Rule by Law. 

4- Examples: 

a. North Korea enacted a law according to which men and women should only cut their hair according to the 28 government approved hairstyles. 

b. Nazi Germany put Jews in concentration camps and thereafter sent them to the gas chambers. The act is said to be backed by laws. 

c. The apartheid regime in South Africa was justified on the basis of enacted laws.

To sum up, the Rule of Law is to control the unlimited exercise of the power by the supreme lawmaking authority of the land while the Rule by Law is laid down by the supreme lawmaking authority of the land.  

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