AN ANALYSIS OF DISTINGUISHING FEATURES OF THEORIES

UNDER RULE OF LAW

-Visalaakshi.An
BA0130079
25TH August 2015

Justification for the Title:

Rule of law is one of the basic fundamental theories in the field of Administrative Law. I see
it as a safeguard against arbitrary laws and abuse absolute power with the state authority. It
regularizes the societal behavior through principles of natural justice and other humanitarian
policies. The doctrine subjects each individual to law, including the law-makers. In this sense,
it takes a liberating stand as against other kinds of autocratic states. These ideas of Natural
Justice and equality before law intrigued me to research and study on the constituent theories
of this Doctrine;

Red Light Theory

Green Light Theory
Amber Light Theory

and to analyze their distinguishing features.

Tentative Chapterization:
I.
II.
III.
IV.
V.

Rule of Law
Constituent Theories of Rule of Law
Features of the Theories Distinguished
An analysis of the features
Conclusive note

Research Objectives:
The main objective of this paper is to study the causes for the propagation of Rule of law with
reference to the time period of evolution of the doctrine. Along with this, the paper also tries
to analyze the distinguishing features of the constituent Theories of Rule of Law.

Research Questions:

 What are the major distinguishing features of the Theories under Rule of law?
What was the need for the evolution of these constituent theories?
Why does the doctrine matter today?

Hypothesis:
What was the reason rule of law came up? Rule of Law evolved in a period towards the end
of monarchy and other non-democratic forms of governments across the world. There was a
need for liberation from the clutches of men who made laws and thought of them to be above
all laws- tyranny. This must be one of the foremost reasons attributed to the development of
the doctrine. But what is the reason for the development of the constituent theories under rule
of law? I think, as the society evolved, there was a need for more theories like social welfare
and free trade. So, the umbrella doctrine, adopted these other theories under its wings.

Survey of Literature & Literature Review:

Books
I.

Lecture on Administrative Law , C.K.Takwani, 5th Edition, 2014

The book gives an introduction to rule of law and its constituent red light and
green light theories. It elucidates each theory briefly with examples. The merits
and pitfalls are also discussed. The author of the book has explained the theories
in a descriptive manner. It helped me understand the fundamentals of the theory
and gave me a clear picture towards my approach.

II.

Administrative Law, H.W.R.Wade & C.F.Forsyth, 11th Edition

The book relates rule of law with the acts of various organs of the state. There is a
supportive argument to rule of law from the human rights perspective, which is
the major cause of evolution of the doctrine according to me. It also tries to bring
in the principle of separation of powers in relation to Rule of Law. This book
gives a comparative understanding of various theories.

III.

Constitutional Law, Administrative Law and Human Rights: A Critical

Introduction, Ian Loveland, 3rd Edition, 2003
The book provides an in-depth coverage of the core elements of constitutional and
administrative law. In addition, it explores the latest ongoing debates around
potential reforms. This highly engaging text provides a unique cross-disciplinary
approach to the subject, with emphasis on material drawn from political theory,
political science, and social history. The author's stimulating, narrative style
encourages critical analysis. I gained a fundamental view of public law in its
wider context.

Articles
I.

Carol Harlow and Richard Rawlings, Red Light and Green Light Theories,
Cambridge University Press, Law and Administration, 3rd edition.

This article has helped me understand the red and green light theories from the
Diceyan perspective. In a rule-of-law state, there must be as much individual
freedom as is compatible with the freedom of others, reflecting the ideal of a liberal
democratic society. Modern principles like judicial review have also been
discussed in addition to the theories.

II.

Guillermo A. O'Donnell, Why the Rule of Law Matters, Journal of Democracy,

2004.
It speaks about fair application of rule of law and tells us why this matters at all.
This has in turn helped me answer my research questions.

III.

Mrs. Srividhya Jayakumar, The Fire Fighting and the Fire Watching Functions,
Law Quest, 2011.
Administrative law and its functions are set more into the Indian context in this
article. Nevertheless, the constitutional relations to the doctrine of rule of law and
its constituent theories and their distinguished features are explained very

beautifully. It also gives a picture of how the constituent theories are on the play in
the state.

Research Methodology To Be Adopted:

The research methodology is analytical in nature. The facts or information already available
are used to make critical evaluation of the material.

The research is also fundamental and

conceptual in nature wherein we are trying to re-interpret and analyze the distinguishing
features of the theories under the doctrine of rule of law.

Set of Data Collection Tools:

All the data sources used in writing this paper are secondary in nature. These sources are
inclusive of books and articles apart from online sources.

I. Rule of Law
From Hitlers Nazi Germany to the sprawling Remnants of the Soviet Empire, there has always been
an attempt to replace such arbitrary and abusive political regimes with governments that are more
responsive and responsible towards the public. The theory of Rule of Law places limits on the powers
legitimately exercised by the government or the ruler.

Lately, this doctrine has become one of the most fundamental pillars upon which the idea of
democracy rests. Democratic rule of law ensures political rights, civil liberties, and mechanisms of
accountability which in turn affirm the political equality of all citizens and constrain potential abuses
of state power.

Without this, rights and equality of all citizens are not safe and the dignity of

individuals will be open to threat. That is why today we have independent Judiciaries playing this
protective role. The foundational idea being that the society should be governed by law and not by
men.
History and Origin:
The first evidence of European Society governed by law comes from ancient Greece dating back to
late 7th and early 6th centuries BCE.2 The Greek courts were bound by the written letter of law.
Aristotle provided a theoretical justification for the Rule of Law. He said that because of the
infirmities of rulers, the laws should be sovereign. 3 It became quiet prevalent in ancient Rome as well.
The Doctrine was re-discovered in Western Europe. Magna Carta, though not a complete embodiment
of Rule of Law, it did contain most of the attributes of Rule of Law equality, procedural protection,
independence of Courts among others.
Seventeenth century England witnessed scholars like Locke, who came forward to give a theoretical
justification for the doctrine. His defence was premised on the idea that a governments legitimacy
depended on popular consent, because an individual would not consent to a ruler who does not offer
security.
By the eighteenth century, contemporary thinkers all over dismissed the ideas of arbitrary rule and
despotism of any kind. This thought was reflected in England and in America. This period saw the
growth of three constituent institutions vital to the Rule of Law; written constitutions; separation of
powers (Montesquieu) and judicial review.
Nineteenth century saw a vigorous development of the ideas of Rule of Law. Towards the end of the
19th century, the phrase rule of law was given a contemporary formulation and popularised by A. V.
Dicey. He understood it to embody three concepts; supremacy of law over arbitrary power; universal
application of law by courts; and the derivation of rights from the law of the land.
1 Guillermo A. O'Donnell, Why the Rule of Law Matters, Journal of Democracy, 2004.
2 John Kelly, A Short History of Western Legal Theory (Clarendon Press: Oxford, 1992), 1, 9. Cited
in History and Importance of Rule of Law;
http://worldjusticeproject.org/sites/default/files/history_and_importance_of_the_rule_of_law.pdf
3 Kelly, Supra 2, 25

In the middle of 20th century, Friedrich Hayek argued that the basis of the rule of law was the
proposition that government in all its actions is bound by rules fixed and announced before hand
rules which make it fair to see with fair certainty how the authority will use its coercive powers in
given circumstances, and to plan ones individual affairs on the basis of this knowledge. 4

The term Rule of Law is derived from the French phrase 'La Principe de Legality' (the
principle of legality) which refers to a government based on principles of law and not of
men. In a broader sense Rule of Law means that Law is supreme and is above every
individual. No individual whether if he is rich, poor, rulers or ruled etc are above law and
they should obey it. In a narrower sense the rule of law implies that government authority
may only be exercised in accordance with the written laws, which were adopted through an
established procedure. The principle of Rule of Law is intended to be a safeguard against
arbitrary actions of the government authorities.
Structural Requisites of Rule of Law:
Laws must be general rather than being particular, justified by legal principles and
rules.
Laws must be reasonably possible for people to follow them.
Laws must be fully and fairly enforced by open, accessible and impartial courts.
For Rule of Law to sustain, it must be legitimized by popular consent.
Importance and Impact of the Doctrine:
Known as Delhi Declaration, 19595 which was later on confirmed at logos in 1961;
According to this formulation"The rule of law implies that the functions of the government in a free society should be so
exercised as to create conditions in which the dignity of man as an individual is upheld. This
dignity requires not only the recognition of certain civil or political rights but also creation of
4 Hutchinson and Monahan, 106 (quoting Friedrich Hayek, (The road to Serfdom(1946) p54; Steven
J. Burton Particularism, Discretion, and the rule of law, in the Rule of Law, Ian Sharpio, ed. (1994)
180 ); Cited in History and Importance of Rule of Law;
5 The New Delhi Congress or Declaration of Delhi was an international gathering of judges,
lawyers, and law professors from countries all over the world, united as the International Commission
of Jurists that took place in New Delhi, India in 1959. The theme of the New Delhi Congress was
"The Rule of Law in a Free Society". The Congress further developed the principles and procedures
underlying the Rule of Law as well as defining and clarifying the concept itself.

certain political, social, economical, educational and cultural conditions which are essential to
the full development of his personality".
Rule of law plays a major role in promoting democracy and protecting civil and human
rights. It is also associated with economic growth and social stability. It acts as a check
against despotism and tyranny. Every human has the right to be treated justly. Rule of law
will ensure such social life and human interaction, in which the governors and governed are
subject to the law and may not be superior to it. 6 In the last 25 years, there has been a
movement towards democratization. Rule of Law is the fundamental base to stimulate
economic and social progress, and promote the development of the country, otherwise,
investment and creation of new companies are not stimulated, and therefore it is evident that
without Rule of Law, there cannot be development in our country.
High rule-of-law scores are the single biggest contributor to national prosperity, peace, liberty
and freedom from corruption. Virtually nothing is more important for us to understand and
uphold than the rule of law.7
Historically, any ruler going against this principle has invariably faced an appraisal against
him/her. Apartheid for example violated so many constituent fundamentals of rule of law;
equality before law and absence of discrimination. Today, racism is almost completely out of
all democratic societies. In the existence of Rule of Law, there is an a-political, uncorrupted
police force as a component. What is more important is an independent judiciary for
adjudication of Disputes. In societies with a history of tyranny and authoritarianism, these
institutions are either defective or in effectual in nature.
In order to realise the importance of Rule of Law, we must imagine a society without it. .
Perhaps most obviously, the application of law favouring particular groups is likely to
generate resentment amongst those slighted. Absent a productive means of channelling
6 The importance of Rule of Law in the Development of the Country, Carlos
Humberto Franco, Nov. 2012; http://www.centrallaw-guatemala.com/_blog/DiazDuran_and_Asociados_Blog/post/The_importance_of_rule_of_law_in_the_develop
ment_of_the_country_/
7 Why the rule of law is of the utmost importance by Leon Louw, 26 June 2013,
http://www.bdlive.co.za/opinion/columnists/2013/06/26/why-the-rule-of-law-is-of-theutmost-importance

grievances (which ideally would involve the judicial system), disadvantaged groups may
resort to more violent tactics. Vigilantism may be one extreme response where few
alternatives exist aside from taking the law into one's own hands. Countries lacking the rule
of law also often face economic disadvantage, which may become a source of conflict.
Development experts often point to the importance of having clear statutes for the
enforcement of contracts and the like as a precursor to attracting significant investment and
consequently economic development.8
The Rule of Law offers order and stability to a society with properly functioning Judiciary
and Police force.

I. Constituent Theories of Rule of Law

The constituent theories of Rule of Law are famously called as the Traffic Light Metaphor in
Administrative Law (Red, Green and Amber light theories). They originated with English Public Law
Academics Harlow and Rawlings.9 The metaphor was used in a South-African Context by Laurence
Boulle as a way of classifying the different approaches to the desirability and optimal scope of States
power to administer.10
Red light theory:
In Boulles book, red theory is projected having a negative view of state power and is one in which
emphasis is placed on control, limitation, and supervision of the state and its power primarily through
institutions of Law. The state should be restricted to a very limited range of social functions like law
and order and defence and not social welfare of economic regulation.

8 "Building the Rule of Law." World Bank.; Rule of Law and Development as cited
in Rule of Law, Eric Brahm, March 2005
http://www.beyondintractability.org/essay/rule-of-law
9 C Harlow and R Rawlings, Law and Administration (1984).
10 L Boulle, B Harris & Hoexter, Constitutional and Administrative Law. (1989)
80-83