On 16 October 2017, a controversial public figure was brutally assassinated for daring to uncover some uncomfortable truths about one or more persons. Many of us disagreed with her style and the way she attacked people,but many of us respected her for fighting the fight for the rule of law. I want to dedicate today's column and next Sunday's to that fight: the fight for the rule of law. My intention is to adapt an article which appeared in a law journal many years ago as it helps one understand this important concept, and how it is being misused and abused by certain quarters. I shall quote almost word by word.

The English legal author AV Dicey defined 'rule of law' in two parts, the second of which reads thus: "We mean in the second place ... not only that with us no man is above the law, but (what is a different thing) that here every man, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals."

The idea of the rule of law is a concept recognised by "highly civilised nations", a phrase that covers each country which has a representative form of government; where individual liberty and freedom are protected by law; and where there are bounds and limits to what the government can do to an individual.

It is of great importance to note that these are three entirely distinct concepts which are frequently treated as if they were part of a single one, with the result that our ideas may tend to become confused. If we talk of (a) democracy, (b) the basic rights of man, and (c) the rule of law as if they mean the same thing, and are indissolubly linked together, then we sacrifice the precision of thought which is so necessary when dealing with problems that may give rise to the strong emotions frequently engendered when there are divergences of political opinion. The confusion which may arise from our failure to make a proper analysis of the various ideas which are under discussion has sometimes proved of value to those who are seeking to befog the whole issue.

By referring to "a representative form of government" we are concerned with the nature of democracy, but this question is not directly related to the nature of the rule of law as it is possible to have a democracy which is uncontrolled by law. By suggesting that there is a necessary relationship between democracy and the rule of law it is possible to conceal the fact that a majority in a democratic state can be as tyrannical as any individual despot if there is no effective Constitution to control the exercise of its power. This was one of the cardinal errors made by some of the political philosophers in the 19th century, because they suggested that by the establishment of democracies all other political problems could be solved. Bitter experience has taught us that this may not be true. It has been pointed out that Woodrow Wilson's phrase that "the world must be made safe for democracy" would have been nearer the truth if he had said that democracy must be made safe for the world. We must realise therefore that democracy and the rule of law do not mean the same thing, and they may even be in conflict on some occasions.It is true, of course, that we are more likely to find the rule of law in a democracy than in any other form of government, but it does not follow that there is an inevitable relationship between them.

The second reference is to individual liberty and freedom. Here we are concerned with those rights that have been called basic, fundamental, natural, common-law, "self-evident" and "inalienable". These basic rights include such concepts as freedom of speech and of religion, freedom from arbitrary imprisonment or arrest, and protection against the deprivation of life, liberty, or property without due process of law.

It is of the utmost importance to keep entirely separate the idea of basic rights and the idea of government under law because the former is bound to be vague and uncertain while the latter is clear and definite. If we fail to distinguish between the two, the uncertainty of the former will infect the latter. This does not mean that the ideals which are expressed in the concept of basic rights are not of great value, but it can only lead to error if we identify them with the rule of law. The truth is that these basic rights only receive practical recognition when they are adequately protected by the rule of law. In other words, the rule of law is the machinery by which effect can be given to such basic rights as are recognised in any particular legal system. If we concentrate our whole attention on the nature of those basic rights which ought to be recognised, then we may overlook the entirely separate question: In what way can effect be given to such rights when they have received recognition?

It is this machinerythat is covered by the reference to a highly civilised country where there are bounds and limits to what the government can do to an individual. These bounds and limits are marked by the control which is exercised over the public officers of the State by means of law. It is this which constitutes the rule of law, or to use a more accurate phrase, government under law.It is here that we find the principle which guarantees all our rights and liberties, for if these officers are not bound to recognise them then they can be disregarded at any moment. A Constitution may contain a most elaborate Bill of Rights, but if its terms can be disregarded at will by public officers then these provisions will be of little effect.

We must be careful, however, not to claim too much for this rule of law if we are to understand the function it performs in a political society. The law may become too strict, in particular when the rules that control public officers are over-rigid, because, as a result, the government may lack the necessary flexibility. On the other hand, if they are too fluid, then they will not constitute sufficient restraint. The problem here is a question of due proportion, as is true in the case of almost all other political antinomies. But of this we can be certain, unless there is adequate recognition of the rule of law there can be no limitation on the power of those who control the government of the State, and, therefore, no protection against despotism. Thus, we can say that although the rule of law is not by itself a guarantor of freedom, nevertheless its existence is a prerequisite if such freedom is to be established.

Confusion has been caused by the similarity between the phrases "a rule of law" and "the rule of law". A rule of law in the ordinary sense means any rule of conduct which is binding either on the (a) ordinary citizen, or (b) on the public officers of the State. It is obvious that even under the most absolute tyranny there must be law in sense (a) binding the ordinary citizen, as it would be impossible for those in control of the State to govern in any other way. An autocrat, having absolute power of life and death over his people, would nevertheless have to issue general laws if the administration of his government were not to disintegrate. A rule of law in sense (a) therefore exists in all States. This is not true, however, of laws in sense (b) which bind the public officers themselves, because such legal control of officials is not an inevitable part of government. In other words, the officers who govern by law need not also govern under the law.

To be continued and concluded.

My Personal Library will not appear this week and the next.