Law, Property and the Rule of Law: A Theoretical Perspectives (Part-I)

Abstract

This essay seeks to challenge the age-old and traditional conception of the rule of law offered by the venerated authority, Albert Venn Dicey, whose description of the rule of law has become an article of faith rather than a doctrinal concept rooted in its own time and milieu. Dicey‘s conception of the Rule of Law is premised on certain crucial presuppositions about law, property and the state. For instance, Dicey‘s concept of the rule of law cherishes the ideal of freedom of the individual and his or her property, which stands on the presupposition that all individuals own property and that the state necessarily and negatively interferes in such property entitlement of the individual. The fact is that more than 4 billion of the world‘s poor are excluded from the rule of law, resulting in lack of legal protection of their rights and entitlements1. Further, Dicey‘s idea of juridical or formal equality presupposes that equality is an inherent quality of the rule of law. In other words, where there is rule of law, there we will also find equality under the law. This essay then challenges these presuppositions by way of critically examining the relationship between property, law and the state from the writings of great theorists of the Enlightenment (Hobbes, Locke, Montesquieu, Rousseau and Adam Smith) preceding A.V. Dicey, as well as, from historical evidence of 18th century administration of criminal justice in England (presented by social historians like E.P. Thompson and Douglas Hay). In conclusion, it is submitted that Dicey‘s conception of the rule of law is an anachronism, and is a significant obstacle to the formulation of a modern conception of the rule of law, which meets the aspirations of the 21st century global citizenry. It is further submitted that any modern theoretical conception of the rule of law must also include the material conditions of human beings and the means to its fulfillment. It is the need of the hour to recognize the social content of the rule of law and to understand the rule of law with due regard to the ever-changing conditions of human existence. ______