Can The Rule Of Law Be Compromised In Favour Of Legal Functionalism?
- IJLLR Journal
- Jun 22
- 2 min read
Tanya Vig, Jindal Global Law School
Dicey quoted in The Law of The Constitution that “two features have at all times characterised the political institutions of England, the supremacy of the Parliament and the rule of the Law” establishing the legal authority of the parliament, and laying down the principle of equality before law. While parliamentary supremacy binds the courts to the laws made by the Parliament, Rule of Law ensures that adequate safeguards are in place to protect personal freedoms while all organs of the state act as per the powers assigned to them under the Constitutional provisions, and statutes. On analysing these principles within the Indian context, Dicey’s emphasis on legal equality and opposition to arbitrariness aligns with the Indian Preamble’s commitment to securing “justice, liberty, equality, and fraternity” for all citizens, as these ideals inherently demand governance through predictable, non-discriminatory legal processes. While the Indian Preamble doesn't explicitly mention "Rule of Law," its principles are implicit in the commitments to justice, equality, liberty, and fraternity. The formalist approach views law as an internally coherent system that should operate independently of external political or social pressures.
However, significant divergences exist. India's Preamble envisions the country seeking social change and futuristic goals, while Dicey's conception primarily preserves existing liberties. The Indian Constitution establishes constitutional supremacy rather than parliamentary supremacy, and emphasises substantive equality beyond Dicey's formal equality. In Kesavananda Bharati v. State of Kerala (1973), the Court recognised Rule of Law as part of the "basic structure" and contextualised it within India's transformative constitutional vision. However, very few cases have addressed the principle which stands contrary to legal formalism i.e., legal functionalism. Essentially, legal functionalism aims to prioritise social utility and views law as an instrument to do so. This requires the law to conform with prevailing socio- political conditions, which poses the risk of Rule of Law not being followed. According to functionalist theorists like Pound, “The legitimacy of legal principles derives not from their internal logical consistency, but from their efficacy in harmonising competing social interests.”
