What Does Prescribed by Law Mean
While the text used for "prescribed by law" has been used in many legal contexts in many nations for centuries, its origins can be traced to Latin and to earlier nations predating modern nations. The procedure for showing what is prescribed by whatever law under consideration is in writing and contained within a set of legal documents known by law. That writing is called a "law." An essential characteristic of any law is that it must be in writing. Courts always deal with the issue of a law being written. Thus, a law is legally valid only when it is written.
"Prescriptio" and "prescribed by law" are used synonymously in legal terms. A law which is "prescribed by law" is any such law, ordinance, writ, statute, enactment, rule, regulation, or provision in a municipal code, which has the force of law . "Prescriptio" means anything written down, and in historical times meant a prescription affecting land and boundaries. Since all land in the United States was at one time or another "prescribed" or written down in municipal ordinances and provisions, "prescriptio" was later used to mean anything "prescribed by a writing," hence "prescribed by law."
"Prescribed by law" was sufficiently clear that the Supreme Court of the United States held in 1856 as follows: "By the phrase, ‘All persons in the United States,’ the act of congress of September 18, 1850, was prescribed by law for every state in that government to adopt in its own courts." From this it was inferred that there had been no confusion about the phrase "prescribed by law" in that very statute into law.
"Prescriptio" remains a phrase in the modern language of legislation, and is mentioned in five major international statutes today.
Context and Usage in Law
The phrase "prescribed by law" appears in several articles of the Constitution. As in most legal contexts, its interpretation can be dependent on context. Article 11 deals with criminal procedure while Article 39 concerns the equality of all persons. It is in the context of Article 39 that the phrase is most often encountered. The section’s text refers to "the equality before the law of all persons, and that no one shall be discriminated against…" But nowhere does it define what that law is. What constitutes a law is consequential, for example, when considering the administration of justice. A litigant may challenge a public official’s decision, for example, for not having been taken "in accordance with law", as Article 23 provides. If this does not refer to any international law, then it must refer to domestic law, but what domestic law? Clearly, there are some non-state actors that are nevertheless law-makers. If a potable water service provider issues a rule not permitted by its statutory instrument making such modification, an affected user could seek judicial review for the decision not being taken "in accordance with the law". But is it a law? The phrase requires definition for clarification, and clarification is necessary for certainty in enforcing the rights afforded under the Constitution.
When the Constitution was amended (Act 8 of 2011) to better reflect South Africa’s status as a Constitutional State, the phrase "prescribed by law" was amended to read "law." The new clause was more succinct; however, this had the effect of removing the presence of certainty from the new clause by failing to define "law". There are statutes, provisions and conventions written in the jurisprudence of many countries that can be cited as law, and the interpretation of what "law" is may well include these.
The United Nations’ Draft Declaration on Rights and Duties of States (1993) and the African Charter on Human and Peoples Rights (1981) have both adopted the phrase "prescribed by law" as exogenous factors that are anticipated in going to heart of our constitution’s enforcements. In these and other examples, the definition of "law" is understood in light of municipal, international and/or customary laws. With this in mind, the phrase "prescribed by law" should not be disregarded as having been wholly superseded with the amendment.
In France, "law" in the context of the Constitution is interpreted to derive from statutory texts. In the European Union, the phrase "prescribed by law" is defined by the European Court of Justice as meaning "the law of the member states". Other examples across jurisdictions include the European Convention on Human Rights (1950), the Convention on Human Rights and Fundamental Freedoms (1969), the African Charter on Human and People’s Rights (1981), the American Convention on Human Rights (1969) and the South African Constitution (1996).
Significance in Constitutional Law
The phrase "prescribed by law" continues to appear and attain significance in the field of constitutional and human rights law, although its actual meaning in legal parlance is less clear. This is because the Supreme Court of India, right from the inception of constitutional jurisprudence in India, has treated "prescribed by law" and "authorised by law" as synonymous, thereby limiting its scope as a safeguard for individual rights and liberties.
However, the Courts have sought to give meaning to the words by insisting that there must be at least some assurance that the impugned law has been subject to parliamentary scrutiny and debate. The word "law" includes, in this context, a body of law and regulations. The mere existence of a law, whose legislative process has been modified, to good legislative practice, would not be sufficient to satisfy the test. It is not enough, then, to simply consider the formal legislative process if it is not followed by an adequate degree of parliamentary control over the impugned legislative decision.
Furthermore, the "prescribed by law" guarantee inherently includes the guarantee that any deprivation of rights and freedoms has to be done only by a law and not by any executive action or executive orders, including delegated legislation. Where a law and the authority of the legislature are required to restrict rights and freedoms, the delegatee of legislative authority, must also be subject to parliamentary control. If this is not met, such laws will be held unconstitutional.
Similar to Article 14 of the International Covenant on Civil and Political Rights (ICCPR), Article 21 of the Constitution of India guarantees that "No person shall be convicted of any offence except for violation of a law in force in the country at the time of commission of the offence, nor be subjected to a heavier penalty than that which is prescribed by law." However, unlike Article 14 of the ICCPR which lists protection against retroactive criminal laws as a distinct clause in the provision, Article 20 of the Constitution of India also contains a clause on retrospective substantive criminal law.
Judicial Decisions and Interpretations
The term "prescribed by law" has been examined in a number of court cases. Some of the most notable interpretations emerged from decisions made under the Seventh Amendment to the U.S. Constitution in the 19th century. In Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998), for example, the court relied on the text of the Seventh Amendment, initially adopted in 1791, and on English common law that predates it, to determine whether a jury determination was required on the amount of statutory damages sought by a copyright holder. The court considered the phrase "prescribed by law" with regard to the right to jury trial for civil cases where the value of the legal rights in question are more than twenty dollars. The case also addressed the amount of statutory damages which may be assessed in such a case.
In addition, in 1970 the Supreme Court early arrived at an interpretation of "prescribed by law" in another context in Toibb v. Radloff, 498 U.S. 146 (1990) where the phrase "prescribed by a court of competent jurisdiction" was interpreted with regard to the Bankruptcy Code of 1978 .
Constitutionally, a historical view of the phrases contained in the constitution, including those enumerated in the Bill of Rights, contributes to their interpretation. More recently, the Federal Trade Commission, in its amended rule regarding Labeling and Advertising of Clothing Fiber Content, Care, and Manufacturers’ or Importers’ Name, used the phrase "prescribed by law" in defining the term "jobber." The FTC defined "jobber" as "any person or persons who sells or distributes articles of wearing apparel or piece goods to others for resale, when such persons buy or acquire from a manufacturer or wholesaler . . . any articles of wearing apparel or piece goods with or without processing, which they advertise, offer for sale, or sell in substantial lots (500 or more individual garments, or $50,000 [fifty thousand dollars] or more in retail value of such goods) to factories, wholesale distributors, chain store organizations, jobbers, importers, or others, for resale."
Criticism and Controversy
There are some critiques of the phrase "prescribed by law" as it applies to different contexts. One example is in the context of those facing criminal charges. Issue arises in the use of the phrase where a law may not provide for an absolute defense, and only allow for defenses for mitigating or extenuating circumstances. The argument is that this will infr the minimum guarantee that, in accordance with law, someone who commits what could be a crime, has protection.
Likewise, it is argued that the phrase "prescribed by law" is an interpretation of nothing more than national law, and cases, meanings, doctrines, and interpretation, all vary. The application of case law will vary from country to country. Different interpretation will apply in one country to those in another.
This is echoed in the argument that the phrase can lose its meaning where the interpretation confirmed in cases is not taken into account when interpreting the instruments. If domestic law provides for remedies or defences that are not recognised or applied to international law, then there may be a violation of the protections in the instruments. On the other hand, no specific time limit for the limitation of rights is provided for, and the limit to the limitation can also be unknown, for example, where violations cannot be discovered.
In addition, it is argued that interpretation of the phrase may violate the principle of equality before the law, where bias can be shown to influence the application of non-discrimination.
Conclusion and Implications
The phrase "prescribed by law" has frequently been used in jurisprudential reform efforts around the world — perhaps tied to the fact that the guiding principles for any democratic legal system likely dictate that the powers or rights of individuals must be derived from law and not solely from administrative precedents or cultural norms. Nonetheless, according to some scholars, this phrase has "lost its originality" and its legal implications have been subject to political forces. The extent to which this phrase is open to alternative interpretations, and the future role of this phrase in the evolving legal landscape around the world , remain to be seen.
Constitutional reform efforts will undoubtedly continue to reshape and reconstruct the way this phrase is understood and incorporated into laws. Future decisions by national courts may introduce new interpretations of this phrase, or make changes to current interpretations. Similarly, international bodies will continue to interpret this phrase in different contexts, which may have the effect of either establishing more specific parameters for interpretation or allowing for even greater divergence of how it is interpreted across jurisdictions. Until then, we will need to continue to look towards the future to determine the impact of these dynamic interpretations of this phrase.