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Published: Fri, 02 Feb 2018
Proclaiming the importance of the concept of the “rule of law” is just a modern form of unjustifiable idolatry. Do you agree?
The question is difficult to answer; I will therefore briefly concentrate on an analysis as it is currently presented. The use of the word ‘idolatry’ is ambiguous in the question and throws up confusion in analysing the rule of law. The author perhaps meant it in the more colloquial sense of worshipping a false idol, the implication behind which would be that the Rule of Law is a concept that obscures or diverts societies from an apparent post-modern or realist truth. However ‘idolatry’ has another meaning that implies merely that the attention paid to somebody or something is ‘excessive’ or over-zealous. The latter meaning throws up concerns that the author was not challenging the concept merely the level of importance that has been attached to the concept, something which is adequately borne out in jurisprudential writing on the subject. However, as my dialogue with the questioner can only include one response I must cover both eventualities.
The major problem with writing a critical dialogue on the concept of the Rule of Law is that there is no such thing; there is no one ideal of what the Rule of Law is. Tamanaha argues that the concept predates Christ and that we can identify not only the substantive / formal rule of law divide but also a pre- and post-liberal divide . Therefore before considering the critiques of the rule of law by existing dialogues I intend to show the variations in conceptions of the rule of law, as this is key to more correctly understanding a critique of the rule of law.
1. Conceptions of the Rule of Law
There is a distinct pre-liberalism concept of the rule of law with its own tenets that are eminently stated by Aristotle:
‘He who bid the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast …The law is reason unaffected by desire’
Plato and Aristotle imputed none of the liberal traditions adjuncts to the concept such as democracy, individuality or equality but were solely concerned with the fact that a society needed a rational touchstone separate from the potential for populist tyranny as existed in early Athenian culture. Law was not even seen as an ideal but merely a substitute for the weaknesses of men who could not handle the arbitration of rules in a rational manner. This sort of theme was very uniform in pre-enlightenment dialogues on the structures of the state, it is extremely difficult to grasp but the rule of law had nothing to do with fairness and egalitarianism as it does in modern society, it was purely to do with putting the sovereign of a society within a normative legal system. The reason for this was to guarantee a minimum of security for those in society. The prime example for this is Magna Carta where the Barons were concerned with keeping their wealth and land and forced King John to agree to their demands. We also to have to bear in mind that there was no positive law concept, so very often appeals to the Rule of Law in controlling or at the very least restraining the ruler of a society had reference to divine law or natural law not the posited law .
However, around the beginning of the 18th century when scientific advances in western society led people to question the precepts of divine law and rule is where we start to see the conception of the rule of law that is most commonly espoused by legal writers, judges and a vast majority of modern rulers . It is in this more modern conception where we see the various liberal and modernist agenda’s take up the rule of law and attach to it various other meanings.
Positivistic dialogues talk about the rule of law in terms of their fears of discretionary abuse of power. They see the Rule of Law as providing constancy and reliability in a legal system. This is why the positivist places such an emphasis on the formal nature of law . HLA Hart gave the best definition of the rule of law in positivism when he stated:
‘A legal system is a ‘closed logical system’ in which correct legal decisions can be deduced…from predetermined rules’
This is therefore separate from the rule of law in pre-enlightenment terms as it deals with how law can achieve the liberal aim of securing the autonomy of individual citizens to ‘pursue our own good in our own way’ . This is the classical liberal-positivist conception of the rule of law and the one that is most-oft attacked by dialogues in the latter half of the 20th century, it is typified most prominently by Hayek’s work on Constitutional Law that drew on early liberalist ideas as propounded by Locke and Montesquieu and clearly stated that the rule of law was in place to define ‘legal liberty’ .
However, other positivist writers have taken a different stance on this traditional liberal interpretation of the rule of law to include democratic notions. Therefore the positivist tradition co-opts yet another concern under the title of rule of law – namely the idea that legal norms have to be generated by a democratic means. This conception of the rule of law is most often expressed by members of the judiciary, whilst it is linked to the formal view of the rule of law as expressed by earlier positivists such as Austin and Hart, it also takes into account that the reason the rule of law is so binding on the judiciary is that the law’s were promulgated by the democratically elected organ of the state, in most western countries this will be the legislature . Tamanaha has suggested that again this is a necessary adjunct to the rule of law under post-enlightenment liberalist conceptions; it represents notions of ‘political liberty’ as outlined by writers such as Rousseau and Kant .
However, as with legal formalism generally, following the atrocities of World War 2 there was a feeling that the rule of law could not escape the fact that all those acts would be carried out lawfully under a formalist’s hegemony and that there was a lack of moral basis for the rule of law. Therefore a few writers, most notably Lon Fuller and Ronald Dworkin, tried to give the rule of law a moral infusion by treading a middle path between positivism and natural law. This conception of the rule of law has most notably been highlighted by the contemporary writer TRS Allan, building on Fuller’s argument:
‘At the heart of the ideal of the rule of law . . . is the role of the individual moral conscience: any rules entitlement to obedience…, is ultimately a matter of personal moral judgment’
This seems to have become the most recent conception of the rule of law defined as a respect for fundamental inalienable rights, it still retains the formal aspect of it’s predecessors but incorporates some almost natural law connotations . It has been argued that this is now the common-sense understanding of the rule of law, which seems to live exogenously from the wider jurisprudential discourse on it . However, conceptions such as these start to include so many substantive concerns that they in fact contradict much of the basis for a positivistic account of the rule of law and its democratic concerns . Allan seems to be arguing that the rule of law is some sort of moral imperative that underlies positive law. This conception also becomes more judge-oriented with judges consulting they’re own moral understandings in deciding whether the rule of law in fact mandates a diversion from positive law .
2. Critique of The Rule of Law
A thoroughgoing critique of the rule of law has, in my opinion, not been affected because the advances in the conceptual nature of the rule of law in recent years haven’t as of yet attracted the criticism that the more formal conception has. What the previous section makes clear is that the rule of law has been used through the various stages of western society as a vehicle for the more underlying dialogue to expound a legal theory. In reading people like Hart, there is little care paid towards the particular distinction between the rule of law and the wider aspects of liberal-positivism. The myriad of conceptions leaves this writer wondering whether the rule of law exists at all.
Traditional critiques have generally been levelled at the varying positivist conceptions of the rule of law; this is merely representative of a general dissatisfaction with positivism in the latter half of the 20th century. The rise of legal sociology has encouraged movements such as realism, critical legal studies and postmodernism which challenge the familiar jurisprudential orthodoxy. The critical legal studies movement in particular have been quite dismissive the rule of law. The critical legal studies movement has been described as constituting a ‘direct attack’ on the rule of law because it uses a variety of empirical studies to prove that law can be ‘arbitrary, contingent, unnecessary and profoundly unjust’. The main thrust of their criticism is that law is ignorant of the wider sociological factors that can influence laws content . This includes studies that show that when judges apply the law they are unable to access the reasons they in fact use , the CLS movement generally works along these lines by pointing to the impinging sociological factors such as workloads, social relationships, psychological failings and other such ‘real’ factors on the application of the law . The CLS fundamentally attack the formalistic positivist rule of law that application of clear rules to a situation will create definitive areas of personal autonomy. This liberal ideal is seen as antiquated and totally ignorant of reality. The CLS see this as ‘closing one’s eyes to the horribleness of things’ and living in ignorance. Whilst certainly the arguments of the CLS are significant in debunking the Legal Formalists devotion to that particular conception of the rule of law, they make little or no reference to less orthodox conceptions such as the pre-enlightenment and almost natural law conceptions outlined by writers such as Tamanaha and Allan. This is perhaps because CLS are more concerned with a radical reformation of the way we think about legal reasoning but nevertheless the criticisms of the CLS are not enough to dismiss adherence to the rule of law both by the judiciary and legal theorists as it doesn’t fully encapsulate the full ambit of rule of law conceptions. The CLS has been criticised in any case by another dialogue, namely for its aspersions to be telling the ‘truth’ about law. Postmodernism provides both a rebuff to CLS criticisms and novel problems for adherents to the rule of law.
Postmodernists criticise the rule of law as the method of ‘neutral, non subjectivist resolution of value disagreements and social conflict’ . They contrast this to their varying conceptions of the reality of legal practice; they question the ability of concepts such as the rule of law in the positivistic sense to provide value free answers, they also impliedly reject Allen’s conception of the rule of law by rejecting any sort of closed sets of morals or values. In this case the rule of law as a moral concept higher than the constitution couldn’t be tenable because any subjective appeal to that moral couldn’t be shown in a legal system to flow from any natural or shared set of morals. They reject liberalism as a ‘meta-narrative’ that chains us to our current legal system and the jurisprudential suppositions behind it . Tamanaha explicitly acknowledges that such objections ‘strike…at all substantive versions of the rule of law’ . I am unable to find any post-modern writing on Tamanaha’s pre-liberal conception of the rule of law or anything that might parallel it and am therefore forced to go to extrapolation from the general writing on postmodernism. Tamanaha points to the pre-liberal attitude that the sovereign or government officials operate within the legal system as the ‘mysterious ingredient’ of the rule of law, as far as I can see this makes no assumptions that offend either of the foregoing critiques. It makes no assumptions about the effectiveness, morality, equality, liberality or positivist nature of that legal system. Postmodernists and CLS scholars attack our standard conceptions of law which as explained in section 1 are highly tied up with those discourses view of the rule of law, however the pre-liberal concept transcends this as Tanahana explicitly states:
‘It is of no moment whether the limits on law-making are phrased in terms of natural law or customary law, or religious law, or human rights’
I would go one step further and explicitly state that whilst both CLS and postmodernism highlight the intrinsic limits that society places on our ability to be rational human-beings or construct rational laws, there is no reason to disregard the rule of law in a pre-liberal sense because it does not contain any claims to rationality.
The question was whether or not appeals to the importance of the rule of law was ‘unjustifiable idolatry’, I made it quite clear the dual meaning of this question, namely that too much emphasis had been placed on the concept or that the concept was false. As the foregoing analysis shows the claim that there can be no such thing as the rule of law is quite clearly false, a pre-liberal conception can survive the arguments of the CLS and post–modernism and adequately play a role in either of their conceptions of law. However whether excessive emphasis has been put on the role of law must certainly be answered in the affirmative. The almost global ascription to the idea of the rule of law may use the same words but means absolutely separate things in China as it does in the US. Consequently its political use seems unjustifiably excessive. The recent theoretical advancements in post-modernism and CLS seemed to have failed to really grab the general psyche like the liberal-legal tradition, for various reasons, however its concerns as I have shown certainly seem to merit a reconsideration of the rule of law and its use to cover vast tracts of legal theory.
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