What Exactly Is The Law?
The term “law” has been used in a wide variety of ways. In the first place, there are scientific laws, or what are called “descriptive laws.” These describe regular or necessary patterns of behaviour found in either natural or social life.
The most obvious examples are found in the natural sciences—for instance, in the laws of motion and thermodynamics advanced by physicists.
But this notion of law has also been employed by social theorists in an attempt to highlight predictable, even inevitable, patterns of social behavior.
This can be seen in Engel’s assertion that Karl Marx uncovered the “laws” of historical and social development and in the so-called “laws” of demand and supply, which underlie economic theory.
An alternative use, however, treats the law generally as a means of enforcing norms or standards of social behavior. Sociologists have thus seen forms of law at work in all organised societies, ranging from informal processes usually found in traditional societies to the formal legal systems typical of modern societies.
By contrast, political theorists have tended to understand the law more specifically, seeing it as a distinctive social institution clearly separate from other social rules or norms and only found in modern societies.
In a general sense, the law constitutes a set of rules, including, as said earlier, commands, prohibitions, and entitlements.
What distinguishes the law from other social rules?
- First, the law is made by the government and so applies throughout society. In that way, the law reflects the “will of the state” and therefore takes precedence over all other norms and social rules. For instance, conformity to the rules of a sports club, church, or trade union does not provide citizens with immunity if they have broken the “law of the land’.
- Second, the law is compulsory; citizens are not allowed to choose which laws to obey and which to ignore because the law is backed up by a system of coercion and punishment.
- Third, the law has a “public” quality in that it consists of published and recognised rules. This is, in part, achieved by enacting laws through a formal, and usually public, legislative process. Moreover, the punishments handed down for law-breaking are predictable and can be anticipated, whereas arbitrary arrest or imprisonment has a random and dictatorial character.
- Fourth, the law is usually recognised as binding upon those to whom it applies, even if particular laws may be regarded as “unjust” or “unfair.” Therefore, the law is more than simply a set of enforced commands; it also embodies moral claims, implying that legal rules should be obeyed.
What is the Rule of Law?
The “rule of law” is a constitutional principle respected with almost devotional intensity in liberal-democratic states. At heart, it is quite simply the principle that the law should “rule,” that it should provide a framework within which all citizens act and beyond which no one, neither private citizen nor government official, should go.
The principle of the “rule of law” developed out of a long-established liberal theory of law. Since John Locke, liberals have viewed the law not as a constraint on the individual but as a necessary guarantee of that liberty. Without the protection of the law, each person is constantly under threat from every other member of society, as indeed they are from him.
The danger of unrestrained individual conduct was graphically represented by the “barbarism” of the “state of nature.” The fundamental purpose of the law is, therefore, to protect individual rights, which, in Locke’s view, meant the rights to life, liberty, and property.
The supreme virtue of the “rule of law” is therefore that it serves to protect the individual citizen from the state; it ensures a “government of laws and not of men.” Such an idea was enshrined in the German concept of the Rechtsstaat, a state based on law, which came to be widely adopted throughout continental Europe and encouraged the development of codified and professional legal systems.
The “rule of law”, however, has a distinctively Anglo-American character. In the USA, the supremacy of the law is emphasised by the status of the US Constitution, by the checks and balances it establishes, and by the individual rights outlined in the “Bill of Rights.” This is made clear in the Fifth and Fourteenth Amendments to the Constitution, which specifically forbid the federal or state government from denying any person life, liberty, and property without “due process of law.”
The doctrine of “due process” not only restricts the discretionary power of public officials but also enshrines several individual rights, notably the right to a fair trial and equal treatment under the law. Nevertheless, it also vests considerable power in the hands of judges, who, by interpreting the law, effectively determine the proper realm of government action.
By contrast, the UK conception of the rule of law has seen it as typical of uncodified constitutional systems, within which rights and duties are rooted in common law and laws derived from long-established customs and traditions.
Dicey’s View on “Rule of Law”
The classic account of such a view is found in A.V. Dicey’s Introduction to the Study of the Law of the Constitution (1885–1939).
In Dicey’s view, the rule of law embraces four separate features –
No one should be punished except for breaches of the law
This is the most fundamental feature of the rule of law because it distinguishes between rule-bound and arbitrary government, implying that where the rule of law exists, the government cannot simply act as it pleases; for example, it cannot punish citizens simply because it disagrees with their opinions or disapproves of their behavior.
Equal Subjection to the Law
The rule of law requires what Dicey called “equal subjection” to the law, more commonly understood as “equality before the law.” Simply put, the law should show no regard for individuals. It should not discriminate against people on grounds of race, gender, religious creed, social background, and so forth, and it should apply equally to ordinary citizens and government officials.
Necessity of Punishment for Law Breaking
When the law is broken, there must be a certainty of punishment. The law can only “rule” if it is applied at all times and in all circumstances; the law rules only selectively when some law-breakers are prosecuted and punished, while others are not.
Rights and Liberties should be rooted in “Ordinary Law” of Land
Finally, the rule of law requires that the rights and liberties of the individual be embodied in the “ordinary law” of the land. Dicey hoped that this would ensure that when individual rights are violated, citizens can seek redress through the courts.
Although Dicey believed that the rule of law was typical of the UK system of government and those modelled upon it, in several respects, the UK offers a particularly poor example of the rule of law. For instance, though Dicey strove to reconcile the two, it can be argued that parliamentary sovereignty, the central principle of Britain’s uncodified constitution, violates the very idea of the rule of law. It is difficult to suggest that the law ‘rules’ if the legislature itself is not bound by any external constraints.
This problem has been exacerbated by the growth of executive power and the effective control which the government of the day exercises over Parliament, made possible by party discipline.
This encouraged Lord Hailsham (1976) to describe the UK system of government as an “elective dictatorship”. Moreover, despite the introduction of the Human Rights Act in 1998, Parliament, rather than the courts, still has the primary role in determining the extent of civil liberties. The establishment of a meaningful rule of law in the UK may, therefore, require far-reaching constitutional reform, including the codification of the constitution, the introduction of an entrenched Bill of Rights, and the construction of a clear separation of powers between the legislature and executive.
In its broad sense, the “rule of law” is a core liberal-democratic principle, embodying ideas such as constitutionalism and limited government to which most modern states aspire. In particular, the rule of law imposes significant constraints upon how the law is made and how it is adjudicated.
For example, it suggests that all laws should be “general” in the sense that they apply to all citizens and do not select particular individuals or groups for special treatment, good or bad. It is, therefore, vital that citizens know “where they stand”. Laws should, therefore, be precisely framed and accessible to the public. “Retrospective legislation,” for example, is clearly unacceptable on such grounds, since it allows citizens to be punished for actions that were legal at the time they occurred.
In the same way, the rule of law is usually thought to be irreconcilable with cruel and inhuman forms of punishment.
Above all, the principle implies that the “courts” should be impartial and accessible to all. This can only be achieved if the “judiciary,” whose role it is to interpret the law and adjudicate between the parties to a dispute, enjoys independence from the government.
The “independence of the judiciary” is designed to ensure that judges are “above” or “outside” the machinery of government. The law, in other words, must be kept strictly separate from politics.
Critics of the “Rule of Law”
Nevertheless, the rule of law also has its critics. Some have, for instance, suggested that it is a truism to say that the law’s “rules” may acknowledge nothing more than that citizens are compelled to obey them. In this narrow sense, the “rule of law” is reduced to the statement that “everybody must obey the law.”
Others have argued that the principle pays little attention to the content of the law. Some have therefore argued that the rule of law was observed in the Third Reich and the Soviet Union simply because oppression wore the cloak of legality. Even its keenest defenders will acknowledge that although the rule of law may be a necessary condition for just government, it is not in itself a sufficient one.
Marxist Critics to the “Rule of Law”
However, Marxist critics go further. Marxists have traditionally regarded the law not as a safeguard for individual liberty but as a “means for securing property rights” and “protecting the capitalist system.”
For Marx, the law, like politics and ideology, was part of a “superstructure” conditioned by the economic “base”, in this case, the capitalist mode of production. The law thus protects private property, social inequality, and class domination.
Feminist Critique
Feminists have also drawn attention to biases that operate within the system of law—in this case, biases that favour the interests of men at the expense of women as a result, for instance, of a predominantly male judiciary and the legal profession.
Multicultural Critique
Multicultural theorists have, for their part, argued that the law reflects the values and attitudes of the dominant cultural group and so is insensitive to the values and concerns of minority groups.