The Rule of Law is not a Legal Rule, but a Political and Moral Principle - Research Paper Example

 "The rule of law is not a legal rule, whether in the context of the British constitution or any other, but a political and moral principle" (Ian Loveland) It may be thought that "The rule of law is not a legal rule, whether in the context of the British constitution or any other, but a political and moral principle.” As there is no compulsion to obey the law opens the way to an easy validation of disobedience on moral and political grounds. Basically, law is contextual; as it is embedded in practice and institution, and takes its substance from existing patterns of human demeanor and relations (Jefferson Powell, 1993). To an equal degree, law is influential, meant to proceed the human good of those it serves, hence subject to variation to achieve this end. Law so conceived is a set of practical dealings for cooperative social life, using signals and authorizes to guide and conduct channels. British constitution most distinguishing features - federalism, a constitutionally well-established court, a states' upper house, legislative sanction of treaties, and various other 'checks and balances' were significant innovations, and have over and over again been copied. It was simply in the nineteenth century that Europe began engendering institutional innovations of its own: conscientious parliamentary government, the welfare state, and accountability mechanisms such as the organizational tribunal and the ombudsman. If the rule of law is the rule of the good law then to explicate, its nature is to set out a complete social philosophy. But if so the term lacks several useful functions. We have no need to be rehabilitated to the rule of law just so as to discover that to believe in it is to believe that good must triumph. The rule of law is a political pastoral which a legal system might lack or might possess to a greater or lesser degree. That much is universal ground. It is also to be persisting that the rule of law is just one of the merits which a legal system may hold and by which it is to be judged. It is not to be mystified with democracy, justice, parity, human rights of any kind or respect for persons or for the self-esteem of man. A non-democratic legal system based on the refutation of human rights, on extensive poverty, on racial isolation, sexual differences, and religious discrimination may, in principle, conform to the rations of the rule of law better than any of the legal systems of the more progressive Western democracies. This does not mean that it will be better than those Western democracies. It will be an infinitely worse legal system, but it will outshine in one respect: in its consistency to the rule of law (Dworkin 1986). 'The rule of law' means exactly what it says: the rule of the law. Taken in its broadest sense this means that people must obey the law and be ruled by it. But in political and legal theory of moral principle that has come to be read in a narrower sense, that the government will be ruled by the law and subject to it. The idyllic of the rule of law in this sense are frequently expressed by the phrase 'government by law and not by men'. No sooner does one use these formulas than their insignificance becomes evident. Surely government should be both by law and by men. It is said that the rule of law means that all government action should have foundation in law, should be authorized by law. Actions not authorized by law, cannot be the actions of the government as a government. They would be lacking legal effect and often illicit. It is true that we can detail a political concept of government which is different from the legal one: government as the setting of real power in the society. It is in this sense that one can say that Britain is ruled by The City or by the trade unions. In this sense of 'government' it is not a tautology to say that government must be based on law. If the trade union regulating a country breaks an industrial relations law so as to impose its will on the Parliament or if the President or the F.B.I. permits burglaries and combine to deprave justice they can be said to infringe the rule of law. But here 'the rule of law' is used in its original sense of deference to law. Powerful people and people in government, just like anyone else, should obey the law. There is more to the rule of law than the law and order explanation allows. It means more even than law and order practical to the government. We are concerned with government in the legal sense and with the commencement of the rule of law which affects to government and to law and is no mere application of the law and order formation. The setback is that now we are back with our initial puzzle. If government is, by definition, government approved by law the rule of law seems to amount to an empty tautology, not a political ideal. The solution to this conundrum is in the difference between the professional and the lay sense of 'law'. For the lawyer something is the law if it convenes the conditions of legality laid down in the system's rules of detection or in other rules of the system. This comprises the constitution, parliamentary legislation, ministerial set of laws, policemen's orders, the regulations of restricted companies, conditions imposed in trading licenses, etc. To the layman the law consists merely of a subclass of these. To him the law is fundamentally a set of open, general, and comparatively stable laws. Governments by law and not by men, are not a tautology if 'law' means general, open, and comparatively stable law. Indeed, the danger of this understanding is that the rule of law might set too strictly a requisite, one which no legal system can gather and which embodies very little virtue. It is in any way unthinkable that law can consist only of general rules and it is extremely detrimental that it should. Just as we require government both by laws and by men, so we require both general and particular laws to perform the jobs for which we need the law. The principle of the rule of law does not refute that every legal system must consist of general, open, and established rules and particular laws (legal orders), a fundamental tool in the hands of the executive and the judges alike. As, what the doctrine needs is the inability of particular laws to general, open, and stable ones. It is one of the significant principles of the doctrine that the making of particular laws must be guided by open and moderately stable general rules (Finnis 1980). Moreover, the legal system has usually been considered as having a primary moral role in remedying defects in the relevance of coercive sanctions prevalent in the state of nature, defined as the absence of federal legal institutions (legislatures, courts, executives, etc.). Thus, in the absence of a legal system, the enforcement of moral principles will lean to be chaotic and irrational. Distressed families or clans will seek spiteful reprisals in excess of the requirements of moral and just penalties; either the innocent might suffer or the guilty might suffer more or less than is proper. The very judgment that punishment is proper will be contaminated with partiality, with the distressed party acting as judge, jury, and assassins. Finally, those lacking some access to coercive power, having no coalition with people who might right wrongs suffered, will have not rectified at all. Such a system of enforcing moral demeanor is irrational, and in effect excessive and immoral. However, the ethical function of the legal system is to cure such defects. Thus, an advanced legal system has legislative institutes which specifically define conduct which is prohibited at risk of the obligation of coercive sanctions. Judicial institutions give an independent, disinterested forum to judge whether a wrong has been done. Executive institutions gave an independent agency for commanding sanctions on the terms provided by law and applied by the judges. Coercive power, being the control of the state, is in principle evenly available to all citizens, though their lack of private power, wealth, or status. Legal institutions, so interpreted, are themselves subject to moral principles prevailing the obligation of coercive sanctions, in addition to the restraint that they are suitably limited to the enforcement of the moral principles of compulsion and duty (Robert P. George, 2001). Particularly, the coercive legal institutions of the criminal law are to be administrated by the principles of justice, that is, the principle of greatest equal autonomy and prospect, and the principle of vindicated inequality (inequalities are defensible only if they result in a higher level of aspiration satisfaction for all classes, and exploit the desire satisfaction of the least advantaged). Thus, the original contractors would, concur to such principles as they secure a highest lowest. In the present context, the subsistence of such constraints on the exercise of coercive power is a significant condition of the propriety of using coercion to inflict the moral principles of compulsion and duty. As some of the values added become contentious, it will weaken support for the notion of the rule of law. There is a range, not a clear break, between 'widely-accepted' and 'controversial' principles. Though some principles such as 'universal male-female suffrage' might seem uncontroversial, as late as 1928 the Privy Council had to rule on the legality of assigning women to the British Senate. They rejected arguments that the 'persons' whom the Governor-General was authorized to appoint under Section 24 of the British North America Act 1867 were apparently those of the male gender only. 1648 is usually accepted as the crucial watershed - not least as the Treaty overtly recognized certain key features of sovereignty. Certainly, economic, political, legal, and ideological forces had long been at work and the job was not finished with that one pact. Articles 41, '…sentences pronounced during the war about matters entirely secular, if the defect in the actions be not fully manifest…shall not be…void; but [their] effect shall be suspended until…reviewed…in a proper court…'; 46, law and justice to be administered in all the Emperor's hereditary provinces 'without any respect as to' religion - at least for Catholics and Lutherans; and 64 '…to avert for the future any differences arising in the politick state, all and every one of the Electors, Princes and States of the Roman Empire, are so established and set in their ancient rights, prerogatives, [etc]…that they never can or ought to be battered therein by any whomsoever upon any manner of pretence' Treaty of Westphalia (Münster, 24 October 1648). In originating the moral principles of obligation and duty, conventionality to them did not entail substantial sacrifices of one's interests and that the application of sanctions for originality did not comprise an undue burden. We might now intensify and better understand that latter enigmatic remark. The application of compulsion does not comprise an undue burden if the sanctions applied satisfy the principles of justice. Thus, the criminal standards should precisely describe the conduct forbidden, so that people have fair warning. Conditions of accountability should require the performance of a voluntary act or exception by the agent, and the subsistence of mental states of intention, irresponsibility, or negligence which illustrate a fair opportunity to have evaded the sanctions. Insanity and coercion must be recognized as defenses to criminal liability, in that people there need either the competence or the fair freedom to conform their conduct to law. First, the foundation of the firm proscription on punishment of the innocent is clear. The innocent, not being morally liable, are not proper objects of criminal penalties, nor is their punishment attuned with the principle of equal liberty and opportunity. Second, we can now understand the moral basis of the thought of proportionality between relative gravity of crime and comparative severity of sanction. Punishment and the criminal law, being intentional to enforce the requirements of certain moral principles, should reflect the moral significance of offenses punished. Since the moral principles of compulsion and duty do replicate such different moral weights, punishments accordingly must vary with the type of offense committed. In the same way, within any kind of offense, diverse levels of punishment must attach to diverse levels of culpability; for instance, intentional killing must be subject to more punishment than negligent killing. Moral culpability not simply varies in such cases, but also the principles of justice rationalize a higher level of sanctions, since conduct is more willingly undertaken in the case of intent than negligence. Third, this analysis elucidates the crucial importance of moral responsibility in the criminal law, both as a condition of liability and as a constituent in sentencing discretion. The criminal law, planned to insist on moral principles, must reflect the considerations of moral culpability that those principles entail. Accordingly, within the constraints recognized by the principle of proportionality calling for a certain explicit range of punishment for a convinced kind of offense, there is an appropriate place for fair sentencing prudence, which individualizes on the foundation of moral culpability. Among the considerations that might be taken into account are that T. H. Green described when he spoke of the fair opportunity not to be a criminal. Surely, we think in a different way of the moral culpability of a robbery by an advantaged upper-middle-class businessman than we do of the same robbery by someone from a deprived background, involving, as it often does, defective moral training, a broken home, economic aggravation and fear, and the stigma of prejudice and economic seclusion. To the degree that involvement with the criminal law turns on such economic factors, the effect is accurately assessed in terms of the principle of equal opportunity and the standard of justified inequality. It obviously contravenes equal opportunity if fundamental institutions do not permit disadvantaged classes a fair opportunity to extend their conception of their rational good and the capability to achieve it, without the enticements and frustrations of lower-class life leading to a life of crime. The principle of reasonable inequality in addition clearly needs that institutions are so arranged that they will not have these comprehensive effects on the worst-off classes. Given such injustice, sentencing prudence properly might take it into account (Greenawalt, K, 1987). Finally, the proper role of prevention, protection, and rehabilitation considerations in the criminal law. It conserves the central place of these deliberations among the proper aims of the criminal law. The point of the criminal law in this view is specifically to get people to act on certain moral principles personified in law, including explicit deterrence of those who break the law, general preclusion of those tempted to break it, protection of society, and rehabilitation of wrongdoers. The only restraints of justice are that such deliberations are to be given weight only pursuant to the rations of the principles of justice and the principles of morality forced, not punishing the innocent, viewing proportionality between punishment and significance of offense, and the like. Once these deliberations of justice are accorded their fundamental weight, preclusion considerations and the like come appropriately into play. Certainly, considerations of special and general preclusion are essential conditions for the fair obligation of punishment. The point of punishment being to secure compliance to and justification of moral principles, penal laws should originate punishments that are likely to put off criminal behavior by the citizenry usually and by criminals. Otherwise, the obligation of punishment by such laws is meanly unnecessary and ethically forbidden. Thus, more specific and determinate general theories of the nature and function of law must be viewed with distrust, at least when put forward to manage practice. Finally, we consent that law itself imposes no absolute moral claims, though the rule of law is a political ideal valuable of respect and thus to be weighed in any individual's pondering about what he or she finally should do. This jurisprudential view tumbles down traditionally from philosophical pragmatism, which at least in its most important current appearance has pervasively secular and naturalistic presuppositions that several religious believers cannot accept. It has been developed by legal thinkers in whose jurisprudence religious formations play no considerable role. But nothing in it is contrary with belief in a transcendent God who rules over a formation in which human beings, though fallen, may know supreme truths. References: Jefferson Powell; The Moral Tradition of American Constitutionalism: A Theological Interpretation, Duke University Press, 1993 Robert P. George; What Is Law? A Century of Arguments, First Things: A Monthly Journal of Religion and Public Life, April 2001 Dworkin, R., Law’s Empire (Cambridge, MA: Harvard U. Pr., 1986). Finnis, J., Natural Law and Natural Right (New York: Oxford U. Pr., 1980). Greenawalt, K., Conflicts of Law and Morality (New York: Oxford U. Pr., 1987). Treaty of Westphalia (Münster, 24 October 1648). Read More