The Rule of Law and Its Virtue - Essay Example

Are the principles of the rule of law as laid out by Raz The Rule of Law and its Virtue' 1977, 93 LQR) a satisfactory explanation of the rule of law The changes ushered into the British legal system ride on the crescent wave of voices and policies in the European community that seek to uphold the primacy of human rights and due process, particularly when made vulnerable by antiquated state structures and legal institutions. The clear trend has been to favor the sanctity of individual liberties over the preservation of traditionalist and vanguardist policies. As stated by O'Donnell (2004): "a truly democratic rule of law ensures political rights, civil liberties, and mechanisms of accountability which in turn affirms the political equality of all citizens and constrain political abuses of state power." (p.32) This, however, is by no means of recent vintage. In fact, the Rule of Law has a long, rich and colorful history. Joseph Raz, one of the foremost legal thinkers of his time and a firm proponent of the Rule of Law in his seminal work "The Rule of Law and its Virtue" in 1977, may trace the roots of his theory to generations upon generations of legal thinkers, all of whom have made unique contributions to the principle of the Rule of Law. Principles of justice and ethics and virtue underlie much of the discussion on the Rule of Law. Illustrative of the wide range of ideas covering these principles is Plato and Machiavelli, albeit of different times. Platonic philosophy is hinged on moral virtue as practiced by just rulers. Man served the State and hence, ethics and politics were the same. This is to be contradistinguished with Machiavellian principles, which states that the State should serve the people. That is its whole reason for being. Under Machiavelli's concept, a ruler is justified in doing whatever needs to be done to maintain the country, even if his actions may be deemed unjust. " This is a complete opposite of the Platonic model which argues that a ruler may never be unjust. It is immoral and unethical, maintains Plato, for a ruler to rule solely by might. On his part, the great thinker Cicero maintains that there was no distinction between that which was morally good and what was useful to man. To quote from Cicero, "Virtue is a habit of the mind, consistent with nature and moderation and reason." [Rhetorical Invention (bk. II, sc. LIII)] Much of this has been influenced by Platonic philosophy which is hinged on moral virtue as practiced by just rulers. As such, the concept of government and duty has underlain much of ancient law and has aided the people of the time in charting their destiny Indeed, the broadest theme in the current conception of the rule of law is that the government restricted by law. This is consistent with the idea of the Rule of Law propounded by A.V. Dicey in his book "Introduction to the Study of Law of the Constitution" (1885). Dicey posited the following propositions. Firstly, no man could be punished or lawfully interfered with by the authorities except for breaches of law. In other words, all government actions must be authorised by law. Secondly, no man is above the law and everyone, regardless of rank, is subject to the ordinary laws of the land. Thirdly, there is no need for a bill of rights because the general principle of the constitution is the result of judicial decisions determining the rights of the private person. Joseph Raz, on the other hand, espouses eight guiding principles for the rule of law. 1. All laws should be prospective, open and clear; 2. Laws should be relatively stable; 3. The making of particular laws must be guided by open, stable, clear and general rules; 4. The independence of the judiciary must be guaranteed; 5. The principles of natural justice must be observed; 6. The courts should have review powers; 7. The courts should be easily accessible; and 8. The discretion of crime prevention agencies should not be allowed to pervert the law. Indeed, there is much that should be lauded with Raz' principles of the law inasmuch as much as they are still applicable in this day and age. There is a clear bias for human rights, and this has animated much of the laws and legal principles in the present-day context of the United Kingdom. Under Raz' conception, due process and procedural fairness play an important part in the Rule of Law. Much premium is placed on the rights of the accused, situated within the larger framework of human rights and criminal justice. Criminal justice in any mature society always involves a balance of two competing interests: the need to protect the rights of the accused, and the need to combat crime and instill peace and order in society. "Legally, a crime is any act or omission proscribed by the criminal law and thus punishable by the state through the criminal justice system" (Davies, Croall and Tyrer, 2005) Legal systems in the civilized world - whether in civil or common law jurisdictions -- have, at least in theory, given primacy to the rights of the accused, understanding that ambiguity should be resolved in his or her favor. In practice however, we see how police officers routinely violate the human rights of those they apprehend. The implicit message is that these are criminals anyway - thugs, petty thieves, gangsters, punks, drug addicts, alcoholics - and they are doing society a favor by treating them brusquely. An oft-heard justification is that you cannot treat hardened criminals with kid gloves or you will be perpetrating crime even further. But this argument has no regard for the fact that even hardened criminals are covered by the human rights guarantees in the Constitution and in human rights conventions. Human rights are inalienable and imprescriptible, and they apply to everyone. On the other hand, the desire to preserve society and prevent crime is equally valid. It would seem that society has been ill-equipped to come up with answers and solutions to address it definitively (Norrie, 1996). It is imperative however to disabuse oneself of the simplistic approach that is often used when analyzing crime rates. Many are wont to believe that a rise in crime rates signifies a social problem, and a decrease is something to be lauded. In fact, a rise in recorded crime rates could actually mean better police efficiency, a willingness of the victims to come forward, and a desire by society as a whole to condemn criminals. The significance of making this initial assertion is explained by Matthews (1995) as follows: Making this point at the outset is important for two reasons: First it helps to free us from the disarming grip of pessimism that is often associated with the assertion that increases in crime and inevitable and undesirable. Second, it reminds us that crime is a social construct and is the outcome of a complex process of action and reaction. Crime is reducible neither to an act or to a biography. Rather it is a process that requires both an offender and a victim - direct or indirect - to interact within a milieu of formal and informal constraints. The parliament is vested with the power to create laws that have coercive effect. It is essentially in their province to come up with regulations to maintain order and peaceful conduct in the society, while ensuring that a human rights framework is always in place. Over the past two decades, there has been a steady stream of legislation, marking the evolution of Criminal Justice as it is known in the present time. Indeed, the constant changes in the Criminal Justice Act reflects the constantly changing public mindsets on crime and its concomitant issues. There has been some criticism to the Rule of Law, coming in large part from the Critical Legal Studies (CLS) scholars. Critical Studies seeks to dismantle hegemonic structures in society by first stripping them of their seemingly-benign coverings. Critical legal studies (CLS), for instance, a branch of Critical Studies, does away with the all-too-convenient givens of a legal system - that there is but one set of "correct" rules and that legal decisions are but logical outcomes of tested principles that are empirically-replicable (Altman, 1986). It aspires to expose the ideological content of the law obscured by layers upon layers of social conditioning by demonstrating how the large areas of legal indeterminacy provide fertile ground for the cooptation of the legal system to reinforce existing power arrangements. Many have posed the question of whether or not the Rule of Law is still applicable in the United Kingdom, given the recently passed anti-terrorism legislation. The Anti-Terrorism Act of 2001 was passed by the Parliament of the United Kingdom in November of 2001, a mere two months after the historic 9-11 attacks on the World Trade Center in New York City. Criticized by many for the undue haste in its passage, with concerns of political pressure being raised, the law in its original form contained passages that human rights groups deemed to be violative of established human rights principles. Amidst the outrage surrounding the 911 attacks, the Anti-Terror Law was heralded as a measure to combat the worldwide phenomenon of terrorism and to arrest its spread and development. Legal scholars and free speech advocates, however, unite in condemning the law for trampling constitutionally-protected liberties. There is also the possibility that the law might give rise to or at least encourage racial profiling, particularly the provisions on proscription of terrorist organizations. It might further alienate minority groups and exacerbate the political violence by radicalizing "moderate" groups. Human rights advocates scored a victory when the Law Lords ruled that a provision in the Law allowing the indefinite detention of foreign terrorist suspects was contrary to human rights principles. Lord Nicholls of Birkenhead, in his ruling, said: "Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law." This decision was reached when nine detainees lodged their appeal before the Court. However, concerns on free speech and freedom of association still remain. And yet, the rule of law is still very much flourishing in the United Kingdom, particularly in light of the Constitutional Reform Act of 2005 that impacts greatly on the human rights project, specifically the right of a party-litigant to an impartial trial. First, the Act strengthens judicial independence and insulates judicial appointments and decisions from the vagaries of politics; and second, the Act strives to eliminate judicial impunity. The harmonization of these two policy goals, it is posited, is what makes for a more stable legal order in consonance with the needs and visions of the 21st century. The question raised by Fallon (1997) is significant: "Should invocations of the rule of law be dismissed as empty rhetorical appeals to an ideal whose time has passed" (p. 4) It cannot be denied that the reforms it has introduced bodes well for a more stable and more responsive legal system. Indeed, it demonstrates a more marked sensitivity to the need to uphold the basic principles that animate and underlie the mature and robust British democracy. It reinforces the notion of the Rule of Law as conceptualized by Dicey and Raz, even at this age when more importance is placed on curbing terror. It is a departure from the past, yes, but more importantly, it is a return to what truly matters - fundamental freedoms, the highest standards of fairness, and the law as a reflection of the aspirations of its citizens. References Altman, A. (1986) Legal Realism, Critical Legal Studies and Dworkin. Philosophy and Public Affairs, vol. 15, no. 2. 217-244. Davies, M., Croall, H. & Tyrer, J. An Introduction to the Criminal Justice System in England and Wales. London: Pearson Longman. 2005. Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Fallon, R. (1997) The Rule of Law as a Concept in Constitutional Discourse. Columbia Law Review, Vol. 97, No. 1. , pp. 1-56. Grey, C. & Willmott, H. (2005), Critical Management Studies, USA: Oxford University Press. Matthews, R. "Crime and Its Consequences in England and Wales. Annals of the American Academy of Political and Social Science. 1995. Norrrie, A. "The Limits of Justice: Finding Fault in the Criminal Law". The Modern Law Review, Vol. 59, No. 4 (Jul., 1996), pp. 540-556. Raz, Joseph. The Authority of Law. Oxford University Press: USA. Read More