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One of the fundamental concepts of political morality around the globe is the Rule of Law. John Locke believed that the rule of law was crucial because it established guidelines for regulating individuals. It is a crucial tenet of modern Western democracies, and most of the time, people are forced to accept it as truth without inquiry. The Rule of Law is a set of established rules that govern a country's citizens' use of authority and place restrictions on it. It maintains that a government should carry out its function within the framework of law and that it should show accountability through law when there is a demonstration of illegal action by those in power. The Rule of Law consists of many principles that are procedural and formal in nature and these address how a community is governed. The formal principles of the Rule of Law entail clarity, generality, public perspective and stability of the norms that govern social issues. The procedural principles, on the other hand, include the process required to administer or the institutions such as courts that help in the administration of the laws. Besides, the Rule of Law also contains substantive ideas such as the presumption of respect and liberty in connection with the private property. However, the primary role of the rule of law is for the government and citizens to abide by the standard of generality, equality, and certainty.
Despite the extensive use of the rule of law in modern democracies in Western Europe, it has been castigated for failing to stop some of the worst behaviours of people or governments. Some critics of the rule of law such as Marxist believed that the law is a legitimate ideology that veneers class-based hegemonising purpose of the law. Other critics such as the feminist, perceive the generality and equality of the rule of law as merely serving to perpetuate ‘maleness’ of law as well as the disregard of the law that promoted oppression of women in their private sphere. Furthermore, studies have shown that the rule of law has encouraged conflicts in the contemporary societies, for instance, the struggles between the desire to in community and need to be free. Perhaps sociological criticism is the most fundamental criticism of the rule of law has turned out to be socially and politically outdated. The sociological criticism claims that the rule of law has no longer have its prescriptive and descriptive power in handling the affairs of the postmodern state. The critics argue that the rule of laws was created in the nineteenth century based on the principle of laissez-faire economy, which does not apply in the modern world. This paper analyses the criticism leveled against the rule of law and the extent in which the rule of law need to be changed and adapted to the modern society.
Criticisms Levelled against the Rule of Law
One major criticism of the rule of law is that it is capable of creating a class of ruling elites that have the power to manipulate through law. The rule of law itself suggests that it is sovereign or a ruler in the social set up and that no given branch of the government can rise above the laws passed by political officials. In some cases, allow a government to put aside individual rights when it finds it so appealing to do so and particularly in anti-terrorism legislations. The similar effect was witnessed in Kable v Director of Public Prosecutions (NSW) (1996) where the Parliament of Australia passed legislation to extend the detection period of Kable even after his sentence had expired. The rule of law reflected the social morals, and in most western nations, they are pre-established, neutral, objective and formalized. It is thus meant to promote equality under the law. However, because the rule of law promotes procedural justice, it allows those with affluence in the society and particularly the political class to manipulate it to their benefit. Besides, the rule of law is indeterminate and therefore has no clear objective. Subsequently, it cannot serve as an effective barrier to the abuse of power by those in authority or those in government because it is the power that structures the society and not the law that determines the results of legal issue. In most cases the interpretation and enforcement of the law are carried out by the ruling class, the rule of law only legitimized the existing power structures and their relations.
Furthermore, sociological scholars such as Marxist have criticized the rule of law as the mere ideology of dominant class and not a representative of the social ideas as a whole. According to Marxists, an ideology refers to human consciousness or knowledge. They argued that knowledge was an ideology on the basis that it is an outcome of social reality and that the rule of law was merely a type of social consciousness and an ideological construct developed by individuals in the society on a given material matter of life. However, Marxist state that “ ideological does not refer to the falsity or untruth of the rule of law, it merely accepts the rule of law as a way of understanding law in Western societies that is contingent on the history, politics, and production of that community.” Furthermore, they claim that, as a social conscious is neutral and stipulate the legal rights, equality, and freedom. However, the trustworthiness and content do not prevent it from being human ideas. The Marxist also believed that the rule of law originated from the dominant class and not from the society as a whole because they originated from the social elites. These laws were viewed as universal, valid and rational. These ideologies were considered as applicable to all irrespective of status Referring on the ideology, the Marxist state “a solution in mind to contradictions which cannot be solved in practice; it is the necessary projection in the consciousness of man’s practical inabilities.” They criticize the rule of law on the basis that it is incoherent as well as contradictory though it attempts to cover over the real conflicts inherent in it.
Moreover, the rule of law is criticized by formality and contradictions. The opponents of this law state that it creates a limitation for judges when making decisions. The law follows certain decorum set by the experts in legislation and this prevent judges from using deciding a case according to their wishes. Even though the formalism preserves the difference between law and politics, it leads to a lack of autonomy and neutral mode in legal reasoning. The critical legal studies deny autonomy of the legal system by stating “the idea that there is an autonomous and neutral way of ‘legal’ reasoning and rationality through which legal specialists apply the doctrine in concrete cases to reach results that are independent of the expert’s ethical ideals and political purposes.” It is therefore difficult for judges to provide independent, rational moral decision on their own but rather must depend on the ethics of the specialist and the political motives of the lawmakers. A similar case occurred in Fardon v Attorney-General for the State of Queensland (2004). Similarly, it allows judges to make legation decision that seems objective, neutral and rational yet it is not possible for them to make such decisions. The rule of law is also contradictory in the sense that it cannot produce any single non-contradictory decisions. The law has therefore failed to achieve it first tenet of legal certainty that state that it should lead to an agreeable decision. The lack of determinate outcome of the regulation is due to different views that the enforcers of the same laws have while implementing them, for example, altruism vs. individualism, objectivity vs. subjectivity and community vs. autonomy. The contradiction was seen in decisions made in similar cases, for instance, Kable v Director of Public Prosecutions (NSW) (1996).
The rule of law is also criticized on the construction of the logic of identity and legal persons. The rule of law depends on some conception of the legal subject. The Feminist and Marxist criticized the design and attempted to show how the legal entity did not occur naturally but was a product of social influence or a product of molding from self-interested dominant class. The naturalization of the concept involves the logic identity (the ideology of sameness). The Marxist criticism was based on the individuality and autonomy of a legal person and its relation to a commodity. According, to Marxists free and equal individuals, reflects what was happening in the economic market, and it is this ideology that the equality before the law proposed by Dicey came into effect. With historical materialism in mind, Marxist believed that the legal relations were similar to relations of production. The Marxist idea of similarity between legal relations and product relations relied on the fetishism of commodities that claimed that commodity had a dominant aspect of people’s lives to the extent that even relations, which were social in nature become viewed as property or things. According to Marxist, individuals relate to one another, as owners of property in the market, and this required that they have equal status but in a non-material manner. Evgeny Pashukanis a Soviet judge echoed the same sentiment when he stated that the purpose of the capitalist law lies in the duties and rights of the legal person. The vindication of rights served to expedite a mechanism for recognizing property owner. Therefore, the Law and the legal entity fulfills the commodity form relations.
Feminist, on the other hand, criticized the rule of law on the same gender aspect. The rule of law assumes an individuals or every person to protect from intrusion. Feminist believed that the every person in the Rule of Law was a man. According to them, the construction of legal object on the Rule of law depended on the perception of individual, autonomous and ration being and particularly a person that can use his/her rights assertively in a manner that follow the rules. They thus argued that women experiences are silence in law based on the nature of the legal person. Furthermore, Feminist believed that the formal law could not consider how women were tied in the private sphere and disempowered. The rule of law only protected individuals from public powers and not individual ones and therefore does very little in addressing inequalities that women faced.
Besides, the rule of law is socially and politically outdated and fails to deal with the role of the state as manager and regulator. Many social theorists such as Weber and Kamenka argues that the liberal rule of law is now obsolete. They indicate that the social normative order has shifted significantly from the traditional and progressive nature established in the rule of law toward administrative and bureaucratic society. They claim that modern societies had a dominant type of legitimization and legal rationality, and every society has internal contradictions that separate it from the traditional order. The rule of law was based on free market mechanism promoted by the laissez-faire. However, over time the capitalism has taken shape, and social inequality has continued to take root. Thus, the increase in capitalistic societies has resulted in failure in achieving the principles of generality and legal equality of the rule of law as mentioned by Dicey. In other words, as Kamenka says “the liberal constitution (Rechtsstaat) as it emerges in his initial concept is incapable of by principle to answer the social question that it created by itself. “ The demand for equality has increased, and therefore the government needs to adapt its laws to keep up with these wants. The rise in private sector and individualism has led to the formation of classes where others have become deprived while others continue to be rich. Furthermore, the increase in the competitive market calls for states to intervene to ensure equality. As these social issues continue to grow, the country needs to move from the mere liberal functions of individualism to wealth distribution and provision of social amenities such as education, healthcare as well as other social needs. Therefore, the rule of law has failed to continue with the pace of the changing society.
Changes and Adaptation of the Rule of Law Need for Modern Society
Despite the many criticism levels against the rule of law, it should be retained based on it principle of reciprocity. However, keeping the law require either maintaining the original liberal form of the law or restructuring it to accommodate the changes in the state forms. The state has three potential directions to choose. First, it can opt to return to the liberal form of government. According to Friedrich Hayek who was the leading proponent of the approach, a return to an idealized favored aromatized form of laissez-faire was the only sure way to guarantee of free future. He claimed that the rule of law was vital for developing a society established by the law of liberty or norms, and the norms based on neutral principles of politics. Hayek believed that the original rule of law ensured maximum freedom of activities established upon neutral political situations that allowed people to coordinate their behavior. The theory recommended that the state should to focus on achieving any direct social goals with the rule of law or use it to manage its economies but should provide fundamental structures for the society. Hayek’s assertion had a huge influence on the policies and practices of the conservative in the western nations and particularly in the Nazi. Despite its broad effect on the conservative’s policies and practices, the approach is not recommendable because people need government in every aspect of their lives
Secondly, the nation has an option of abandoning the rule of law in favour of the discretion and flexibility. However, such move would eliminate the principal of reciprocity. The experience of Germany shows that eliminating the rule of law can have dire consequences. Nazi opted to abandon the law altogether in favour of a particularistic law that allowed decision makers to have the power to make their wishful decision (allow flexibility) and made Nazi compromise safety valve. The third approach was to retain the rule of law but restructure it. The direction could enable the state to continue with management economics, promote social issues of equality and preserve both general and formal law. Restructuring involves the integration of the wellbeing with the needs of general rational statutes. The state required generating organized rules of social life, but these laws should not be many and vague to the extent that they limit autonomy. The laws should be defensible, and this could function to protect social independence as well as recognize the necessity of the government in people’s lives. Therefore, the changing the rule of law through restricting would help to accommodate the needs of modern societies. Some legislation that requires changing include laws dealing with protection of whistleblowers and cyber bullying. We need changes in legislation to restrict the rise of religiosity, formation of radical groups as well as those that promote internationalism.
In conclusion, the rule of law is vital for any state. It serves as a mechanism of governance. It should apply equally to all individual, should lead to determined outcome and should apply to all persons irrespective of their position in the society. However, as a traditional law, the rule of law has failed to keep pace with the changing needs of the modern societies. It has failed to shift from the free market condition it was initially established upon to the current competitive market. It has also failed to apply equally taking into account that it represent the ideologies of few elite class in the society. Still, it has resulted to contradicting outcomes and in some case limited the freedom that judges have in making decisions. However, the rule of law remains one of the vital ways of governing the society and proponents of the law proposes that based on its principle of reciprocity it should be retained. The decision on whether to keep the law require analysis of three possible directional approaches and this involve abandoning the law altogether, continue to use it as it is or restructure it to meet changing needs of the modern societies. The best option is to restructure the rule of law to accommodate the shifts in the society.
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