Marxists examine the real nature of law in order to reveal its functions in the organizations of power and to undermine the pervasive legitimating ideology in modern industrial societies known as the Rule of Law. - Professor Hugh Collins
Law and economics has always been a complementary arrangement one assisting the other in the validation of keeping law and order. This may not always be beneficial for the whole but as an inevitable reality, order tends to not exist in poverty and economic decline . The rule of laws origins in ancient European civilisation has made it perhaps one of the most prestigious and longest running legal theory to still exist. Originally scored by Plato as “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise…” . Plato was of the understanding that a ruler was above the law, but who nevertheless had respect for its operation and enforcement . While this is different from modern understandings it adds to the constant development and expansion of the rule.
Modern interpretations can be traced back to the end of the 19th century. One of the most prevalent authorities on the Rule of Law is AV Dicey in the “Introduction to the Study of Law of the Constitution where he expounded three main principles ; “It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power… It means, again, equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts…The rule of law, lastly, may be used as a f...
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...f the rule of law then citizens can resent the system. Thus, law has an internal morality that goes beyond the social rules by which valid laws are made. Fuller’s sense of fairness in this matter involves duties involved in the social relationship between each individual and how they interact with one another.
The rule of law and its set of requirements attempted to give the specifics to which lawmakers could govern not only legally but responsibly. Not only restricting extra-legal use of power but also its practice limits injustice. Thus it is often argued that the rule of law is only instrumentally morally valuable, valuable when and to the extent that a legal system is used to purse morally valuable ends . So as such the rule of law is instrumentally valuable, drawing attention to state-atrocities and the implications it has on the government and her citizens.
Law is to country just like soil is to plants. If the soil is right and appropriate then the the plant will flourish. If laws are just and its conditions are right, then the state will benefit from it. Without an appropriate law, the state will be in complete chaos. In the same case, two different lawgivers from different nations were given the same mission: to help make their states better than it was. Solon, an Athenian archon who was elected to make Athens and its city states thrive and remove this nation from its disastrous state. On the other hand, there’s Lycurgus, a Spartan man, whose mission was to help make Sparta also a thriving nation based on his first hand experiences he had during his travels (mostly from Egypt and Crete). At the end of the day, these two lawgivers had a different notion of justice and they each dealt with social inequalities in their city in their own way.
'And each makes laws to its own advantage. Democracy makes democratic laws, tyranny makes tyrannical laws, and so on with the others. And they declare what they have made - what is to their own advantage - to be just for their subjects, and they punish anyone who goes against this as lawless and unjust. This, then, is what I say justice is, the same in all cities, the advantage of the established rule. Since the established rule is surely stronger, anyone who reasons correctly will conclude that the just is the same everywhere, namely, the advantage of the stronger.'" Plato, Republic, Book 1, 338
In legal theory, there is a great debate over whether or not law should be used to enforce morality. The sides of the debate can be presented as a continuum. At one end, there is the libertarian view, which holds that morality is an individual belief and that the state should not interfere in the affairs of the individual. According to this view, a democracy cannot limit or enforce morality. At the other end, there is the communitarian position, which justifies the community as a whole deciding what moral values are, and hence justifies using the law to enforce community values. For libertarians, judges should play a prominent role in limiting the state, while for communitarians, judges should have as small a role as possible. In between these two extremes sit the liberal egalitarians, who attempt to reconcile democratic decision-making about moral values with liberalism. The problem is made more complex when one considers that both law and morality are contested concepts. Two recent cases where this continuum can be illustrated are Canada [Attorney-General] vs. Mossap, and Egan vs. Canada. In this essay, I will attempt to explore some of the issues produced in these two cases. I will begin with a summary each case, followed by an analysis of the major themes involved. I will then place the issues in a larger, democratic framework, and explore the role of law in enforcing morality in a democracy. I will then prove how the communitarian position - as articulated by Patrick Devlin - supports the decisions given in Mossap and Egan, and how even the great proponents of libertarianism - Mill and von Hayek - would agree that the decisions were just. A conclusion will then follow.
One of the key components of the rule of law is that the law should apply to everyone equally and fairly, whether, monarch, government or citizen (Ellis 2013). As A V Dicey believed, no one should be above the law and everyone should be subject to the rule of law (Ellis 2013). Within the rule of law, there are five vital components to the operations. These include fairness, rationality, predictability, consistency and impartiality (Hinchy 2015). Fairness and rationality ensures the rule of law applies to everyone including citizens and the government. Predictability pertains that if a law is broken, the consequences will be known. Consistency, warrants consistency that the rule of law is being applied to everyone the same. Lastly, impartiality, which is an individual that decides on issues to do with the law (Hinchy 2015). The rule of law maintains consistency and equality within nations, yet there are countries where the rule of law is not common practice (Ellis 2013). Overall,
For our government to function it must be able to resolve the conflicts that arise as a result of this ‘struggle’. The rule of law is the principle that enables reconciliation and its primacy to the successful implementation of our government cannot be understated. Simply stated t...
A longstanding debate in human history is what to do with power and what is the best way to rule. Who should have power, how should one rule, and what its purpose should government serve have always been questions at the fore in civilization, and more than once have sparked controversy and conflict. The essential elements of rule have placed the human need for order and structure against the human desire for freedom, and compromising between the two has never been easy. It is a question that is still considered and argued to this day. However, the argument has not rested solely with military powers or politicians, but philosophers as well. Two prominent voices in this debate are Plato and Machiavelli, both of whom had very different ideas of government's role in the lives of its people. For Plato, the essential service of government is to allow its citizens to live in their proper places and to do the things that they are best at. In short, Plato's government reinforces the need for order while giving the illusion of freedom. On the other hand, Machiavelli proposes that government's primary concern is to remain intact, thereby preserving stability for the people who live under it. The feature that both philosophers share is that they attempt to compromise between stability and freedom, and in the process admit that neither can be totally had.
law as a creation of the rich, who, because of their wealth, own and control most of the property
This theory looks at how the sovereign and its officials created the law based on social norms and the institutions (Hart, 1958). However, hard cases such as this makes for bad law, which test the validity of the law at hand based on what the objective of the law was in the first place. The law should not be so easily dismissed just because it does not achieve justice in the most morally sound manner (Hart, 1958). Bentham and Austin understood that there are two errors in the way law is understood, what the law is and what the law should be (Hart, 1958). He knew that if law was to become what humans perceived the law ought to be, the law itself would be lost, but he also recognized that if the opposite was to occur where the law replaced morality, than any man would escape liability and there would be no retribution (Hart, 1958). This theory looks at the point of view of the dissenting judge, Justice Gray, which is that the law is what it is, even if it may conflict with morals. Austin stated that “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry (Hart, 1958).” This case presents the same conflict that Bentham and Austin addressed, that the law based on the statute of the
The first component is the desire to reprimand a person who has done wrong upon them. Humans, like animals, have self-defense mechanism. However, unlike animals, humans are capable of sympathy. Humans have a wider range of emotions. Therefore the need they feel for punishment onto the person who did them wrong depends on the severity of the act according to the “victim.” This brings us to the second point that talks about how certain rights are protected by law therefore punishable by law enforcement. Society must defend itself against those who disobey their laws in the interest of general utility among its people. The conservation of justice and of just laws preserves harmony and well being among human beings. As a result there is a very big utility interest in preserving and enforcing justice 's commands. Each person’s happiness must be held to the same standard of importance in order for this system to work. A rich man’s rights in the justice system must be no more important than the rights of the poorest man. Justice is meant to provide the overall greatest happiness to human beings. It is looking at the greater picture rather than individual
According to Aristotle, "The rule of law is better than that of any individual”, suggesting every member of society, even a ruler, must abide by and follow the law. The rule of law is linked to the principle of justice, meaning that everyone within a society (including both private citizens and government officials) are subject to the law, and that those laws are administered fairly and justly. The intention of the rule of law is to protect against arbitrary governance. It is the basic underpinning of a free society.
The strict supremacy of statute over judicial decisions and a tradition of literalism in statutory interpretation, 2. Where no legislation exists, the courts are bound by the doctrine of precedent in accordance with a strict hierarchy of judicial authority, 3. In the absence of a relevant precedent, the judges will be guided by legal principle and reasoning by analogy, and 4. There is a clear way of distinguishing the ratio of a case. A key feature of the unwritten constitution is ‘the separation of powers’.
Although there are many more modern conceptions of the rule of law, I will begin by speaking about A.C Dicey’s conception of the Rule of Law (ROL). Dicey developed three well known principles to explain how the ROL functions.
Law is a tool in society as it helps to maintain social control, promoting social justice. The way law functions in society and its social institution provide a mechanism for solutions. There are many different theories of the function of law in relation to society in considering the insight they bring to different socio-legal and criminological problems. In the discussion of law’s role in social theory, Leon Petrażycki and Eugen Ehrlich share similar beliefs in the jurisprudence of society. They focused their work on the experience of individuals in establishing meaning in their legal relations with others based on the question of what it means to be a participant in law. Jürgen Habermas presents a relationship between law and morality. From a certain standpoint, law is a key steering mechanism in society as it plays an educational role in promoting conducts, a mean of communication and it
In Plato’s Republic, the main argument is dedicated to answering Glaucon and Adeimantus, who question the reason for just behavior. They argue it is against one’s self-interest to be just, but Plato believes the behavior is in fact in one’s self-interest because justice is inherently good. Plato tries to prove this through his depiction of an ideal city, which he builds from the ground up, and ultimately concludes that justice requires the philosopher to perform the task of ruling. Since the overall argument is that justice pays, it follows that it would be in the philosopher’s self-interest to rule – however, Plato also states that whenever people with political power believe they benefit from ruling, a good government is impossible. Thus, those who rule regard the task of ruling as not in their self-interest, but something intrinsically evil. This is where Plato’s argument that justice is in one’s self-interest is disturbed. This paper will discuss the idea that justice is not in one’s self-interest, and thus does not pay.
Law is one of the most important elements that transform humans from mere beasts into intelligent and special beings. Law tells us what is right and wrong and how we, humans, should act to achieve a peaceful society while enjoying individual freedoms. The key to a successful nation is a firm, strong, and fair code of high laws that provides equal and just freedom to all citizens of the country. A strong government is as important as a firm code of law as a government is a backbone of a country and of the laws. A government is a system that executes and determines its laws. As much as fair laws are important, a capable government that will not go corrupt and provide fair services holds a vital role in building and maintaining a strong country.