Rule of Law

One of the main principles behind liberal democracy is that it operates under a suspicion of concentrated forms of power; whether by individuals, groups or government. It is a political system in which attempts are made to defend and increase civil liberties against the encroachment of governments, institutions and powerful forces in society through means of restricting  or regulating government intervention in political, economic and moral matters affecting the citizenry and increasing the scope for religious, political and intellectual freedom of citizens.

Democracy acts as a check on the rule of law. It allows individuals to control political process and protects them from arbitrary actions of government. It rests power with the people rather than an unaccountable governing power. As such, it ensures the government remains within limits while giving individuals to participate in decisions that affect his or her life.

In a liberal democracy the concept of equality means that when the law is applied, it must apply equally to all people. Both common people and their rulers are equally liable for any negligent action, crime or misdemeanour committed.

The rule of law guarantees impersonality between the multiple competing groups that constituted it. Favouritism of any one particular group ideally does not exist. Accordingly, laws should possess a generality quality in that they do not discriminate against different groups of people as well as being autonomous such that they do not represent the interest of any particular group.

Within the context of liberal democracy, the rule of law essentially represents the universal obedience of validly made legitimate laws. The classical liberal approach to illegitimacy in laws encompasses those that bring about a breach in certain fundamental human rights that liberal democracy must uphold.

Thus it can be said that the rule of law as a worthy ideal is imperative to the survival of the functionality of the society. Its’ absence would consequent to free reign to arbitrariness. Its existence complements and works in accordance to the principles of the liberal democratic society in that even if arbitrariness is not completely ‘stamped out’; it serves as a normative disallowance of arbitrariness. In comparison to other societies, namely communism, the fundamental principles of the rule of law has been undermined and thereby not as perfect. In such society, arbitrariness, to an extent, is permitted and hence the people are left with lesser protection.

A liberal society in itself is insufficient for the rule of law ideal to reach its fruition. A law may fit the formal criteria of the rule of law but still be inadequate. It should possess the following formal characteristics: public, positive, generality; in the sense that it is open in its category to bring about formal equality and is universally applied to everyone, and autonomy. The laws are expected to address broadly defined categories of individuals and acts and to be applied without personal or class favouritism. It is the generality of law that establishes the formal equality of the citizens and thereby shields them from the “arbitrary tutelage” of government. Administration must be separated from legislation to ensure generality; adjudication must be distinguished from administration to safeguard uniformity. In the liberal state, there is a separate body of legal norms, a system of specialised legal institutions, a well-defined tradition of legal doctrine, and a legal profession with its own relatively unique outlook, interests, and ideal.

The issue upon contention is that the law was not democratically made and democratically enforced. The traditional classical liberal view of the rule of law can thus be said to dissociate from democracy.

The rule of law assures every person a fair trial, an independent judiciary and consistency. The subsequent prevention of arbitrary decision removes the potentials for decisions to be made with personal or class favouritism which reinforces Dicey’s formulation of the rule of law as serving to propose equality before the law. If government does not deliver the appearance of justice, manifested in due process, in such cases, then it fails to deliver what is an essential aspect of a liberal democracy under the rule of law.

Post Liberalism, the Welfare State

The disintegration of the rule of law in post-liberal society emphasises its’ previously most perfect and complete form in liberal democracy. Post-liberalism, the welfare state, resulted in a change from formalistic to purposive style of legal reasoning, shifting from concerns of formal justice to an interest in procedural and substantive justice.  The transformation means that the application of a rule now depends on how to most effectively achieve the purpose ascribed to the rule as oppose to the formalistic process of legal reasoning and deduction for every authoritative legal choice. Consequently, the ideal of justice and uniformity in the application of general rules or the establishment of principles whose validity is independent of choices among conflicting values has been replaced by social advantage considerations.  The severity of the shift is reflected in the undermining of the relative generality and the autonomy of the law and the discrediting of the political ideals represented by the rule of law.

One of the corollaries of generality of law is the limitation of the range of facts considered relevant to the making of official choices. When more pertinent factors come into existence, the categories of classification on criteria in analogous situations will be more difficult to draw on and to maintain. Either a large area of uncontrolled discretion and individualisation subsists under the trappings of general norms, or the flexibility needed to make managerial decisions or to produce equitable results is lost in the attempts to codify the new standard.

The ideal of generality is further weakened through purposive legal reasoning and non formal justice. The process of interpretation of rules by policy-oriented lawyers is altered due to changes in circumstances and the means available to that of the decision maker. As such, the resulting instability leads to a greater fluctuation of accepted policy and hence the rule of law ideal of stability in the entitlement and obligation of individuals thus eroded.

The notion of substantive justice that arises from the welfare state also corrupts the ideal of legal generality. The rapid expansion of impermissible inequalities among social situations leads to the consequent increase in individualised treatment of each situation. This means that there will be situations whereby priorities among different groups in turn shade imperceptibly into preferences among individuals. This notion of favouritism is in great contrast to the rule of law legal maxim.

Nonetheless, the requirement of the court to take into consideration of distributive criteria forces them into “fields in which the complexity of relevant factors and the lack of widely shared standards of justice make generalisation hard to come by and to stick with”.

The relative autonomy of the law is also subverted by the aforementioned events in its substantive, methodological, institutional, and occupational dimension. The decline in the relative distinctiveness of legal reasoning is a result of judges and administrators seeking substantive ideals of different groups. These changes contribute to the undercutting of the identity of legal institutions and professions. In the end, the difference between lawyers and other bureaucrats starts to disappear.

Thus, it can be seen that the dissolution of the rule of law is a resultant effect of post-liberalism. It should be noted however, that generality and autonomy are merely ideals as expressed by the rule of law. They were never actualised even in the liberal democratic society but mere essentials that the society makes necessary to entertain. Although the rule of law is in its’ most perfect and complete form in liberal democratic society, it cannot be said its’ ideals were fully achieved. Overall, rule of law reaches fruition in the liberal democratic society as oppose to other societies only to a relative extent.