Does
the Rule of Law Protect our Liberty?
Introduction
The
rule of law is a fundamental principle in legal studies which implies that each
nation should have well defined legal institutions and laws which govern the
people and not arbitrariness.[1] In
other words, there should only be a government of law and not a government in
which man has the final say. Also, this conception provides that no person
should be above the law, not even the leaders who have been bestowed with all
the power. They can also be culpable if there is sufficient evidence pointing
to that fact.
This
principle was developed by Dicey, a distinguished legal scholar who identified
three guidelines or norms which wholly portend the rule of law. First, Dicey
stated that the legal duties of a citizen and their liability to punishment
should only be dictated by the law and not arbitrary whims of leaders or
extrapolated discretionary powers which can be against any dissidents.[2]
Secondly, he opined that in case of a dispute between a common or normal
citizen as against a government officer; the same should be ventilated in
ordinary courts. His final proposition was that the core human rights of people
should not be defined by special guarantees or decrees of leaders but should be
conferred by dint of ordinary law. Therefore, the ruling class will be
precluded from granting rights and precluding them as they please.
The
very last premise of Dicey’s proposition is what will be dealt with extensively
in this paper as it relates to the liberty of people. Liberty as mentioned is
the power of the will, in which one follows dictates of unrestricted choice and
to perform certain actions not put of coercion or duress.[3]
The debate on whether the rule of law helps to uphold and preserve individuals
has raged on for some time now and the biggest controversy that has emerged
from this discourse comes from a number of scholars who opine that the rule of
law, even if it may uphold individual liberties, it is not efficacious in doing
this. The most radical arguments on this subject hold that the rule of law to a
great extent also impedes preservation of individual liberty. These notions are
going to be examined deeply in this paper.
Property,
Authority and Criminal Law
Douglas
Hay sought to establish the correlation between Property, Authority and
Criminal Law considering the type of penal system that existed in UK in the 16th
Century. The laws in this period were excessively harsh. In fact, capital
punishment authorized to be meted with respect to over 200 different crimes.
This absurdity, as Hay explains was occasioned by the shortfalls in the
legislation covering property law which according to him had a lot of
loopholes.
The
opinion of Hay at this time was informed by the fact that at that time
political power was concentrated exclusively in the propertied people. As a
result of this, the political class was keen on safeguarding their proprietary
interests at all costs. Therefore, the stringent and barbaric laws were enacted
to criminalize many offences against property and many offences relating to
property. Given that the political class comprised of only 3% of the society,
it was imperative according to them for their opinion and ideology to outmuscle
the physical strength of the proletariat or the lower class.
In
portraying law as an ideology which was instilled in people to force them
pontificate it dearly, Douglas Hay looked at it in three dimensions. First, he posited that majesty was an
important tool employed by the regime to legitimize their actions over the
people. It was expressed through having High Court Judges visit the parish
twice a year in what was a huge festival. Secondly, the concept of justice was
either circumvented or used as a bait to have people appreciate the legal
system then. This happened in the sense that, procedural technicalities
prevailed over substantive justice in the common law era.[4]
Also, the lower class were duped to think that they could also institute
prosecutions in court when in real sense the ploy was to relay the message that
protection of property was the primary objective of the government. Finally,
the criminal law system was an ideological propaganda under the vehicle of
Mercy. Since private prosecutions were legitimized, and the people who had
property were the ruling class, it was easy for them to wield loyalty of the
people in trade for mercy and waiving of their right to sue.[5]
From
this discussion, it is very hard to come to a conclusion that the rule of law
indeed promotes and protects liberty. The situation that was prevalent in the
United Kingdom in the 16th century still haunts many jurisdictions
in the world even up to now. The gap between the rich and the poor is too wide.
And to compound the situation even further, political power is concentrated
within the rich. Therefore, if we let a few rich people exclusively legislate,
it is hard to have a law which is objective and protective for the common
person on the ground. The legislators are more inclined towards making laws
that only suit their egocentric motives. Aside from property ownership, there
may be other factors which clearly create a conflict of interests in the
capacities of political leaders. This is because; laws which preserve the
political authority and tenure of a leader are likely to manifestly tramp on
the individual liberties of their subjects. It is this revelation that leads us
to examine the effects of such defective laws on the people’s perception of the
rule of law.
Social
Banditry
Social
Banditry is an archetype created by Eric J Hobsbawm in 1959 in a bid to analyse
the crime situation and deviant behavior in the world. His analysis included an
examination of the life of Robin Hood, a legend in social banditry, who
directed his acts of violence to the elite and the rich and shared the proceeds
of such unscrupulous behavior with the poor. By doing this, Robin Hood gained
traction and popularity among the poor people who later were comfortable to
even protect him from the authorities and hide his illegal machinations from
the police. They admired his courage and even offered to aid him in case he
needed any support. Another person who thrived in this kind of social banditry
is Edward Teach who was a pirate.
These
outlaw heroes are always charismatic people who are hailed by the society which
identifies with them. However, the inception of their banditry is inaugurated
by a small action of the authorities which gives them a reason to be defiant
and engage in acts which offend the government for the benefit of their people.
Owing to their courage and perceived generosity, they gain a lot of
popularityand even go ahead to be leaders of such society to the extent that
they can even establish a revolutionary regime in that society. This chain of
events is what is characterized as the ‘Robin Hood Principle.’ It is against
this backdrop that there needs to be a critical examination of the applicability
of the rule of law even in such incongruent and unprecedented situations.
Having
previously examined the unscrupulous machinations of the ruling class to use
legislation as their boxing glove against the physical might of the lower
class; it is worth pointing out the ultimate victory and triumph of the
political class always devastates the poor people in the society. Therefore
anything that can give them even the slightest glimpse of hope of liberation is
welcome. This is how social banditry takes advantage of the situation and comes
in handy masquerading or genuinely representing itself as the only avenue
through which liberation can be achieved.[6]
The
most salient factors to consider while examining why there is perceived
legitimacy of social banditry in a society is first, the poverty index of the
society and secondly the extent to which that region has been alienated from
the rest of the nation by the central government. Since in these circumstances
the rule of law is not trusted and is associated with the oppressive regime;
the people will always appreciate any force which is either fighting the
system, or catering for their welfare regardless of how weak it might be.
Conclusion
From
the discussion above, I can safely conclude that there is a possibility that
the rule of law protects the individual liberty of people. What is in
contention though is the motive of the legislators in making these provisions. If
there is no objectivity in the minds of lawmakers, then the rule of law might
turn out to be instead oppressive to the very people it is supposed to protect.
It therefore depends on the probative value of the legislation in place. Once
the rule of law loses meaning in the eyes of the people, that society is likely
to degenerate into a state of nature, which according to Thomas Hobbes, life in
this state is cruel, harsh, brutish, nasty and short- because there is violence
all over.
REFERENCES
v Hay,
D (2006) Property, authority and the
criminal law In: Albion's fatal tree:1975 London: Olley N
v Neill
Smith (2014) Robin Hood London:
Oxford
v Cheryl
S & Katherine R (2003) The rule of
Law Sydney: Sydney Federation Press
v Bryant
G & Austin S (1998) Justice and Power
in Sociological Studies Chicago: Northwestern University Press
v Przeworski
A & Maravall J (2003) Democracy and
the Rule of Law Cambridge: Cambridge University Press
v Robert
F. Kadlec, (1987) ed., They
"Knew" Billy the Kid: Interviews with Old-Time New Mexicans Santa
Fe: Ancient City Press, 1987
v Slatta
& Karla Robinson, “Continuities in
Crime and Punishment: Buenos Aires, 1820-50,” in The Problem of Order in Changing Societies: Essays on Crime and
Policing in Argentina and Uruguay edited by Lyman Johnson, (1990) Albuquerque: University of New Mexico
Press
v John
Charles Chasteen (1995) Heroes on
Horseback: A Life and Times of the Last Gauchos Caudillos Albuquerque:
University of New Mexico Press
v Barre
Toelken (1995) Morning Dew and Roses:
Nuance, Metaphor, and Meaning in Folksongs Urbana: University of Illinois
Press
v J.
M. Beattie (1986) Crime and the Courts in
England, 1660-1800 Princeton:
Princeton University Press
v Riot, Rebellion, and Revolution:
Rural Social Conflict in Mexico, edited by Friedrich
Katz (1998) Princeton: Princeton University Press
v Richard
W. Slatta (1997) Comparing Cowboys and
Frontiers: New Perspectives on History of the Americas Norman: University
of Oklahoma Press
v http://legacy.ncsu.edu/classes/hi300001/comparebib.htm
[1] Cheryl
S & Katherine R (2003) The rule of Law
[2] Przeworski
A & Maravall J (2003) Democracy and
the Rule of Law
[3]
Black’s Law Dictionary.
[4] Robert
F. Kadlec, (1987) ed., They
"Knew" Billy the Kid: Interviews with Old-Time New Mexicans
[5] Hay,
D (2006) Property, authority and the
criminal law In: Albion's fatal tree:1975
[6] J.
M. Beattie (1986) Crime and the Courts in
England, 1660-1800
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