Does the rule of law protect our liberty?

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 16^th 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 16^th 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

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[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