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The Rule of Law: The New Leviathan?

Published online by Cambridge University Press:  09 June 2015

Olufemi Taiwo
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Extract

These are the best of times for the Rule of Law. In all parts of the world, states, governments, and individuals, have found in the rule of law, at various times, a rallying cry, a principle of social ordering that promises the dawn of a just society that its supporters in Euro-American democracies claim to be its crowning glory, or a set of practices that is a sine qua non of a good society. The pursuit of the ideal is nothing new: after all, even those states where it was observed more often in its breach always paid lip service to it. And the defunct socialist countries of Eastern Europe, while they existed, could not escape its lure even as they sought to give it a different nomenclature—socialist legality. The movement towards the rule of law has accelerated after the collapse of Soviet communism and its foster progeny in different parts of the world. Given the present momentum towards the rule of law and the widespread enthusiasm with which it is being embraced and pursued at the global level, some would consider it somewhat churlish for anyone to inject any note of doubt or caution. This is more so when such a note emanates from Marxist quarters. But that is precisely what I wish to do in this essay. Although I do not intend to rain on the rule of law’s entire parade, I surely propose to rain on a segment of it: the Marxist float. I propose to look at the issue within the context of the Marxist politico-philosophical tradition.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 12 , Issue 1: Legal Theory , January 1999 , pp. 151 - 168
Copyright
Copyright © Cambridge University Press 1999

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References

1. A representative sample will include: 1) Bob Fine, Democracy & the Rule of Law (London: Pluto Press, 1984); 2) J. Roland Pennock & John W. Chapman, eds., Marxism: Nomos XXVI (New York and London: New York University Press, 1983); 3) Piers Beirne & Richard Quinney, eds., Marxism and Law (New York: John Wiley & Sons, 1982); 4) Hugh Collins, Marxism and Law (New York: Oxford University Press, 1982); 5) Leon S. Jawitsch, The General Theory of Law. trans. H. Campbell Creighton (Moscow: Progress Publishers, 1981).

2. E. P. Thompson, Whigs and Hunters (London: Allen Lane, 1975) at 266.

3. See Martin Krygier, “Marxism and the Rule of Law: Reflections After the Collapse of Communism” (1990) 15 Law and Social Inquiry 633 at 635 [hereinafter ‘Marxism and the Rule of Law’].

4. Here I would like to differ with Belliotti who suggests that “there is not so much a Marxist theory of law as there is a Marxist unmasking of law’s alleged unsavory participation in domination and oppression.” Raymond A. Belliotti, “The Legacy of Marxist Jurisprudence” in David S. Caudill & Steven Jay Gold, eds., Radical Philosophy of Law: Contemporary Challenges to Mainstream Legal Theory and Practice (Atlantic Highlands, NJ: Humanities Press, 1995) 3 at 3.

5. I have presented a substantive general theory of law and marxism in Legal Naturalism: A Marxist Theory of Law (Ithaca, NY: Cornell University Press, 1996).

6. I was born, raised and educated in Nigeria which has been in the clutches of military rule for twenty-eight of its thirty-eight years of independence. As at this writing, it is chafing under one of the most brutal of its many dictatorships. So, in a sense, there is an irony that is embedded in my ongoing work: following Marx’s lead, as I write this, I am also engaged in other writing extolling the virtues of liberal democracy as a viable option for my homeland. But there is no contradiction here. One can embrace liberal democracy while at the same time seeking to create a world that one considers putatively superior to that of liberalism. That, as I argue momentarily, was Marx’s attitude to liberalism and law.

7. Some non-Marxist commentators have noticed this, too. See Allan Hutchinson & Patrick Monahan, “Democracy and the Rule of Law” in Allan Hutchinson & Patrick Monahan, eds., The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987) at 113–14.

8. Jeremy Waldron, “The Rule of Law in Contemporary Liberal Theory” (1989) 2 Ratio Juris 79 at 93.

9. Supra note 3 at 644.

10. Ibid. at 645. See also his reply to criticisms of this essay, “Marxism, Communism, and Narcissism” (1990) 15 L. and Social Inquiry 707 at 719–20.

11. A. V. Dicey, The Law of the Constitution 2nd. ed., (London: Macmillan, 1886) at 174.

12. Ibid. at 179.

13. Ibid. at 210.

14. If he is right, many countries of continental Europe and North America will be excluded from rule of law regimes. See Judith Shklar, “Political Theory and the Rule of Law” in Hutchinson & Monahan, eds., Rule of Law: Ideal or Ideology; Hutchinson & Monahan, “Democracy and the Rule of Law,” supra note 7.

15. Wolfgang Friedmann, Legal Theory. 5th ed., (London: Stevens & Sons, 1967) at 422.

16. Ibid. at 424; see also Wolfgang Friedmann, Law and Social Change in Contemporary Britain (London: Stevens & Sons, 1951) at 284 [hereinafter as Friedmann, Law and Social Change].

17. F. A. Hayek, The Road to Serfdom (Chicago: University of Chicago Press, 1944) at 72.

18. Ibid. at 83–84.

19. Ibid. at 84.

20. Friedmann, Law and Social Change at 282; See also Joseph Raz, The Authority of Law (Oxford: Oxford University Press, 1979) at 211.

21. Quoted in Lon L. Fuller, “Positivism and Fidelity to Law—A Reply to Professor Hart” in Joel Feinberg & Hyman Gross, eds., Philosophy of Law. 2nd ed., (Belmont, CA: Wadsworth Publishing Co., 1980) at 77.

22. Lon Fuller has argued that the law cannot serve evil purpose well. See the exchange between Fuller and H.L.A. Hart on this issue.

23. I have persisted in citing literature from the former communist states because it is important for the reader to know that in spite of the prevalence of legal nihilism in those states, there were intellectuals who managed to reflect in deep and insightful ways about the theoretical problems of law of all kinds. And we still can read them with profit even now.

24. Jawitsch, The General Theory of Law, supra note 1 at 243.

25. Friedmann, Law and Social Change, supra note 16 at 282.

26. See supra notes 8, 9 and 10.

27. Lon L. Fuller, The Morality of Law. rev. ed., (New Haven, CT: Yale University Press, 1969).

28. Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960); The Political Ideal of the Rule of Law (Chicago: University of Chicago Press, 1955), in addition to the text already cited.

29. Ernest Weinrib, “The Intelligibility of the Rule of Law” in Hutchinson & Monahan, eds., supra note 7.

30. Aristotle, The Politics trans and with an introduction, T. A. Sinclair, (Harmondsworth: Penguin, 1962) at 139.

31. Ibid. at 143.

32. Weinrib, “The Intelligibility of the Rule of Law” at 60.

33. Supra note 30 at 145.

34. Thomas Hobbes, Leviathan. ed. and intro., C. B. Macpherson, (Harmondsworth: Penguin, 1968) at 227.

35. Ibid. at 184.

36. Ibid. at 227.

37. Noel B. Reynolds, “Grounding the Rule of Law” (1989) 2 Ratio Juris 1 at 5.

38. For a discussion, see Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985) at 191.

39. As I show presently, such a view of humans or of the common good is foreign to Marx and the tradition that he inaugurated.

40. Supra note 37 at 13.

41. Supra note 30 at 143.

42. See supra note 5 at ch. 2.

43. See his discussion of the struggle over the working day legislation in England in Capital vol. 1.

44. For some criticisms of Thompson see: 1) Sol Picciotto, “The Theory of the State, Class Struggle and the Rule of Law” in National Deviancy Conference/Conference of Socialist Economists, Capitalism and the Rule of Law (London: Hutchinson, 1979); 2) Morton Horwitz, “The Rule of Law: An Unqualified Human Good?” (1977) 86 Yale L. J. 561; 3) Michael Mandel, “The Rule of Law and the Legalisation of Politics in Canada” (1985) 13 Int’l J. of Socio, of Law 273.

45. For an attempt to explicate the different senses of the Rule of Law in Thompson’s writings see Steve Redhead, “Marxist Theory, the Rule of Law and Socialism” in Beirne & Quinney, eds., supra note 1 at 332–36.

46. Thompson, supra note 2 at 260.

47. Ibid. at 265.

48. Ibid. at 266.

49. Fine, Democracy and the Rule of Law, supra note 1 at 175.

50. For Marx’s own views see, Karl Marx & Frederick Engels, Collected Works (Moscow: Progress Publishers, 1975) vol. 1 at 120, 161–62, 166, 231–32, 237, 243, 245. For an extended discussion of these aspects of Marx’s attitudes to law, see Legal Naturalism: A Marxist Theory of Law, supra note 5 at 25–28.

51. Ibid.

52. Roberto Unger, “The Critical Legal Studies Movement” (1983) 96 Harv. L. Rev. 563 at 567.

53. For a fuller case see the final chapter of Legal Naturalism: A Marxist Theory of Law, supra note 5.

54. Supra note 3 at 658.

55. For a similar point of view see Horwitz, supra note 44 at 566; also Fine, supra note 1 at 188–89.

56. See Judith Shklar, Legalism (Cambridge: Harvard University Press, 1964, 1986).

57. The idea that there may be life beyond liberalism and its associated social theory is anathema to the sort of rule of law theorists we have been considering. It is, for them, the root of all evil. Others don’t even bother to justify their preference for the rule of law. They work from the inevitability of the liberal model; they never question it. But N. E. Simmonds exaggerates when he argues that Marx always wrote about law, the State, and juridical thought, from a viewpoint external to them. But he is right in his insistence that Marx’s attitudes to these phenomena “depend directly upon his belief in the possibility of communism.” See Simmonds, “Bringing the Outside In” (1993) 13 Oxford J. Legal Stud, at 159.

58. Marx did so consider religion. See Karl Marx, “A Contribution to the Critique of Hegel’s Philosophy of Law: Introduction” in Marx & Engels, Collected Works, supra note 50, vol. 3, at 175–87.

59. Marx, “On the Jewish Question,” ibid. at 152.

60. See G.W.F. Hegel, Natural Law. trans. T.M. Knox, intro. H.B. Acton (Philadelphia: University of Pennsylvania Press, 1975).

61. Marx & Engels, supra note 50 at 155.

62. For similar charges made against the rule of law by non-Marxists see Hutchinson & Monahan, supra note 7 at 121.

63. Marx & Engels, supra note 50 at 165.

64. Ibid. at 167.

65. See Marx, “Economic and Philosophical Manuscripts”, ibid. at 229–346.