Constitutions and Rule of Law

“ Law in its broader significance reigns everywhere. Where life exists, there are universal laws of life, and for each form of life after its kind. Within this great order, life-sustaining and life-sustained, there are many grades and types of law… (There is) the vast region of law which works inflexibly, inviolably, and regardless of human wills. Society begets another kind of law, another order reflecting no less surely, but on that very account liable to change, development, and transgression. This social law is expressed in custom, tradition, the thousand forms of use and wont. Part of this in turn is reinforced, reaffirmed, and enlarged as the law of the state”* *R.M. McIver, The Modern State, Oxford, 1926, p.250

Positive law Body of rules enforced by a sovereign state Expresses the will of the state What kinds of rules? Any rules the ruler wants? 2 basic approaches*:  Positivist  Naturalist *See Iain McLean and Alistair McMillan (ed.) Oxford Concise Dictionary of Politics, 2 nd ed., Oxford University Press, 2003, pp

Legal Positivism (Jeremy Bentham, John Austin) Core principle of modern society Dominant view in 20 th century legal theory - both Western and Communist The law is what the judges say it is “Law is the will of the ruling class elevated to legal status” (Lenin) Laws are simply the commands of a sovereign (person or institution). If people obey his commands, they are the law The commands need not have anything to do with laws of nature  What’s the difference between a government and a gangster?  If a gangster makes sure his commands are obeyed in a given territory, he is the ruler of a state

Legal Naturalism Dominant in non-Western non-communist societies, but also increasingly prominent in the West since late 20 th century (Ronald Dworkin, John Finnis) There exists a higher and permanent law which is not dependent on the will of legislators – “natural law” Our reason discovers laws, as it discovers laws of nature Religious faith usually serves as the basis of law (Dostoyevsky: “If there is no God, everything is permissible”) Positive law cannot contradict natural law

Positivists: Naturalism is irrational Too conservative, even reactionary Limits human freedom Comes into conflict with democracy Constrains possibilities of social change

Naturalists: Laws without a moral basis are weak or even harmful Laws consonant with moral values strengthen society’s moral fiber Naturalism serves as a barrier to arbitrary rule It may serve democratic purposes in some cases more effectively than positivism, if democratic values are derived from a “higher order” ( see US Declaration of Independence) May save the environment

The two approaches are often at odds with each other, adopted by opposing sides in political struggles But they need not be mutually exclusive Each approach has its flaws and its strong points Interactions between positivism and naturalism may enhance democracy and progressive change

In the state, there are 2 types of law:  Constitutional  Ordinary Constitutional law – governs the state, and the state is governed by it. Consists of:  Written or unwritten constitution – “basic law”  Accepted interpretations of the constitution The main function – to bind the rulers by a set of rules Rule of law, law-based state Development of constitutionalism has both restrained the legislators and widened their sphere of action Restrained:  Bars the state from certain actions vis-à-vis citizens Widened:  Compels the state to make policies to promote social justice

Magna Carta, King John, England, 1215: Know that before God, for the health of our soul and those of our ancestors and heirs, to the honour of God, the exaltation of the holy Church, and the better ordering of our kingdom, at the advice of our reverend fathers… First, We have granted to God, and by this our present Charter have confirmed, for us and our Heirs for ever, That the Church of England shall be free, and shall have her whole rights and liberties inviolable. We have granted also, and given to all the freemen of our realm, for us and our Heirs for ever, these liberties underwritten, to have and to hold to them and their Heirs, of us and our Heirs for ever.

[2] If any of our Earls or Barons, or any other, which holdeth of Us in chief by Knights service, shall die and at the time of his death his heir be of full age, and oweth us Relief, he shall have his inheritance by the old Relief… [8] We or our Bailiffs shall not seize any land or rent for any debt, as long as the present Goods and Chattels of the debtor do suffice to pay the debt, and the debtor himself be ready to satisfy therefore.

[12] The city of London shall have all the old liberties and customs, which it hath been used to have. Moreover we will and grant, that all other Cities, Boroughs, Towns, and the Barons of the Five Ports, and all other Ports, shall have all their liberties and free customs. [21] No Sheriff nor Bailiff of ours, or any other, shall take the Horses or Carts of any man to make carriage, except he pay the old price limited… [25] One measure of Wine shall be through our Realm, and one measure of Ale, and one measure of Corn, that is to say, the Quarter of London; and one breadth of dyed Cloth, Russets, and Haberjects, that is to say, two Yards within the lists. And it shall be of Weights as it is of Measures.

26] Nothing from henceforth shall be given for a Writ of Inquisition, nor taken of him that prayeth Inquisition of Life, or of Member, but it shall be granted freely, and not denied. [28] No Bailiff from henceforth shall put any man to his open Law, nor to an Oath, upon his own bare saying, without faithful Witnesses brought in for the same. [29] No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

[30] All Merchants (if they were not openly prohibited before) shall have their safe and sure Conduct to depart out of England, to come into England, to tarry in, and go through England, as well by Land as by Water, to buy and sell without any manner of evil Tolls, by the old and rightful Customs, except in Time of War. [34] No Man shall be taken or imprisoned upon the Appeal of a Woman for the Death of any other, than of her husband.

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