The Rule of Law: What Law? Whose Rule?
Law is more than a set of rules – it is a system of rules. Some have attempted to confine the definition of law to observable, external behaviour :- “A” commands, and “B”, “C”, “D” all obey. But this proves insufficient because of the omission of internal attitude : “B”, “C”, “D” might be just mafia members jumping to the orders of “A”, their boss. A citizen is recognising law, however, when she or he internally acknowledges the claim of an evaluative behaviour-norm. Law, then, is one mirror of society’s self-understanding - our vision for a well-ordered society, and of our plans for getting there.
The formulation of a law is the end-product of society’s distinctive manner of imagining the real. There would not be a law if the normative element were lacking; and the normative element depends on a cultural/social context of meaning. This context is the overall factual element, or raw material, some of whose circumstances become “constructs” pertinent to the framing of a law. For instance : Not all data are accorded equal legal relevance – “hearsay” material will not be admitted in evidence.
The meaning of law is derived from its purpose [telos] – and that is, the bringing about of right relationships between people: justice. The pursuit of justice, in its turn, will lead into people’s stories: narrative.
There is normativity (or rationality) inherent in the enterprise of subjecting human behaviour to appropriate rules: this is the “normative structure” of society. This can also be called the “nature” of human beings; and so there can be one form of “natural law” which is independent of the rules of any religion or of God’s commands.
But the current “received view” on law in contemporary western societies posits a disjunction between “what the law is” and “what the law ought to be”; between matters of law and matters of (cultural and social) fact; between the nature, origin, role and legitimacy of law – and morality. This is a vague legal positivism; it is related to secularism – in that it fears for the objective, impartial, democratic character of law, if law were ever to be subject to the influence of a thought-system such as religion.
In order to indicate how this particular reductionist view of law may be quickly found lacking when put to the test, one has only to mention the two main arenas of the expanded modern reliance on law:
First: In Western pluralist societies, the law is coming to be seen as the main or even the sole source of morality. But one wonders whether an ethically-free version of law can continue to be accorded normative (apart from coercive) power. Even some segments of world religions have begun to accord only “valid for me” status to moral norms – while their more traditional memberships, by contrast, are not going to respect a legal system which avoids the attempt to root itself in a normative world-view.
Second: For socio-political advances, too, people are today looking more and more to law rather than to parliamentary assemblies. As possible deterrents to those (such as war-lords) contemplating crimes against humanity, people are putting their trust in the jurisdiction of the International Criminal Court at the Hague, and in the force of UN documents on human rights…ethical founts, surely. And in Ireland, politicians themselves since the 1970s have been looking to Supreme Court adjudications as a short-cut to determining issues around abortion and property.
Séamus Murphy, S.J. lectures in philosophy at the Milltown Institute, Dublin.
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