To understand the idea and nature of the Rule of Law, it is imperative for us to first understand the origin of the modern state. This is a prerequisite to the understanding of the Rule of Law as it is a creature and apparatus of the modern state. The idea of the Rule of Law results from the establishment of the modern state and in furtherance to that serves as a mechanism to maintain its existence and continuation.
We begin with the premise that the history of men is one of historical materialism. The relations of production or economic structures are the primary factor which determines social relations and political arrangement. In other words the social relations and political arrangement of men is a manifestation of the relations of production or economic structures. The former is therefore a reflection of the latter. This line of thought is derived from the works of, Scottish philosopher Adam Smith, and a century later, the German theorist Karl Marx.
This is briefly illustrated in the following. In a society where the mode of production consists of hunting and the gathering of vegetation, the need for formal authorities of power or official rules to govern social relations did not arise. The mode of production practiced did not require formal authorities of power or rules to regulate it. There were only informal and customary rules to regulate social relations. This would suffice for the existing mode of production to continue. Any breach by any members of the group would be determined only according to customs and informal power resided in every member of the group or a certain elder. In a society where the mode of production is agriculture, there is a requirement for labour to work the fields. The labour needed to work the fields came in the form of men. Hence men were needed as labour to toil and plough the fields in the agricultural mode of production. To guarantee this supply of labour, feudalism was the necessary structure needed to rule. Here in feudalistic society, there was a need for formal authority of power, which came to be vested in the lord, and more formal rules to govern the activities of the serf and his relationship to his lord, though these rules were still much similar to rules of customs and in the infancy of its development towards a more complex and official set of rules which later came to take place.
To this, earlier ancient civilisations which used slaves and feudalistic societies would be called as pre-capitalist societies with pre-capitalist systems. Notable events in the history of men such as the era of Enlightenment and the Industrial Revolution signalled a process of change in the mode of production to one of capitalist in nature. With the change of the agricultural mode of production to the capitalist mode of production, systems of formal authority and rules also transformed. The agricultural mode of production led to feudalism, while the capitalist mode of production led to capitalism and together with it the creation of the modern state. To identify the origins of the modern state, the distinction between feudalism and capitalism is of utmost importance.
In contrast to the agricultural mode of production, the key essence in the capitalist mode of production is the exchange of commodities. The source of reproduction of capital lay in the system of exchanges. In pre-capitalist societies the State needed to support the economic structures or the mode of production through the enforcement of rules or otherwise the surplus value would not be regularly transferred to the ruling class. Hence there was a need to take in labourers as serfs as was done under feudalism or to bind a worker as a slave as was done in ancient civilisations. The capitalist mode of production on the other hand is distinctive as there is an absence in the need for direct compulsion to work imposed by the owners of the mode of production. Therefore in the capitalist mode of production no such requirement is needed for the State to perform such a function.
This led to the birth of the modern state though the arrival at this stage did not occur immediately but through a long process which can be encapsulated as follows. The system of feudalism requires the need for political intervention in an agricultural mode of production. The orders of hierarchy provided structures of political authority as well as the preservation of economic domination. The class of entrepreneurs belonging to the capitalist mode of production however lack natural mechanisms for establishing systems of authority for they come equally to the market to exchange goods. An impartial order was needed where power had to be held by a representative of the entire class and also by one who stood above them all to maintain order in the market place. Consequently power was then given to a leviathan that was subjected to various conditions and later, to parliamentary democracy. It is clear as to why such system of governance was accepted and adopted for it guaranteed the inviolability of private property and provided a reliable system for the enforcement of contracts which transfer ownership in commodities. So long as these fundamentals were there the relations of production was and could be protected and maintained
This is the origin of the modern state. The modern state is a result of the capitalist mode of production. The ideal was that there would be a separation of the state from civil society. A president or prime minister need not gain power through ownership of a substantial percentage of the means of production while similarly a financier would not necessarily have direct access to political power. The modern state however has only “relative autonomy”, a phrase which will be dealt with later.
The separation of state from civil society leads to the use of public and positive laws. To communicate these laws to the people the state disseminates these laws publicly and by putting them in written form. These laws are known as, among others, common law and statutes. Another feature of this modern legal system which seems to be natural in modern societies is the superiority of law over all normative systems. In feudal society, competing system of rules emanate from different groups and institutions. There was conflict between monarchy and nobility, and secular and religious systems. In capitalist society however the sovereignty of legislation throughout the nation state is firmly established. This is vital to ensure that there is no return to autocratic power and the ending of freedom in the market. The system of political power has been and is so dependant on public and positive law that it is referred to and now known as what we term as the Rule of Law.
The Rule of Law, in its most general sense constitutes three main principles. First, it symbolizes a preservation of the neutrality of the State between classes and interest groups. The State is deemed to be impartial and holds no allegiance to any particular group or individuals. Judges and legal officials of the State are above all an independent entity in its own right and do not succumb to external influences. Second it accentuates that the law is sovereign in their determination on who should hold political office and how political power is exercised. A salient example would be the constitution. It lays down the various political positions and other positions which carry with them the entrustment of power. How these powers are to be exercised and in accordance to rules of whatever nature are also determined and provided by the constitution. Thirdly the law is available and capable of being readily understood. In other words the law is known and applicable to the general public. It is brought to their attention and laid down in written form.
Aside from these three main principles of the Rule of Law, the form of law in modern society has also two essential features. One is that legal procedures and practices are oriented towards an attempt to provide justice. Two, there is the prevailing belief by society in the autonomy of legal thought. These are the main obstacles which hinders the attempt to deconstruct the law and reveal the masquerading nature of the Rule of Law. The Rule of Law is forcefully and vehemently upheld based upon the belief in the autonomy of legal thought and the latter owes much of its credence to the other belief that the modern state is itself independent and autonomous in nature. However as mentioned earlier before, the State is only relatively autonomous.
Here we will consider more into the relative autonomy of the modern State. The obeying class no doubt is capable of resisting certain repressive legislation hence the ruling class does not have exclusive control over the state apparatus in modern society. This is to be termed as what is known to be the limits of law. The ruling class is constrained in the kind of laws that it can enforce due to resistance from the obeying class. It is here that the modern state including its legal system is notable for its ideal to be independent or to have a considerable degree of independence. The State is however no completely autonomous for ultimately it is the ruling class which determines the direction of political initiatives and ensure that the legal system serves to perpetuate the mode of production. The democratic process disguises the presence of ruling class domination behind the mask of formal equality to access of power. These dynamics serve to explain the concept of relative autonomy inherent in the modern state.
One of the examples how the ruling class indirectly control State action is by using power derived from ownership of capital. Any serious moves to alter the capitalist mode of production will be met by a removal of support from the economy. Capital can be transferred easily from one multinational company to another. Events such as crisis of employment or the declining value of money will pressure the government into returning and preserving the capitalist mode of production. Nationalisation of certain industries can also be seen not as a move towards the socialization of the means of production but as a measure to help the remaining private sector of the economy by providing cheap resources of energy and transport.
Aside from economic constraints, another factor is the dominant ideology which sets the boundaries of acceptable political action. The ruling class uses its position to disseminate its own world views and values throughout society. This will result in everyone’s common sense ideas about what are right and wrong, rational and irrational choices, and aesthetic judgements formed by agents of the ruling class. This is done through the usage of, among others, education in schools and universities, the mass media, and the teaching of history. The legal system functions to also disseminate this dominant ideology to maintain ideological hegemony by using legal rules, procedure and doctrines. An instance is the modern criminal codes which emphasizes on a theory of responsibility which focuses on individualism and the mind of the accused individual, and the belief that there is free choice whenever a deviant act is committed. It therefore perceives conduct as an individual act of deviant behaviour while refusing to acknowledge collective, class and social justice.
The state therefore has scope for political struggle and independent action but only within broad guidelines determined by the owners of the means of production and the dominant ideology. The State may therefore also admit legislation which is beneficial to the obeying class but at the same time incapable of supporting any serious challenge to the mode of production. Thus this shows the relative autonomy of the State and due to this there is distrust in the belief of the autonomy in legal thought. Because the autonomy of legal thought is doubted, the idea of the Rule of Law is therefore deconstructed to reveal its hypocritical nature.
Next and lastly, the Rule of Law is also taken to be oriented towards an attempt to provide justice. However the Rule of Law is not a real phenomena. As a result of ideological hegemony, legal phenomena are interpreted in ways which are tuned to the ideological framework. The content of law has distinctive attributes such as formal justice which depend upon complex legitimating ideologies which are themselves derived from political practices within the relatively autonomous State indirectly concerned with the capitalist relations of production. Thus the idea or ideology of the Rule of Law to provide justice is a notion which must be demystified. Formal equality under the law fails to take into account the enormously disparate social circumstances of individuals. The right to own property, an aphorism of the rule of law, ignores the fact that some individuals own hardly any property at all. Equal rights only give a right to social inequality.