Preface to The Origin of the Modern State and Critique of the Rule of Law

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.

23 Responses

  1. too long… and… gosh.. i dont even feel like reading it. Haha

  2. haha..what to do, newbee…yea, i realised…sorry man, no condensed version yet..

  3. Oi, ur writing a novel isit?

  4. yer la ken. amender ni? dah lah bahasa susah aku nak paham. panjang pulak tu. tak merakyat langsung ni. bahasa mesti senang diakses oleh rakyat. baru boleh menang dalam pertarungan idea.

    contohilah tuan guru nik aziz dalam hal ni. dia paling pintar! gecek kelate sokmo. bahaso mudoh belako. baru rakyak dekak denge kito, mesro denge kito.

  5. dude,

    i’ve read all finally. damn! i must say that was pretty heavy but thought provoking thesis. derrida disciple at its most deconstructive element! plus…u have dismantle the idea of rule of law. rule of law in its essence is a hegemony of ruling class over the masses!

    count me as ur disciple dude!

  6. sorry la guys..when i started writing i actually wanted to keep in short..but i realized that since this was a new thing, something which to my opinion is new to most of us (ok maybe not most of us but its new to me), i found it difficult to leave bits and pieces out or else the idea will be hanging so i just wrote down everything…will try to make it more precise and concise next time!!

    eh, jangan cakap cam tu..i feel it hasn’t been dismantle yet..too theoretical..i havent relate it to whats happening in practice yet, illustrations etc….right??

  7. wei ken, macamana you jump straight from primitive communism to feudalism? What happened in between?

  8. wei..whats primitive communism la..dun remember using that term..where u get it from…
    i didnt intend to explain the origin of mankind…i used certain examples like primitive society and feudalism just to illustrate what historical materialism is… so its not jumping, just picking out significant stages of historical materialism..

  9. Menarik artikel yang dikemukakan kerana mengambilkira bermulanya tamadun manusia.

    Maka kalau dikatakan tamadun manusia bertulis telah mencapai usia 10,000 tahun, konsep Rule of Low (RoL) telah berjaya berevolusi dari konsep asal keperluan menjadi manusia. Dan RoL adalah hasil dari ujian masa yang merupakan ujian ketahanan kepada sistem yang diterima pakai oleh ramai.

    Pengolahan sistem RoL modern adalah berlandaskan kepada kegagalan sistem lain yang telah dipakai. Sudah pasti karl Mark sangat percaya kepada Darwin dan mengevolusikan RoL. Ia sebagai satu penapis bagi memisah yang mahu berfikir dan yang hanya mahu percaya.

    Saya tidak mengatakan RoL sebagai terbaik untuk manusia, tetapi ia merupakan proses adapt dan evolve serta kepentingan memahami konsep membuat pilihan terbaik dengan menggunakan akal yang diberikan Allah.

  10. I think the article is justified due to the premise that the author choose to begin🙂

  11. alamak..begin with🙂

  12. saya amat mengalu-alukan premis lain yg lebih baik…🙂
    sebab bagi saya buat pada masa ini, premis ini la amat kukuh…adam smith sendiri menyokong premis ni…

  13. Sebab itu saya mengisytiharkan diri sebagai seorang centrist meski saya akui cenderung libertarian..

    Kerana elemen Rule of Law untuk saya wujud jauh lebih awal dari kehadiran Marx dan Adam Smith🙂

  14. rule of law cuma wujud apabila wujudnya modern state…sebelum tu tidak wujud rule of law…yg wujud cuma natural law…tu amat berbeza sekali dgn rule of law..

  15. saya memilih untuk tidak bersetuju dengan kenyataan itu dengan rujukan kepada sahifah madinah di zaman Rasulullah s.a.w.🙂

  16. salah satu unsur penting rule of law adalah pemisahan antara hal ketuhanan dan hal manusia…oleh itu sahifah madinah tidak boleh dikatakan sebagai memyerupai rule of law…asas sahifah madinah adalah wahyu Allah s.w.t yang dikomunikasikan melalui Nabi Muhammad s.a.w. , oleh itu pengaruh tuhan dlm undang-undang amat terserlah…

    kalau saya silap tolong betulkan….

  17. salah satu unsur penting rule of law adalah pemisahan antara hal ketuhanan dan hal manusia.

    untuk saya ia tidak sepenuhnya tepat. sudah tentu hal ini boleh didebatkan.

    saya melihat rule of law dalam konteks adanya undang-undang tertinggi yang diimplementasikan sama kepada semua tanpa kecuali. undang2 ini menggantikan manusia sebagai pemutus tertinggi undang2. maksud saya tidak ada manusia berada di atas undang2 sebaliknya semua adalah sama di mata hukum.

    dalam kes sahifah madinah, saya perlu akui bahawa saya masih mencari formula bagaimana nabi s.a.w. mendapatkan konsensus bagi formula tersebut.

    tapi, memandangkan saya bukan lulusan undang2, saya sangat berbesar hati untuk belajar dari orang yang lebih tahu. sudah tentu bila saya menolak premis yg sdr beri, ia tidak bermakna saya mengatakan ia sepenuhnya salah sebaliknya ia memperkayakan perspektif saya. dan kerana saya bersandar kepada sahifah madinah, saya melihat libertarian sbg idea yg lebih dekat dengan islam tanpa menafikan sumbangan ideologi yang lain dlm konteks persaingan idea.

  18. adakah ideologi-ideologi lain jauh dengan islam?

    adakah libertarian sahaja yang dekat dengan islam?

    apa yang dekatnya libertarian dengan islam?

    apakah islam itu sendiri tidak cukup lengkap sehingga kita perlu ambil ideologi asing seperti libertarian?

    apa perlunya islam digunakan untuk melegitimasikan libertarian?

  19. jika sdr tidak berminat, maka terpulang..

    sy tak tahu bagaimana sdr menjambatani realiti dengan keyakinan sdr..nak juga sy dengar pandangan sdr utk menyelesaikan masalah yg ada..

    byk pdgn aktivis islam mirip sosialis tetapi tak mahu mengaku.

    kalau dah jenis terjah ni mungkin dia tak faham bahawa meski sy cenderung libertarian, sy mahu dikenali centrist atas faktor keluasan agama yg sy pegang berbanding perspektif libertarian.

    sebenarnya sy malas nak jwb pertanyaan ad-din ini, dan sy masih menggunakan bahasa yg lunak.

    duduklah dlm ketakutan sendiri tanpa cuba memahami!

  20. lupa pulak..

    meski sy cenderung libertarian, dan mendakwa diri saya centrist, sy selalu mempertahankan kepentingan mengumpulkan seluruh pandangan agar keputusan yg diambil sekurang2nya telah melalui proses terbaik…

    sy tidak berminat bermusuh dgn sesiapa sebaliknya sedia membebaskan minda utk menyerap ilmu, pengetahuan dan maklumat yg banyak melalui proses yg pelbagai juga.

    ilmu bukan soal islam lengkap atau tidak. sdr sendiri tak akan dpt tunjuk kepada sy seluas mana ilmu Allah s.w.t.. Atau sdr Ad-din sudah yakin cukup ilmu? kongsilah..sy sedia belajar..

  21. Sdr amin,
    premisnya adalah RoL yg terjadi hasil daripada evolusi dari tamadun2 awal sampai skrg.bila saudara mengaitkan dgn sahifah madina semacam janggal pulak di sana.Seperti sdr amin cuba untuk mencocok-cocok kan idea islam(pengaruh dari langit) ke dlm RoL yg sedia sendat ini.
    mungkin sdr amin boleh bawak premis yg lain kot.

    Ntah la, sy cuma xpaham sgt. mungkin ada org yg boleh memudahkan sy🙂

    btw, setuju,susah jugak nak baca panjang berjela ni.xperlu diringkaskan atau dipadatkan,cuma apa kata dipecahkan kpd sub tajuk. maka lagi senang utk focus.

  22. “Marxist theory asserts the capitalist state is an instrument of oppression of the proletariat at the hands of the bourgeoisie, which set the laws to suit itself. Following this, some critical theorists analyze the “rule of law” as a judicial fiction which aims at disguising the reality of violence and, in Marxist terminology, “class struggle”. This theory presumes that the “bourgeoisie” holds the power to set the laws.”

    The above passage I quoted from wikipedia and I think the long article written by Ken must be read and understood within the context of the above passage.

    However, this but only one of the many ways of dissecting the concept of Rule of Law (RoL). The concept of RoL is one of the most misunderstood concepts. Remember Dr. M kept on talking about the importance of RoL, but actually he was saying about Rule by Law (RbL or even Rule by Man) and not RoL! The irony is his version of RoL (actually RbL) has seriously undermined the actual RoL.

    In order to avoid repeating the glaring and unforgiving mistake committed by people like our great stateman Dr.M, I need no go further to reproduce the following statement to remind all of us of the meaning of RoL here:

    “In his treatise, Law of the Constitution (10th Ed., 1959), pp. 187, et seq., Dicey identified three principles which together establish the rule of law: (1) the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power; (2) equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; and (3) the law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts.”

    Now, any law made by men/state that violates the above three principles is against RoL. At best, they are RbL or Dr. M’s version of “RoL”!

  23. yes. Someone cannot simply mix-match the meaning of ROL and try to suit with his/her own meaning. It is not jigsaw puzzle.

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