The Rule of Law: the New Leviathan

By Olufemi Taiwo
Gist: This is an analysis of the Marxist Rule of Law and how Taiwo believes that if one accepts
political emancipation rather than human emancipation, it is difficult to justify an unqualified
statement of the ideal within the Marxist tradition.
- He posits that Marx did not pay sufficient attention to law or the rule of law so much so
that it could have been compatible with socialism
- He has an instrumentalist attitude towards law and so it does not reflect the utopian
tendencies.
RULE OF LAW
- If we use the Marxist political and revolutionary goal, then the ideal of the rule of law falls
short of requirements because of liberalism
- It bears a close resemblance with Hobbes Leviathan that it asks us to consign our freedom
to law because humans are mutually-distrusting, rational self-interest maximizing
individuals.
- But it is not enough for a good society because it does not take into account that there are
other things to be taken into account aside from the maintenance of the rule of law and
that people does not have an absolute value invested in it.
According to A.V. Dicey:
- The title of law has three meanings:
1. No man is punishable or can be lawfully made to suffer in body or goods except
for a distinct breach of law. Such breach should be judicially established or in the
ordinary legal manner before the courts.
2. All are equal before the law, no one being above it whatever her rank or
condition
3. The general principles of the Constitution arise from judicial decisions
According to Friedmann
- It implies the principle of equality before the law
- There is a principle of equal individual responsibility that does not take into consideration
the exemption, as well as punishment or discrimination of certain classes
According to F. A. Hayek
- The rule of law means that govt in all its actions is bound by rules which are fixed and
announced beforehand
- Only formal law is allowed and legislation which is either directly aimed at particular
people or enables anybody to use the power of the state to discriminate shall be excluded
- In simpler and modern terms, a passed law should be accompanied by an IRR and should
be made known before it is exercised or applied.
But according to Taiwo, these authors are scandalized by a loose conception of the rule of law
which admits all modern states.
What then is the disagreement concerning the rule of law?
1. It is given an ideological connotation; it is identified with a specific ideal of justice
2. The political conception of the rule of law those who hold the political conception value
the rule of law differently from those who do not
a. Those who adhere to the non-political conception contend that the rule of law is only
one value among many and must be balanced with the others;
o It only has an instrumental value, meaning, if it conflicts with something of greater
value, it can be overridden.
o It is highly-valued because of the concept of efficiency and real possibilities of
disutilities
o May be requisite for a good society, but is insufficient to bring one about

b. Those who think that the rule of law must be valued as an end in itself
o It cannot be secondary to some other goal; it is the goal itself
o The Law and nothing but the Law, must rule
o Its quintessence is the distinction between the Rule of Persons and the Rule of Law
The former is the conglomerate of intelligence and appetite and the latter is
the expression of intelligence independent of appetite.
Persons are never free from distortions occasioned by passions, the law is
free of these
The law is more trustworthy as a regulator of human relationships than
humans are
Even though persons are instrumental to the Rule of Law, they do so only as
agents of law, not of themselves or of some other persons
The law is an embodiment of a vision of society and of the place of humans in
it that is superior to or better than alternative conceptions
The Rule of law is basically a substitute for the Rule of Persons.

HOBBES LEVIATHAN
- The Leviathan is the common power instituted by individuals to regulate their relationships
with foreigners and with one another
- Power is the product of mutual agreement among the relevant individuals and is the only
guarantee of the agreement and of its durability
- It is one of total surrender except when this conflicts with the imperative of selfpreservation
- By nature, human beings are equal in the possession of the faculties of body and mind.
But then, the scarcity of resources make the occurrence of conflicts inevitable
- They instituted a common power to escape the insecurity of a condition of generalized war
HOBBES LEVIATHAN AND THE RULE OF LAW
Similarities:
1. They have a negative view of humanity wherein human beings can be counted upon to
seek to get better of their fellows
2. The rule of law is a solution to a problem which is tyranny the social relationship in which
some people can command the lives and property of others at will and in pursuit of
discretionary ends
3. There is no common good
4. No individual good is to be rated higher and more worthy of realization than another
5. The Leviathan/Rule of Law is the means to mediate interpersonal relationship and
ameliorate the incidence of conflicts between individuals so that society will not selfdestruct. It is a neutral mediator of conflicts in socially-significant interpersonal
relationships. -> why? Because it is an impersonal principle which is above persons and
which inhibits he efflorescence of arbitrariness, whims and caprices, privileges, etc.
Persons are unworthy of power.
*Given that both Hobbes and Marx share the idea that there is a radical insufficiency in human
nature, the question is, should we accept it?
- According to Marx, no; even if the Rule of Law is indissolubly linked to the acceptance of
this principle and its allied vision of society.
- The author points out that even if Marx holds that the Rule of Law must be adhered to, he
never embraced the idea that the law or the rule of law represented the best principle of
social ordering for a good society
E.P. THOMPSONS DEFENSE OF THE RULE OF LAW

According to him, the law, when considered as institution or personnel, may be assimilated
to those of the ruling class. It may be seen as an ideology, as particular rules and
sanctions which stand in a definite and active relationship to social norms
For him, the rule of law especially the imposing of effective inhibitions upon power and the
defense of the citizen from powers all-intrusive claims, is an unqualified human good.
His view restores the classical literal usage of the concept of the rule of law against its
corruption in contemporary conservative thought
He insists that rulers should be instruments of the law, and not merely rule according to
law

WHAT IS IT WITH THE RULE OF LAW?

- In spite of its many laudable attributes and historical significance, it is a principle based on
an essentially negative philosophical anthropology.
- ^This philosophical anthropology is a basic pessimism about the human condition, and a
fundamental suspicion that if left to their own designs, humans cannot be trusted to do
right.
- The Rule of law is a sanctification of the perpetual state of conflict. It makes it more
comfortable, or, at least less discomforting, to live with conflict.
- To accept it as a necessary principle of social ordering in a good society is to accept the
impossibility of a less mediated and more transparent social relations.
- The principle restrains powerholders from arbitrary exercise of power and prevents the
benevolent exercise of power.
- Marx insisted that a world without law is superior to one with it because it gave quantum
leaps in the history of human development and the future society must preserve these
gains.
- It is basically aimed at political emancipation wherein man frees himself and transfers all
his non-divinity and human unconstraint to the state.
- It is the quintessential embodiment of the bifurcation of the public individual and the
private individual. It remains alienated from the individuals and at the same time
maintains the continued existence of the state as a power standing over and above
individual in society.
- It regulates the exercise of the rights of the individual when they come into conflict with
anothers.
But then, the aim is to complement political emancipation with human emancipation. The Rule of
Law is a move in the opposite direction.
- Why? It does not take into account that we may be able to organize society without the
instrument of law.