The Rule of Law

Sep 05, 2010 Editorial

Today the “Rule of law” is bandied about as such a cure all for our political problems, that we have almost lost sight from whence arises this universal acclaim. We can begin by looking at ends intrinsic to the rule of law particularly the one perhaps deepest in the rule of law tradition – legal reduction of the possibility of arbitrary exercise of power by those in a position to wield significant power.
With the present prevalent capriciousness that surrounds the exercise of power in Guyana it may be best to propose an impartial expert’s opinion as to what constitutes the term “arbitrary”. The philosopher Philip Pettit’s definition is as good as any: An act is perpetrated on an arbitrary basis, we can say, if it is subject just to …the decision or judgement, of the agent; the agent was in a position to choose it or not choose it, at their pleasure.
When we say that an act of interference is perpetrated on an arbitrary basis … we imply that it is chosen or rejected without reference to the interests, or the opinions, of those affected. The choice is not forced to track what the interests of those others require according to their own judgements.
But we need to expand on this bald definition: it is not for nothing that it has been asserted that “law is an argumentative discipline”.
And so we are certain that those that habitually engage in the arbitrary display of power will just as habitually argue to the contrary. It has been proposed that “law is a mode of governing people that treats them with respect, as though they had a view or perspective of their own to present on the application of the norm to their conduct and situation.”
Perhaps the most basic and elemental consequence of arbitrary threats to one’s liberty, is the simple fearfulness of life plagued by the potentially devastating impositions of power unrestrained by the need to give consideration to anything but the will and whim of the power-holder. Threats to liberty are obnoxious whether or not they cause fear, but if they do they are doubly so. Reduction of reasons for it is a great deliverance.
To reduce the fear of it (as also its denial of liberty, dignity and clarity), the limits on that power must be secure, and so understood. A way of seeking to make it so is to institutionalise it.
A closely associated harm that flows from arbitrariness is the indignity of finding oneself the mere object of power, where one has to guess how one might be treated by those in power and/or there is no way of asserting, defending, and claiming attention to one’s own point of view in the face of its exercise.
To consider all that flattery, bowing and scraping, those forelocks to tug, caps to tip, favours to curry, is to use, along with Voltaire, just some of the more evocative of the language’s phrases for an undignified life. We well know the type in Guyana.
A final and familiar reason for reducing possibilities of arbitrary power is that, faced with systematic arbitrariness, citizens lack reliable sources of co-ordination of expectations among each other and between themselves and the state. It may only be in a disco that we do well when ‘the joint is rocking’: we should do well not to forget the post 2000 violence that almost destroyed this nation.
Successful social co-ordination depends upon much besides a clear legal framework that cues in even those who might know nothing much else about each other, but in large, complex and mobile societies at any rate it is hard to see it happening without such a frame.
Among other things, the existence of clear, prospective, etc., shared norms might (and is often assumed to) facilitate such co-ordination. This is the virtue of the rule of law that Friedrich von Hayek stresses, and in large, modern, mobile and complex societies, it falls to law to provide a great deal of it.

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The Rule of Law

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