Laws and Extra Legal Doctrines

¶ … Rule of Law and Extra-Legal Doctrines

The rule of law does not need to be supported or expanded by "extra-legal" doctrines of morality. The laws as they exist today in this country are based upon a system of morality that has evolved over thousands of years. Our laws embody this system of morality and do not need to be supported by other doctrines of morality. Moral notions of good and bad laws exist to prevent the government from abusing the rights of its citizens. In order for the rule of law to allow a government to exercise power, governments should not execute laws in arbitrary fashion. Those who make and enforce the law are themselves bound to adhere to it. "The legislative department shall never exercise the executive and judicial powers or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men" (Massachusetts Constitution, Part the First, art. XXX, 1780).

The rule of law implies that government authority may only be exercised in accordance with written laws, which were adopted through an established procedure. The government is responsible for maintaining civil order and peace through a system of generated rule. No individual should be punished if that individual doesn't know the law. The rule of law implies that individuals must know the law in order to be punished. This principle is intended to be a safeguard against arbitrary rulings in individual cases. The concept of "rule of law" per se says nothing of the "justness" of the laws themselves, but simply how the legal system upholds the law. As a consequence of this, a very undemocratic nation or one without respect for human rights can exist with or without a "rule of law," a situation which many argue is applicable to several modern dictatorships. However, the rule of law is considered a pre-requisite for democracy, and as such, has served as a common basis for human rights discourse between countries such as the People's Republic of China and the West.

The rule of law is an ancient ideal of first posited by Aristotle as a system of rules inherent in the natural order. It continues to be important as a normative ideal, even as legal scholars struggle to define it. The concept of impartial rule of law is found in the Chinese political philosophy of Legalism, but the totalitarian nature of the regime that this produced had a profound effect on Chinese political thought which at least rhetorically emphasized personal moral relations over impersonal legal ones. Although Chinese emperors were not subject to law, in practice they found it necessary to act according to regular procedures for reasons of statecraft. In the Anglo-American legal tradition rule of law has been seen as a guard against despotism and as enforcing limitations on the power of the government.

Law, in politics and jurisprudence, is a set of rules or norms of conduct, which mandate, proscribe or permit specified relationships among people and organizations, provide methods for ensuring the impartial treatment of such people, and provide punishments for those who do not follow the established rules of conduct. Law is the formal regime that orders human activities and relations through systematic application of the force of politically organized society.

Laws may require or proscribe given actions, as well as empower citizens to engage in certain activities, such as enter into contracts and draft wills. Laws may also simply mandate what procedures are to be followed in a given context; for example, the United States (U.S.) Constitution mandates how Congress, along with the President, may create laws. A more specific example might be the Securities and Exchange Act, which, along with the SEC, a regulatory body, mandates how public companies must go about making periodic disclosures to investors.

The question that has received the most substantial attention from philosophers of law is "What is law?" Several schools of thought have provided rival answers to this question. Natural law theory asserts that there are laws that are immanent in nature, to which enacted laws should correspond as closely as possible. This view is frequently summarized by the maxim: an unjust law is not a true law, in which "unjust" is defined as contrary to natural law.

The natural law or law of nature is a system of justice that exists independently of the positive law of a given political order. Its usage has varied through its history. It presently has a meaning in both moral theory and legal theory, despite the fact that the core claims of the two kinds of theory are logically independent. According to natural law ethical theory, the moral standards that govern human behavior are, in some sense, objectively derived from the nature of human beings. According to natural law legal theory, the authority of at least some legal standards necessarily derives, at least in part, from considerations having to do with the moral merit of those standards. There are a number of different kinds of natural law theories of law, differing from each other with respect to the role that morality plays in determining the authority of legal norms.

The concept of natural law was very important in the development of Anglo-American common law. In the struggles between Parliament and the monarchy, Parliament often made reference to the Fundamental Laws of England, which embodied natural law since time immemorial and set limits on the power of the monarchy. The concept of natural law was expressed in the English Bill of Rights and the U.S. Declaration of Independence, and by 19th century anarchist and legal theorist, Lysander Spooner.