ã Intisar Castelli, 2016
Public Law Revision
The Rule of Law
• Can be interpreted as a philosophy or a political theory which lays down fundamental requirements
for law.
• Sovereignty of law over man.
• Both prescriptive (dictates conduct) and protective (demanding that governments act according to
law.
Marxist perspective Socialist and Totalitarian
Law serves to conceal injustices in Liberalism pays too little regard to
the capitalist system. The concept of true equality between people and
the rule of law represents a false too much attention on the
idealisation of the law, designed to protection of property interests.
reinforce the political structure and
economic status quo in society.
Uncertainty in the Western Rule of Law
• To some theorists, the rule of law represents an aspirational philosophy; to others, it’s no more
than a device to ensure that everyone complies with law, no matter whether it’s good or bad.
• The rule of law, however, retains a secure grasp on political and legal thinking: ‘enduring
importance as a central artefact in our legal and political culture’ (Raz, 1979).
Natural Law and the Rule of Law
• The natural law tradition insists that the authority of law derives from a higher source (theological
or secular). Power of man is not absolute, but is controlled and limited by the requirements of a
higher law.
→ Ancient Greece and Rome
• For the Greeks, man was under the governance of the laws of nature – more aligned with the ‘law
of nature’ rather than ‘natural law’. From Greek philosophy, natural law entered Roman law. The
law of nature corresponded with ‘that which is always good and equitable’.
→ Christian thought
• Natural law was perceived as God-given, communicated to man by Revelation, and remained
binding to man. The sovereignty of law became intrinsically linked to Christianity.
Social Contract Theory
• John Locke and Thomas Paine: doctrine of inalienable human rights – rights which cannot be
overridden by the state and which affirm the supremacy of state law if the law complies with
natural law.
• Thomas Hobbes: pessimistic view – man, by nature, is incapable of regulating his life in peace and
harmony. Society lacking an all-powerful sovereign will lack restraint.
• Rousseau: man comes together from necessity; men in the natural state have nothing to fight over
because they endeavour to secure provisions needed for life.
The Obligation to Obey Law
• Law and order model: idea of absolute obedience to law (analytical, positivist school of thought)
Public Law Revision
The Rule of Law
• Can be interpreted as a philosophy or a political theory which lays down fundamental requirements
for law.
• Sovereignty of law over man.
• Both prescriptive (dictates conduct) and protective (demanding that governments act according to
law.
Marxist perspective Socialist and Totalitarian
Law serves to conceal injustices in Liberalism pays too little regard to
the capitalist system. The concept of true equality between people and
the rule of law represents a false too much attention on the
idealisation of the law, designed to protection of property interests.
reinforce the political structure and
economic status quo in society.
Uncertainty in the Western Rule of Law
• To some theorists, the rule of law represents an aspirational philosophy; to others, it’s no more
than a device to ensure that everyone complies with law, no matter whether it’s good or bad.
• The rule of law, however, retains a secure grasp on political and legal thinking: ‘enduring
importance as a central artefact in our legal and political culture’ (Raz, 1979).
Natural Law and the Rule of Law
• The natural law tradition insists that the authority of law derives from a higher source (theological
or secular). Power of man is not absolute, but is controlled and limited by the requirements of a
higher law.
→ Ancient Greece and Rome
• For the Greeks, man was under the governance of the laws of nature – more aligned with the ‘law
of nature’ rather than ‘natural law’. From Greek philosophy, natural law entered Roman law. The
law of nature corresponded with ‘that which is always good and equitable’.
→ Christian thought
• Natural law was perceived as God-given, communicated to man by Revelation, and remained
binding to man. The sovereignty of law became intrinsically linked to Christianity.
Social Contract Theory
• John Locke and Thomas Paine: doctrine of inalienable human rights – rights which cannot be
overridden by the state and which affirm the supremacy of state law if the law complies with
natural law.
• Thomas Hobbes: pessimistic view – man, by nature, is incapable of regulating his life in peace and
harmony. Society lacking an all-powerful sovereign will lack restraint.
• Rousseau: man comes together from necessity; men in the natural state have nothing to fight over
because they endeavour to secure provisions needed for life.
The Obligation to Obey Law
• Law and order model: idea of absolute obedience to law (analytical, positivist school of thought)
