Critique of The Rule of Law in the Real World by Paul Gowder

Paul Gowder in The Rule of Law in the Real World talks about the various aspects of the topic including new concepts of the rule of law as the coordination of power at different levels. He talks about the factors and conditions that promote the rule of law and the various factors that implementation of the rule of law influences. This paper will be discussing the different aspects of the rule of law, its relationship with democracy, stability, and equality in light of the book.

Democracy is presented in the book to be somewhat related to the rule of law. However, I think Gowder emphasizes the rule of law at the expense of justice should be at the core when talking about democracy. Democracy, as we understand, entails mass coordination. Gowder argues that collective coordination is not the only province of democracy. However, following the will of the people has to include everyones opinion. He ignores the fact that in the absence of the legal equality which is crucial for democracy, it is unattainable. His statement that it is possible for democracy to exist in the absence of the rule of law proves this assumption on his part. Despite this, he alleges the idea of equality gives a reason to believe there is an association between the rule of law and justice. According to him, the connection is brought about by two reasons. The first reason is that a state may establish a collective trust in making all citizens committed to collectively uphold the law by making the lawmaking process beneficial to the interests of all. The second reason is the law can be made general by the legislative process is under a more general influence. In a democracy, it is mandatory for the people to have the ability to operate levers of their political system to cause political outcomes and these outcomes have to be the products of those operations (Gowder, P. 2016, 159).

For masses to genuinely control political consequences, they need sophisticated coordination tools to overcome such factors as concentrated wealth and hierarchical control of the military. The law is used as the coordination tool. The rule of law facilitates this democratic control over political outcomes and the institutions that enable this, in turn, promote the rule of law. Also, he states that in a homogenous society the masses can exercise control without the rule of law, but the same cannot happen in a heterogeneous state. Although the masses can have power without the rule of law, I feel that the author ignores the fact that there cannot be an entirely homogenous society and without the rule of law, the mighty masses, whether regarding rank or economic muscle will most likely be the masses that will have control. In my opinion, ideal democracy cannot be achieved without the rule of law.

The writers views on the rule of law and equality which is intertwined with democracy, are paternalistic. The rule of law means that those that control state power may not use this ability whenever they need, but their power has to be bound by the law in a meaningful sense. It also entails regularity which has the principle that a states coercive power should be applied impersonally. There is also the principle of publicity which requires officials to give details for their uses of coercion on citizens, and the purposes have to be how the law is correctly applied. According to Gowder, vertical equality is achieved by ensuring there are publicity and regularity of the law. Officials cannot treat nonofficial with hubris, meaning they behave as if they are superior in a hierarchy when there are publicity and consistency of the law. It denies the officials the ability to inflict terror on nonofficial to make them fear their power. Citizens cannot abandon the legal system in cases where the law proves to be inconvenient without undermining their capacity to trust each other with upholding the law when it serves their interests (Gowder, P. 2016, 81). According to Gowder, the poor people in a given state will support laws that do not favor them merely because they are aware that the law being general makes the situation almost equal compared to anarchy or tyranny. The rule of law, in most cases, as Gowder argues is consistent with the same status of all. The writers views mentioned are just an idealistic point of view. In real life situations, the rule of law accomplishes very little in achieving equality. People in lower economic classes are still afraid of officials such as policemen because despite the existence of the rule of law, to be pragmatic they are superior and on most occasions get away with offenses.

On the same concept of equality, Gowder claims that it is necessary for the people to believe in the fairness of the law and that it is for their good to be motivated to uphold the rule of law. In establishing and maintaining the rule of law in a community, there ought to be a widespread commitment among its members with the adequate power to uphold the rule of law (Gowder, P. 2016). I find this claim paternalistic. Most people uphold the law in the real world not because they believe that the law is meant for their good but because they do not want to get into trouble. Nevertheless, these people still uphold the law. Therefore, in the real world, I believe a commitment to the law by the people helps promote the rule of law but is not necessarily mandatory for the rule of law to be effected.

The author argues that without written law, the rule of law is illusory. According to me, the argument is not based on concerns about the administration of justice. He bases this discussion on the British rule of law. Consistent with the opinions of many scholars, he says that without a written constitution or a binding judicial review, the sovereign parliament could overhaul the peoples legal rights. The example he gives is the recent decision by the legislature put Britain outside the bounds of the rule of law. The secretary of state has the authority to subject a person to terrorism investigation and prevention measures for up to 2 years if the merely reasonably believes the individual is associated with terrorism-related activities (Gowder, P. 2016, 81). Although the power confers an unprecedented amount of discretion on officials of the executive to utilize the states power of coercion by the thinnest of reasons, the United Kingdom is not popular for the abuse of this law. Other countries where there is written the law, such laws are abused to target and profile a specific group of people. The focus ought to be on whether with the justice of the existing law is administered. In any case, issues of violation of publicity are addressed by statutes authorizing suspicion-based coercion, acts of attainder and other such which are aberrant measures used when there is a political crisis. The administration of justice is one of the most useful roles of the rule of law and should form the basis for assessing the performance of the rule of law.

The writer alleges that the rule of law promotes a states stability. The notion of a stable state from Gowders perspective leaves out a crucial factor in determining a countrys stability in our world today. The factor is the ability of the rule of law to administer justice. He says that in a homogenous state, it is plausible to have stability in the absence of the rule of law because the interests of the masses are similar. Gowder gives an example of Athens where the people controlled political outcomes through coordination to enforce norms and customs rather than the law via their legal and political institutions. Gowder ignores the fact that although such a country may not be at war and may be regarded as stable, this is not the case. Most people in such a country would feel that the system is not fair. Thus, it does not administer justice impersonally. On the other hand, Gowder says a heterogeneous state would require the rule of law to maintain stability because different groups of people have varied interests regarding culture, religion, e.t.c. Gowder focuses on the rule of law and ignores the fact that as it has been seen in many states, real stability is attained when there is justice for all. In the absence of this, a state may seem stable, but there is a great chance a revolution is brewing.

In conclusion, the rule of law in the real world is complicated. It, however, is the fabric that holds together heterogeneous states. The most important aspect of the rule of law is its role in the administration of justice. People with different interests can live in harmony because with the rule of law; all are equal in the face of the law. It also facilitates democracy as factors such as imbalance regarding the distribution of wealth is taken care of with the rule of law. Although there have been instances where officials have acted beyond the rule of law such as police brutality, the solution to this is the rule of law as such officers should be prosecuted with regards to the law.

References

Gowder, P. (2016). The Rule of Law in the Real World. 1st ed. Cambridge: Cambridge University Press, pp.1-117.