1. The rule of law

Understanding RUNE LAW and the Rule of Law

What is the Rule of Law?

Definition:

Rule of Law way of understanding the world is that law is about:

• Institutions, Procedures , Rules

• The priority of this way of solving disputes as authoritative over other forms of dispute
  resolution such as chicken divination (Azande)

• Law is rather like ‘old math’: static, stable, formal – rationalism walled against chaos
  (Patricia Williams)

• Lay consumers of law understand it as something which maintains order in society – without which we would have massive disorder or anarchy, with no individual safe from violence or threat to their property

• Sense of unopposable wisdom that seems to underlie the rule of law

Classic Definition of Rule of Law

Wade & Bradley → Their analysis of the rule of law emphasizes that legal frameworks symbolically represent a preference for orderly community life versus the alternatives of anarchy and insecurity.

The rule of the game are not neutral

• Groups of people are likely to be differentially affected by law, the legal process and legal outcomes

• Undermines the notion of formal equality that underpins the rule of law

• Imbalance – the scales are tipped in favour of property owning, white, heteronormative man

• Normative standards that have the effect of discriminating and excluding those who are non- normative

• The rule(s) of law perpetuate the inequality and injustice that they seek to address

Alternative sources of Law

In the book Witchcraft, oracles and magic among the azende, Evan-Pritchard shows hoiw the azende use chicken divination - an oracle involvingposiin administered to chickens - to gain insights and make decisions. It reflects a structed belief in supernatural explanations for life events. Evans-pritchard shows that chicken divintation serves as a customary law mechanism in azende society ( e.g. decision-making, conflict resolution, validation, social control, preventive and corrective function).

This is an alternative to the rule of law - where decisoins are legitimised by the law with the accompanying courtroom trial and ;long’ dead courtrooms when azende is - where decisions are legitmised by the chicken.

The imposition of British law in Nuer societies as an example of colonial imposition of the
Rule of Law way of doing things as ‘better’ than alternatives.
This imposition also allowed the British to exploit the property and capital imperatives of colonialism by imposing notions of ownership and debt which were not recognized by the Nuer who functioned on kinship rather than individuals and their property. Extraction of resources and the management of people

Critiques of Rule of Law

Inequality in Law:

• Impact on Different Groups: Not all demographics experience the law equally; historically, laws have tended to favor property-owning, white, heteronormative individuals, creating systemic biases.

• Normative Standards: Legislation frequently discriminates against non-normative groups under the guise of justice, perpetuating social inequality and limiting access to legal protections.

Role in Society:

• Holistic Approach: By examining the broader societal impacts of law, we can better understand its effectiveness beyond isolated instances.

• Political and Ideological Role: The question of power in law raises significant concerns about who determines the interpretation and application of the law, revealing biases and inequalities in its social construction.

Imposition of Law:

• Colonial Context: Historical examples, such as British legal imposition in Nuer societies, demonstrate how law can undermine indigenous kinship systems in favor of individualistic property concepts.

• Comparative Analysis: This involves examining the similarities between the rule of law and alternative systems such as Azande magic for dispute resolution, thereby enriching our understanding of legal frameworks across cultures.

Sovereignty and Objectivity in Law

Parliamentary Sovereignty: who is making law do things?

parliamentary soverignty = ‘ parliamentary soverieingty is a principke of the uk constitution. it makes parliament he supreme legal authoriyu which can create or end any law. Generally the courts cannot overrule its legislation and no parliament can pass future laws that parliament cannot change. Parliamentary sovereignty is the most importat prart of thw uk constitution’

• it is a single source of powere legitimate in a democracy, parliament elected by people.

Legal Objectivity:

• Myth of Objectivity: Contrary to the claim of neutrality, existing laws often reflect biases rooted in socio-economic status, race, and gender, which can influence legislative outcomes.

• Political Nature of Law: It acknowledges that political affiliations and personal backgrounds significantly shape the creation and application of laws, challenging the notion of impartial justice.

• Statute: who is writing this, government or people? Government.

• Case Law: who is deciding case law? Statutory interpretation? Judiciary.

• Wade et al→

  • law is political/politics, it is ideological

Justice and Access in Law

Justice as Equal:

• Symbolism: The principle of ‘Justice is blind’ represents an ideal of equality before the law. However, the effectiveness of this principle often falters in practical scenarios.

• Reality Check: The accessibility of legal justice raises significant questions; the complexity of legal systems often conflates legal resource availability with genuine equality.

Access to Justice:

• Economic Barriers: The financial burden of legal representation and education can create significant hurdles for many, undermining the principle of equality in law.

• Legal Aid Cuts: Recent reductions in legal aid services exacerbate issues of access to justice, disproportionately affecting marginalized communities who struggle to navigate the legal landscape without financial support.

The Complexity of Law and Society

Formal vs. Substantive Equality:

• Critique of Equality Claims: The effectiveness of policies that treat individuals unequally under the guise of equality is called into question, illuminating discrepancies in actual societal results.

• Inequity Status Quo: Acknowledges that entrenched social disparities challenge the authenticity of claims regarding formal equality in law.

• Walter Mignolo→

  • decolonial scholar

    • ‘men and women are all born equal but they do not remain equal the rest of their lives’

What does rule of law do?:

• Is disorder and choas the state of being whitchout the rule of law or is it that the rule of law can often obscure chaos and systemic inequities, misrepresenting the reality of justice in practice while failing to address deeper societal issues?

• the rule of law steps in through law as order to make everyday chaotic situations bureaucratically manageable.

• The rule of law however is mediated by power, capital, coloniality, and patriarchy.

• It therefore exacerbates lived chaos and compounds injustice.

Sources Of Law

1. Legislation= Legislation is the process by which a governing body creates, enacts, and enforces laws to regulate behavior, protect rights, and promote societal welfare.

   • mansell, materyard and thompson→

     • ‘ this is a particulaly powerful piece of magic. It is able to alter peoples behavior by a ritual culminating in the signed paper of the sovereign’

Preference for order attained through referring to a book of rules

• Separates law as discrete from the social reality that it exists in and constitutes

• Books of rules - authoritative – law derives its authority from hierarchy, sources and status

• A designated source of law (Legal Positivism) – legislation through parliament

• We refer to them without question during our legal education - there is so much to learn!

• No time for questioning

• This module seeks to provide you with that space

• As simple as asking the question: who writes the statute I am applying?

• People – who are they? What experiences are they drawing on?

Judicial Process and Authority

Role of Courts:

• In a court of law, law is made by judges and the judiciary.

• Case law is decided by the judiciary ratio decidendi, obiter dicta, dissenting, statutory interpretation

• Judicial diversity=

  • is the representation of various backgrounds in the judiciary, which enhances public trust, promotes nuanced legal interpretations, influences decision-making, improves access to justice, and addresses systemic barriers through targeted recruitment efforts.

• What does this mean for the evolution of law and our understanding of it->

  • Judicial diversity profoundly influences the evolution of law and our understanding of it by introducing inclusive perspectives that reflect the varied experiences and needs of society. A diverse judiciary fosters more comprehensive interpretations of laws, allowing the legal system to adapt to changing societal norms and issues. This representation enhances the legitimacy of the legal system, building public trust and encouraging compliance with the law. Furthermore, diverse judges are more likely to recognize and address systemic injustices, promoting fairness in legal outcomes. Additionally, judicial diversity can shape legal education and scholarship by encouraging broader discourse that includes marginalized perspectives, ultimately catalyzing social change through legal precedents that align with contemporary values and priorities. Overall, it leads to a legal framework that is more responsive, equitable, and capable of serving all members of society effectively.

• Are the voices in the judicicary service objective?

  • ‘so-called objective unmediated voices…in fact mired in hidden subjectivities and unexamined claims’ - linda alcoff

  • Assumptions attitudes aspirations and antipathies that infuse law(P Legrand)

Precedent = Stare Decisis

→the legal principle of adhering to precedents established in previous court decisions. This doctrine is essential for ensuring consistency and predictability in the law; however, it also raises significant concerns about inclusivity and representation within the legal system.

• For instance, while stare decisis may promote stability, it can also perpetuate existing biases and exclude perspectives that challenge or differ from those represented in prior rulings.

• It also may systematically exclude marginalized voices, including racialized, gendered, and socio-economically disadvantaged perspectives.

• Williams→

  • critical race scholar

    • highlights that the judiciary—often composed of individuals from upper and middle-class backgrounds—tends to reflect a homogenous perspective. This predominance can result in rulings that may not resonate with or address the concerns of less privileged populations.

    • The phrase “the voices of the white upper/middle class judiciary” underscores the notion that the legal narratives and precedents set forth by these judges often prioritize their experiences and perspectives, which can be vastly different from those of marginalized communities.

• are there accents in law?

  • it is a metaphor for the dominant voices and perspectives that influence legal interpretation, often reflecting the backgrounds of those in judicial power.

  • This "accent" can reveal biases in the legal system by prioritizing certain viewpoints—typically from dominant racial, socioeconomic, or gender groups—while potentially excluding the diverse experiences and voices of marginalized communities.

Jurisdiction and Court Hierarchy:

• Jurisdiction =

  • Juris ‘ the right’ dicto ‘to speak’ → latin roots meaning

  • delineates the scope of legal authority and the application of law, while court hierarchy establishes the framework for legal authority.

• The structure of the judiciary often mirrors power relations, indicating which groups hold influence over legal decision-making processes.

• The courts have this authority and power to speak the law, to change the law, to preserve the law

• Decisions are described as ‘authoritative’

• The courts sit in a relation of hierarchy with the authority to speak the law increasing in power towards the top of the hierarchy, which is the Supreme Court.

• So the court structure is not just ‘how law is decided’ It is also a structure and relation of power i.e. who decides what is authoritative, who has the power to decide

  
  High Objectivity of the law

• The myth of the purely objective perspective is too often concretised in law as ‘impersonal’ rules and ‘neutral’ principles

• Presumed to be inanimate, unemotional, unbiased, unmanipulated, and higher than ourselves and everyday life: law on high

• Williams: ‘Talk about your iron-clad canon. Talk about a static, unyielding, totally uncompromising point of reference. These people must be lawyers. How else do
  people capitulate so uncritically to a norm that refuses to allow for difference?’

• We are trying to not accept, to not capitulate and instead engage in critical reflection on law

• she wants to make space for otherness in law

• ‘Describe a…context for those social actors [people] whose traditional legal status has been the isolation of oxymoron, of oddity, of outsider’

• We see through Williams’ exploration later on in the book that she analyses contract law through the lens of the contract for sale of her great-grandmother as property
  being sold as a slave

• These are not our common-sense understandings of contract and property

• But contract and property are implicated in this and enable this kind of social order
  These are the people who exist and do not exist in the law

• That life is complicated is a fact of great analytic importance

• Law seeks to avoid this by making up its own breed of narrower, simpler, but hypnotically powerful rhetorical truths: All are equal before the law

• ‘Acknowledging, challenging and playing with these as rhetorical (persuasive) gestures is, it seems to me, necessary for any conception of justice’ (Williams)

• This complicates the supposed purity of the gender, race, voice boundary

• Law categorises and in doing so puts people in legal boxes: streamline to make things simple – legal accounting

• Doesn’t capture the rich complexity of everyday lives

• intersectionality is a direct challenge to legal boxes