Law and Society
Week 4 Lecture 5
Rule of Law
Rule of law in Liberal Systems:
• Locke’s second treatise of government (1690)
• Montesquieu’s Spirit of the laws (1748)
▯separation of powers and how things should be distributed.
• The Federalist papers (178788) by Madison, Hamilton and Jay
*** Also found in work of preliberal think Thomas Hobbes
• April 5 , 1588 December 4 , 1679 (England)
• Father was a clergyman
• Educated at Oxford (uncle funded it)
• Tutor for same family most of his life
• Developed “Social Contract Theory”
▯This idea of creating stability among individuals.
▯method of justifying political principles via agreement made among suitably situated rational, free, and
▯Conclusion: we ought to submit to the authority of an absolute – undivided and unlimited – sovereign
• Human beings are inclined towards disorder, rivalry, discord and chaos
▯we would never make a decision that would benefit society and we would only make the decision to
benefit our own selfish needs.
• Under the social contract, all individuals cede their natural rights for the sake of protection
▯We recognize the flaws of humanity and that we are willing to give up something to maintain stability
• Order and Civility are the effect of subjection to the sovereign
▯There is this mixture in Hobbes work that emphasis on equality, rationality and freedom of the
individual. However, it is almost as if it is fearful for the freedom of the individual, that what may
▯Hobbes is preserving this idea of the equality, but it is the equality under the subjection to the
monarchy. Some say that this is not equality at all because you are seeing to someone else’s demands.
• The sovereign is not subject to legal limitation
▯creator of the law cannot be limited by the law (altered by their will)
▯Rejected separation of powers, as this would generate conflict and handicap ability to preserve social
▯For Hobbes, the sovereign is on top of the law. The sovereign is the creator of the law and is not
subject to legal objection. The creator of the will and that the law can be altered by the creator.
▯This notion of a singular absolute overtop of the law, division of land, division of labour is seen as a
centralized power. Hobbes believed that by diving this centralized power will raise inherent conflict.
▯Hobbes understanding of how individuals are selfish and will never do anything to benefit the society
can be seen in his conflict theories. ▯Hobbes has made the connection that human beings are rational but they are almost always driven by
this fearful need.
Rule of law and Liberal Systems:
• Political Liberalism: human society should be organized in accordance with certain unchangeable and
▯E.G: rights to life, liberty, and property.
• 17 Century liberalism opposed absolute monarchies (ie. The Hobbesian sovereign)
▯“Free” individuals could form a stable society through self government
▯This government would be accorded the power to make, execute and apply laws for the public good.
• Humans are guided by reason and governed by natural laws
▯Natural law: law is a reflection of the moral order
• One must preserve oneself and not harm others in their enjoyment of health, liberty and possessions
• Free to pursue our own vision of the good
• Government was to serve the people
▯limited delegation of power, for limited purposes, revocable if government failed to meet its
• “Whenever law ends, tyranny begins”
Locke’s view of the separation of powers:
• Separation of powers between the legislature and the executive
▯But no independent judiciary or process of judicial review
• Legislation is established by majority vote (only property holdersmen)
• Emphasis on the consensual nature of government.
State of Nature The state of nature is a state of The state is nature is not
war. No morality exists. necessarily good or bad. It is
Everyone lives in constant fear. chaotic. Rationally recognize the
Because of this fear, no one is need for order, stability and
really free security
Purpose of Government The impose law and order to To secure natural rights, namely
prevent the state of war. man’s property and liberty
Representation Governments are designed to Representation ensures that
control, not necessarily represent governments are responsive to
the people. Representation is a
safeguard against oppression
Impact on Founders Governments must be designed 1) Governments must be
to protect people from designed to protect the people
themselves from the government
2) Natural rights must be
Some Problems with Locke:
• Believed that nonpropertied laboring class was lacking in reason
• “Equality” was incompatible with civil soc