Rule of Law and what are its benefits and defects.

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INTRODUCTION

There has been debate over the Rule of Law suggesting a separation between the rules by law and rules made by mere power of a ruler. In the days of Aristotle and Plato, there was a clear distinction between rules and rule by mere power. These distinctions will be discussed below, detailing the benefits and defects of both types of rules.

More recently, the Rule of Law encompasses both rules (mainly Statutes) and judiciary-made rules. Statutes are necessary to limit judges' ultra vires but at same time, judiciary precedents are needed to 'complete loopholes' within these general statutes.

As seen throughout the discussion, notwithstanding defects/benefits statutes and judiciary-made rules have, both are incident to the Rule of Law.

Greek Debate over what is incident to the rule of law and what are its benefits and defects.

Aristotle and Plato have debated about the Rule of Law. Barker writes about Aristotle's viewpoint and how being ruled by a constitution & rotation of office provides everyone with the same rights and worth, rather than being ruled by a king judging in accordance with his/her own feelings & thereby, not having a 'neutral' mind when exercising authority.

Plato suggests powers exercised by a ruler are governed by customary and community rules. Decisions are made by the minds of the rulers & their delegates. Humans have some innate knowledge of what is important and good in human life and because of this, we should not be constrained by laws & rules but by what our minds tell us what is right & just in the circumstances.

Plato claims two defects within the idea of rules by law. Laws are too general and they are permanent. General rules can neglect and overlook the differences of people and their cases. e.g. Three people in a boat and all three knew that they wanted to eat each other, hence kill each other. A kills B, sharing B's body with C. Is this is murder or manslaughter? Is there a claim for 'self-defence' as it was 'necessary' for the killer to not be killed by the deceased? The laws do not expressly provide on how to deal with this specific situation and judgement must then be made on moral principles ("principles" are discussed by Dworkin under the Modern Discussion section). Permanent laws are incompatible with changing demographics and technology. Laws must change at the same pace with the rest of society to maintain society's current perspective of justice & righteousness, but time delays in passing laws precludes this. For example, the new dog laws in New Zealand. Still now, the public waits for tougher dog laws to be passed on pit bulls and others alike. Even worse, there is no guarantee administration will be efficient. Here, Plato argues, rules fail to meet the differences of time and there is a need for rulers to exercise discretion as it encourages efficiency.

Another example Plato uses is a physician who treats people by the book rather than by looking at patient's particular & peculiar problems. Dr Patch Adams proved physicians looking at specific & different problems may lead to the patient not needing "text-book" treatment at all, but simple love & care.

Aristotle supported being ruled by law and not rulers. Judges may be swayed by passion or from public-hostility. In some cases, their actions should be checked against laws to ensure that their exercise of legally-conferred powers are consistent & impartial. This does not mean that the law is good but shows law is essential for everyone to look at and compare if just decisions have been reached.

Rules are crucial to maintaining neutrality within the legal system. Aristotle uses Plato's physician example and presents how rules for doctors are needed to maintain trust & honesty within the patient. Say the doctor conspired with the patient's enemy regarding what the patient's illness was, because the doctor thought she had the power to do what SHE THOUGHT was right in the circumstances. Here,...
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