The model of a political society in which law restrains and guides the implementation of power by rulers dates from the early stages of systematic thought in the Western world. The rule-of-law expression is not of ancient roots. It is said that it was popularized in the mid-nineteenth century by Albert Venn Dicey, the Vinerian Professor at Oxford and prominent commentator on the English Constitution (Cochrane, et al 12). But the ideal was articulated in the ancient world in a variety of forms of language. Aristotle in his Politics writes that.
he who bids the law rule may be considered to bid God and Reason alone rule, but he who bids man rule adds a constituent of the beast; for desire is a wild beast, and passion distorts the minds of rulers, even when they are the best of men. The law is reason unaffected by desire. (Cochrane, et al 203).
The last sentence has been translated even more remarkably:
“Accordingly law is intelligence without appetite” (Skoll, 23)
A lot of the incidents of our political tradition most intensely impressed on our consciousness concerned expressions of the rule of law. In Magna Carta the king promises the barons that he will not “proceed with force” against any free man, “except by the lawful judgment of his equals or by the law of the land” (Cochrane, et al 245). In the thirteenth century, Bracton is found declaring that even the king rules sub Deo et lege, “under God and the law” (Pustilnik, 34). More instantly relevant is the career of the notion in seventeenth-century England and in the writings of the eighteenth-century philosophies in Western Europe (Pustilnik, 34). It may be beyond that the notion of a rule of law makes its manifestation in modern Western history as a radical doctrine. The American and French Revolutions may in some sense be observed as its progeny. It is clear, for example, that Beccaria famous Essay on Crimes and Punishments, a powerful eighteenth-century espousal of the rule of law in criminal justice, comprises a frontal assault on the practices of oppression in his time. “Change in the level of punishment brought about through particular linkage between social structural change” (Melosi, 2) The rule-of-law concept possesses not only a long historical custom but also the attributes of surrounding extraordinarily broad areas of public activity and of conveying differing and at times conflicting understandings and meanings.
It would need an ambition far exceeding the purposes of this explanation to attempt a canvass of all the understandings and applications that have been proposed for the authority ideal (Skoll, 131). For that reason, the scope of these comments will be limited to areas that, although wide and of great complexity, take up only a portion of the terrain ordinarily claimed for the rule of law. At its core, the rule of law is concerned with defining the relations between citizens and their administration and, to an important extent, the dealings of citizens to each other. These remarks, though, are restricted almost entirely to problems of containing exercises of power by public officials within appropriate legal norms expressed in rules or through other devices that constitute the battery of the rule of law (Pustilnik, 34). No thought will be given to the role of legality in defining contractual and commercial relations of private parties, although its contributions in stabilizing such relations have historically prompted some of the strongest support for the rule of law. The duty of citizens, implied in the rule of law, to reveal fidelity and obedience to legitimate law; although, as succeeding remarks may demonstrate, epidemic breach of the law by members of liberal societies may make difficult, and sometimes unfeasible, enforcement of the law’s obligations on those officials who brandish the public force.
The comments that follow do not deal primarily with the rights of individuals bogged down in the legal process. Such questions are often associated to the issues now under thought, and indeed one can argue that respect for the systemic values advanced by the rule of law makes it all the more likely that human rights will be appreciated. The stress, however, is on the formal aspects of law than on substantive rights (Cochrane, et al 45). Although the two areas are regularly inextricably tangled, there are many universal issues arising from the administration of criminal justice, often deserted and of great significance that do not directly and honestly impose on the substantive rights of persons (Skoll, 56).
Maybe the most obvious restriction on the scope of the present remarks is that which limits them mainly to the areas of criminal justice. The readiest clarification of the limitation, of course, is the limited competence of the writer. A more substantive case for the focus on criminal justice can perhaps be made. If that is the case, it might well begin with a scrutiny of Montesquieu: “It is… on the goodness of criminal laws that the liberty of the subject principally depends,” he wrote in The Spirit of Laws” (Cochrane, et al 34). The knowledge already obtained… concerning the surest regulations to be observed in criminal judgments, is more attractive than any other thing in the world.” The declaration, calculated to bring joy to teachers of criminal law, merits a minute of serious consideration by others. According to Akers, criminal and delinquent behaviors’ is acquired, repeated and changed by the same process as conforming behavior (Akers, 115). The legality ideal tackles its sternest tests in the areas of criminal justice for a huge number of reasons. Primararily, the suggestion of chance state power are mainly somber here because of the harshness of the sanctions administrated by the criminal law and of the status-degrading potency of criminal events. Second, the threat of crime and the indignation it produces often tempt officials to commit and the public to approve negligence toward, and sometimes pay no attention to, the legality of their efforts at crime repression (Skoll, 12).
But more needs to be said. A basic end of a legal system in a liberal society is to add to conditions consistent with the development of a powerful sense of independence and personhood in its members. Individuals capable of directing their own lives and fortune and of making their aid to civic well-being Most lines of action in a society are conventional (Akers, 34). These fundamental objectives are put in danger by uncontrolled criminality and by subjective responses of countervailing power by public officers or by laws as unsure in their meanings and applications as to deteriorate the sense of security of individual members of society. furthermore, the criminal justice system is the great educator. What large numbers of the populace know or believe about the legal order is resultant principally from their comments of and sometimes participation in the criminal justice system. Such impressions therefore are influential determinants of the levels of trustworthiness to the law demonstrated by the population. For those attracted to sacrifice the values of authority while pursuing substantive objectives in other areas of public policy, suggestions on the effect of such erosions of the rule of law on the management of criminal justice might well induce clear-headed second thoughts.
An approach which is well worth discussing in this paper is made by the social bond or social control theory. As an alternative to looking for issues that make people become unlawful, those hypotheses try to explain why people do not become criminal. Akers identified four main characteristics: “attachment to others”, “belief in moral validity of rules”, “commitment to achievement” and “involvement in conventional activities” (Akers, 12). The more a person uses those characters, the less are the chances that he or she turns out to be deviant (or criminal). Conversely if those factors are not there in a person, it is more likely that he or she may become criminal. Akers expanded on this theory, with the suggestion that a person with little self control is more likely to turn out to be criminal. An easy example: someone wants to have a big yacht, but does not have the income to buy one. If the person who cannot put forth self-control, he will try to acquire the yacht (or the wealth for it) in an illegal way; while a person with high self-control will (most likely) wait or deny themselves that want. Social bonds, through peers, parents, and others, can have a contradictory effect on one’s low self-control (Pustilnik, 38). A person who belongs to the low socio-economic stratum and question that makes a distinction between families with criminal children from persons who are not criminal is the control used by parents.
In conclusion, these remarks are not presented as an exercise in jurisprudential investigation (Skoll, 167). In its place, the focus will be placed on institutional performance, in an effort to gain more comprehensive understandings of rule-of-law problems revealed in an operational legal order, to evaluate the vigor of the legality ideal in a wide range of institutional contexts, and to query how that vigor may be renewed where it appears to fade. Nothing in this attempt is planned to challenge the significance of jurisprudential theory in these areas. Much more of jurisprudential theory and the construction of jurisprudential models relating to the formal aspects of law are required. These remarks reflect a confidence that theoretical assemblies in the legal discipline are strengthened and gain improved relevance when firmly based on sound understandings of institutional realism; and, indeed, lacking that, theory is frequently in peril of irrelevancy (Skoll, 134).
During his ruminations on the rule of law, Dicey allocated first importance to what he called the “predominance of the legal spirit” (Cochrane, et al 78). It was not a novel insight. Aristotle previously had offered an analogous observation. The rule of law, in any case, is a creature of political authority, which is to say that the validity ideal rests on actions and attitudes of public officials whose powers are, in turn, incomplete and directed by it. It positions in the double relationship of doubt toward and reliance on governmental power. The proposal has proved contradictory to many persons rising from totalitarian regimes and can be made comprehensible only by reference to tradition, spirit, and habit so embedded, Skoll’s aim in his book, and his accomplishment is to reshuffle our perceptual fields, to confront the deadening effects and dogma of common sense, and to request us to see differently so that we may act differently. So much of law and public policy turns on queries of competing descriptions and analogies, and challenging any scheming analogy is always a perilous business. We enter an open room of rethinking and negotiation, a space of ethical reflection and political effort, a space where we have to rely not on rules so as much as we have to rely on our own moral instinct, our perplexing questions, our assurance to the dignity of persons, our faith in fairness. Skoll cuts with accuracy to the cerebral roots of our thinking about criminal justice, turns over levels of bewilderment and myth that currently says aloud criminal justice policy, and opens a window winds to blow.
Works Cited
Akers, Ronald. “A Social Learning Theory of Crime”. Criminological Theory: Past to Present. Los Angeles: Roxbury Publishing Company. 1994.
Cochrane, John. Melville, Gaynor. Marsh, Ian. “Criminal Justice: An Introduction to Philosophies, Theories and Practice”. Routledge, 2004.
Melosi. “Gazette of Morality and Social Whip”, Sage. 1970.
Pustilnik, Amanda. “Prisons of the Mind. Social Value and Economic Inefficiency in the Criminal Justice Response to Mental Illness”. Journal of Criminal Law and Criminology, Vol. 96, 2005.
Skoll, Geoffrey. “Contemporary Criminology and Criminal Justice Theory. Evaluating Justice Systems in Capitalist Societies”. Palgrave Macmillan, 2009.