RAZ AND ALLAN (University of Oxford versus University of Cambridge)
Raz (1979) and Allan (1993) are two of the most influential Lawyers in England, at the present time. Hence, we should examine their political idea.
As Dicey did, they gave to Role of Law some different meanings. They attempted to “re-define” Rule of Law as a set of Moral and Legal Principles. But, their attempts have leaded to create a contradictory and nebulous concept, as I told supra (above).
It is not a case that: everyday legal practice has refuted what they affirmed.
Their different views are expression of the Historical Rivalry between the two Universities.
RAZ
Raz (1979) attempted to challenge the “skeptic” view.
According to Raz, “rule of law is a political ideal which a legal system may lack or may possess to a greater or lesser degree”. From this idea, some “substantial” principles can be derived by Intuition[1].
But, Raz’s theory is in contradiction with English Legal History and Legal Practice.
“All law should be prospective”. Are You sure? Do You remember “Gold Standard”? Have you heard about the University of Cambridge?
One of the principles, which Raz got by Intuition, was: “All law should be prospective …”. Whereas this principle appears to be true inside most of the Legal Traditions (exempli gratia, Italian one), it is false inside English Legal System!!
English Parliament, for example, violates this “principle” in 1931 with “gold standard”. The Government ordered to the Bank of England to not exchange Notes into Gold. Then, the Parliament: both, created an Act, which made “the paper currency inconvertible”; and, ratified all the illegal actions done by the Government and the Bank of England before the Act (Jennings I. 1959). In English Tradition, Banks and Financial Matters have always been above Law!!
Also at the University of Cambridge, this principle is not followed at all. An example is given in the Appendix[2].
“Law must be capable of guiding the behaviour of its subjects” & its Logic Inferences!
Raz tried to infer some logical consequences from his basic Intuition: “law must be capable of guiding the behaviour of its subjects”. But, these deductions are: according to the Formal Logic, invalid; according to the Logic of Value, a rhetorical game, a sophism. Nothing more! Nothing less!
First, Raz confused the Principium of Supremacy of Law with a judgment about Law’s Nature and Aim.
Second, Raz put together some ideas that he gathered from different historical experiences. Then, he told them to be a logic consequence of his basic “Intuition”!!
Next, Raz pretended to have used Formal Logic for inferring them. But, he could not. Law is a normative language. Formal Logic can be used only within descriptive language. The Logic of Value, on the contrary, can be used with normative language. But, the latter is just Rhetoric, Sophists’ Art, for supporting some argumenta instead of some others. It does not allow inferring anything of true or valid!!
In other words, Raz forgot the Law of Hume. Yet, Hume was Scottish. So, it is normal that Oxford men do not like him!
Law of Hume; Formal Logic and Logic of Values
The Law of Hume is an important criterium of demarcation between empirical facts and not empirical facts. The Law of Hume defines the boundaries between the Realm of Formal Logic and the Realm of Logic of Values. Only in the former: both, the statements can be evaluated in terms of true and false; and, the reasonings in terms of valid and invalid. In the letter, none of them are possible.
This is as everything is just: a political choice; a game of rhetoric; a sophism; a decision made to defend some interests against others. The Logic of Value, or New Rhetoric a là Perelman, does NOT permit any control on: both, validity; and, truth; … about what it is said.
So, Raz cannot apply the formal logic within the normative language[3]!!
As a result, he put inside to Rule of Law his Political ideas.
All in all
Raz made several mistakes. They were so huge that: if students had made them, they would not have passed their exams!!
Soooo …,
… why has Raz’s theory been so influential?
It was only because he was a Lecture of the University of Oxford. Indeed, everybody, who supported his theory, was used to say: “ipse dixit”!; “ipse dixit”!; “ipse dixit”!.
INTERLUDE: OBITER DICTUM (Social Psychology; Rousseau; Hobbes)
Social Psychology is something of exhilarant. Social Psychology is one of the few disciplines that are worth to be studied in Psychology. Social Psychology shows how the Worst of Human Behaviours is not the outcome of individual dispositions and/or traits, but the results of psychosocial mechanisms such as: conformism; social pressure (Asch S. E., 1951, 1955 a, 1995 b, 1956); compliance to Authority (Milgram S., 1963, 1965, 1974; Hofling C. K. et al. 1966; Brief et al. 1991; Brief et al. 1995); groupthink (Esser J. K., 1998; Esser J. K. and Lindoerfer J. S., 1989; Moorhead G. et al. 1991); effect of mere exposition (Zajonc R., 1968); social norms (Sherif M., 1935, 1936, 1937); social identity (Zimbardo, P. G. 1972, Prison’s Experiment); etc…; etc… .
Truly, each individual is a genius (a real GENIUS), and “endless” GOOD a là Rousseau (Emile), until he/she is NOT corrupted by society. Society “transmutes” its members in “stupid beasts” (a là Hobbes)!! If the group’s stupidity is increased, the person’s foolishness and brutality are also increased!! So …, both Rousseau and Hobbes are right. Human beings born “endless good” in their natural state as Rousseau stated. Then, society makes them become “stupid beasts” as Hobbes (and even Rousseau) argued. But, Hobbes was wrong when he suggested his Leviathan. A central power (which: decreases individual rights and liberties; and, enhances social control) creates and enhances only brutality. It will increase social conflict and violence as it produces a permanent captivity. The Global Panopticon makes this be even stronger. Indeed, Hobbes’ ideas[4] were developed in England under a Central Power. Hobbes had never known human beings in their Natural State, but he knew English people educate at the University of Oxford!! The brutal and violent human beings, who he knew, were the result of that kind of society and education. Hobbes wanted to ingratiate himself with the existing Central Power, when he wrote the Leviathan.
The groupthink, the conformism, the social pressure, the compliance to Authority, the social identity, leads people to act irrationally. Under those factors, people lose their natural and original ability to act like intelligent and moral beings.
Indeed, the Psychosocial Mechanisms tend to prevail onto Individual’s REASON and MORALITY[5]. Rarely are individuals an exception! The Academic World, indeed, is moved by those mechanisms. The same psychologists, who pretend to know them, are determined more than others by them[6]! Psychologists do not help individual freedom and determination, but social homologation. This is a fact. We should not be surprised that a recent experiment has found people to be more inclined to compliance to Authority than they were at Milgram’s time. But, this is very dangerous. As History taught and proved, all the Worst Things, which happened in the Human History, happened when the compliance to Authority prevailed onto individual reasoning and determination.
At the end, the psychosocial mechanisms have to be considered for studying any Social and Psychological Science and Construct, as they work: both, intra the experts’ group; and, infra the experts’ group. Psychosocial mechanisms are the deus ex machina.
An Example of Psychosocial Mechanisms in Legal Setting
During a Civil hearing, a Judge invented a regulation that did not exist. He was not crazy. He wanted: both, to state his power; and, to taste the ability of lawyers to defend legality. He took the Code of Civil Procedure and he pretended to read a regulation. But, he invented one completely.
At the hearing, twenty lawyers (more or less) were present for different reasons. None of them recognized the mistake. Only one person (who was NOT a Lawyer, yet[7]) was able to recognize that the Judge was inventing the regulation! He took the Code and started to read the real one, meanwhile all the rest of the lawyers continued to believe at the inexistent regulation that the Judge invented[8]!! It was extremely amazing to see them!! After the mistake was clarified, some of the expert Lawyers continued to believe in the inexistence regulation!! Outside the Court’s room, they argued that maybe it was not on the Code, but in some other Act!?!?!?
Back to Raz …
To sum up, the success of Raz’s theory cannot be explained by legal reasons. But, it can be elucidated by those psychosocial mechanisms, I told supra (above).
People believed in Raz’s theory as he was a Lecturer of the University of Oxford. It was enough for them. It was not a matter that his theory was nonsense inside the English Legal Tradition!!
PAINE VERSUS BURKE: GENERAL WILL AND HISTORICAL EXPERIENCES
English Legal System, indeed, is not based: either, on ontological principles (a là Natural Law); or, General Will (a là Paine). It is based on historical rights (a là Burke). The latters have been created by, and reflected the, pro tempore relations of Power among people and social strata / classes.
The General Will a là Paine, indeed, requests a Social Contract. In other words, the Social Contract is the Written Constitution of a Nation. Whereas most of the Modern Legal Systems are based on a Written Constitution, English Legal System is NOT.
English Legal System is, in somehow, still based on Historical Rights a là Burke. This means people’s rights: both, do not come from any eternal ontological principle; and, do not come from any social contract. But, people’s rights come from the pro tempore relations of power that are negotiated, continuously, inside the social conflict and dynamics.
For these reasons, the Westminster Parliament: both, has no limit; and, cannot be bound by its previous decisions.
It can enact what it pleases, as whatever it pleases to the Parliament represents and reflects the pro tempore rights and relations of power that have been determined by the eternal social conflict.
An example of a Legal System a là Burke.
An example of a Legal System a là Burke is given by the International Law.
After the Second World War, the International Tribunal of Nuremberg (1945) and Tokyo (1946) were created. They were an act of creation made by the Winners. These Tribunals did not comply: either, with the ongoing International Law; or, with existing eternal international principles. It was a mere act of creation, which was able to transmute the International Law: from, a Law for States a la’ Grotius; to, a Legal System that includes individuals like possible titular of rights and duties a la’ Kelsen. It was simply as: the pro tempore “most powerful” a là Trasimacus wanted it. Nothing more! Nothing less!
Before the International Tribunal of Nuremberg (1945) and Tokyo (1956), this has never happened.
For instance, after the First World War, this kind of proposal was considered impossible. France and England proposed the creation of a Tribunal for processing the German Imperator “… for supreme offence against international morality and sanctity of treaties” (Greppi E., 2001). But, according to the International Law, it was unmanageable as International Law refers only to States’ responsibilities. International law could not be applied to individuals (Orlando V., 1940).
Although the English Prime Minister Lloyd and his French colleague Clemenceau argued the existence of two legal precedencies (the cases of Luis XVI, in France; and Charles I, in England), the wisest and sagest Italian Prime Minister Orlando (an outstanding jurist) observed that both of them were a legal precedence only inside the National Law, but not inside the International Law.
They simply stated that a sovereign can be judged according to the National Law. But, they do not say that International Law can be applied directly onto individuals, even if they are organs of the State (such as: imperator).
ALLAN
Whereas Raz started from Intuition, Allan (1993) began from the “general living idea” (which English lawyers have about Rule of Law). According to Allan, English Lawyers understand Rule of Law as “… an amalgam of standards, expectations, and aspirations”. Rule of Law “encompasses traditional ideas about individual liberty and natural justice, and, more generally, idea about the requirements of justice and fairness in relations between government and governed”.
Allan’s method was better than Raz’s method. As I explained supra (above), English Legal Tradition is not based onto ontological principles, but historical rights. Hence, Allan (who has been a finer lawyer than Raz) wanted to start from the pro tempore idea, which Lawyers had at that time, about Rule of Law.
Unfortunately, Rule of Law lost its deep meaning. What he found was a simulacre, as I explained supra (above).
Rule of Law like: Substantial and Procedural Fairness; Natural Justice; Equality; Separation of Powers … Where and When!?!? Have you ever been at the University of Cambridge?!?!?
According to Allan, Rule of Law expresses the: concept of Justice (substantial and procedural fairness); notion of Equality; Universal Suffrage; Separation of Power.
Actually, Allan failed to formulate a descriptive theory of the Rule of Law. Allan presented: either, his own Legal and Political idea about Rule of Law; or, the pro tempore more fashionable Legal and Political idea, which English Lawyers had about Rule of Law at that time.
But, Rule of Law is not what Allan said! The facts give opposite evidences.
For instance, Rule of Law does not include at all, the separation of Power.
Separation of Power and English Legal System
Rule of Law has nothing to do with Separation of Powers.
Separation of Power is a different “subject matter” (Conklin W. E., 1989). Moreover, it is NOT a principle of English constitutionalism.
Although one of the first philosophers, who formulated the doctrine of the Separation of Power, was John Locke in the 1690; the English Constitution has never ever recognized any real division of Powers, as it was done, exempli gratia, in France and/or in U.S.A. (Fenwick, 1993).
According to Fenwick (1993), the division of Powers inside the English Constitution does not exist. There is nothing of Montesquieu’s ideas.
The “judges can create law”.
“The ministers, who are member of executive, sit as members of the House of Commons which is a legislative body”.
“Lord Chancellor is a minister as well as head of the judiciary, and it is also a member of the House of Lords in its legislative capacity”.
“The executive can effectively determinate the legislative output of Parliament, theoretically a separate body”.
On the same advice, Schwartz B. (1955) stated “in Britain the doctrine of the separation of powers today means little more than an independent judiciary”.
English constitutionalism is based on the fusion of Powers rather than their separation (Barendt E., 1998). According to Bagehot W., “the efficient secret of English … constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers”.
This is confirmed by the Report of the Committee on the Ministers’ Power (1932): “In the English constitution there is not such thing as the absolute separation of legislative, executive, and juridical power; in practice it is inevitable that they should overlap”.
This is an evidence of how everything, REAL EVERYTHING, can be put inside a simulacrum!
Universal Suffrage
Universal Suffrage is not part of Rule of Law at all. It is a political choice, a legal principle and/or value, which is completely autonomous, independent, from Rule of Law. Otherwise, the same English Legal History has confuted Universal Suffrage to be an aspect of Rule of Law!!
Equality
I have already spoken about it, when I wrote about the second principle of Dicey.
Procedural and Substantial Fairness … Does Allan remember when a Graduate Student of the Faculty of Law invoked Rule of Law at the University of Cambridge? What has it happened to …Fairness?
Rule of Law does not include any procedural and substantial fairness as it is proved by English Legal History and Practice. On the contrary, it requests only the formal respect of the Law.
Indeed, when Rule of Law is not applied like Supremacy of the Law above Power, Rule of Law expresses the principle of Formal Validity. Nothing more! Nothing less!
But, it is more fashionable to tell people that English Legal Tradition overflow of Fairness (procedural and substantial fairness)! However, this is just political propaganda. They are empty words, behind which there is a simple principle of Formal Validity. That is all, Folks!!
Unfortunately, even this principle of Formal Validity is not respected most of the time. So, Rule of Law, at the end, loses all its meanings. Under the sermons about fairness, there is nothing.
An example of this happened at the University of Cambridge, Faculty of Law. It happened where, the best Lawyers were. It is reported in the appendix.
It shows how Rule of Law is not applied: either, like formal validity; or, procedural and substantial fairness. But, it is applied as: both, Power can do whatever it pleases; and, Authority can and must use its powers to hide its own responsibilities.
Fairness is an “inexistent” reality. It exists as long as people are forced to be silent. It exists as long as all the abuses, unlawfulness and illegalities, are hidden.
RULE OF LAW LIKE PRINCIPLE OF FORMAL VALIDITY
To sum up, Rule of Law is the less evocative name of the principium of Supremacy of the Law above the Power.
It means two basic things.
First, it affirms that any Power to be legitimate have to be: both, given by Law; and, used complying with the procedures and porpoises that Law stated.
Second, for anyone in any position, it affirms a principle of formal validity. This principle requests people to obey and to apply Law.
In other words, Rule of Law is the basic command of a Legal System.
The principium of the Sovereignty of the Parliament, on the contrary, states that Parliament is the only subject that it is above Law. This is why Parliament: both, can create and change the Law; and, cannot be bound by previous Law.
These principles are not a tautology as Raz (1977) affirmed. They are the two basic constituents of any modern Legal System. Without them, the modern Legal Systems cannot exist. Without them, only Ancient Regime and despotism exists.
I have to make a clarification.
This principle makes a distinction between two situations. In the first one, a person has some kind of power onto other persons. In the second one, there is not the former condition. In the first case, it is allowed to do only what the Law allows to do. In the second case, it is allow doing everything, except what the Law denies.
Replying to the critics about this idea of Rule of Law
Rule of Law, as I postulated, has been accused to be unable to distinguish between a despotic government and a democratic one (Turpin C., 1995; Raz 1977). These critics are unjustified and unfounded for the reasons I have explained supra (above).
Actually, Rule of Law can distinguish between a despotic government and a democratic one, only, and only if, it means Supremacy of the Law above Power. Truly, the distinction between despotic governments and democratic governments cannot be done by a concept of Rule of Law, which is reduced to be a nebulous and vague concept as some authors have done.
As I explained, it makes Rule of Law become a simulacre of its real meaning. It has two consequences: first, the attention is moved from Supremacy of Law above Power to something else; second, Rule of Law becomes a vague concept, an instrument of Legal Mystification a là Bentham. In the latter case, Rule of Law can be applied in different manners from case to case. At the end, a Despotic Government will be possible behind the appearance of a Democratic one!!
There is only one way to distingue between despotic governments and democratic governments. The democratic governments need three elements:
- Rule of Law applied like Supremacy of Law above Power;
- a corpus of fundamental principles and values written inside a Constitution (Social Contract);
- Judges, Lawyers and people, who are brave enough to defend those values against the tendency of Power to go beyond them.
Without these three conditions, there is only a despotic government. It could be more evident (overt) or more veiled (covert), but it remains a despotic government.
Although English constitution is “one of the first” (Boutmy E., 1891), it has not evolved into lex scripta. English Lawyers, instead of attempting to create a corpus of legal values, have tried to put some of them inside Rule of Law. But, it was the wrong choice. It leads to create vague concepts as I have told.
On one hand, according to Jeffrey Jowell (2000), some authors attempted to transform Rule of Law in a principle of institutional morality, as it was the only instrument they had to: both, limit “the abuse of power”; and, force power to be fairly exercised.
On the other hand, English lawyers love ambiguous concepts, despite lex scripta[9]. This is as: “Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote them” (Bishop Hoadly, 1717). Ambiguous concepts give Lawyers far more power to be free to interpret Law as they like. This allows Law to be applied in very different ways from case to case, as it was argued by Bentham. It is an instrument of Legal Mystification.
LAW’S MYSTIFICATION
Bentham described five instruments for mystifying Law. But, mystification is not only a legal issue. It is a common Social and Psychological Sciences affair[10].
Bentham’s five mystification instruments
The first instrument employs descriptive instead of normative statements. This allows full arbitrary power. Those statements become: for someone, compulsory commands; for someone else, not obligatory directives.
The second instrument uses wide and void concepts. They can be interpreted, from time to time, from person to person, as one likes.
The third instrument applies legal simulation. They make fiction become more important than facts.
The fourth instrument engages pseudo-descriptive statements. They are in their appearance descriptive, but they tend to lead people: conducts; and, beliefs.
The fifth instrument involves pseudo-technique language. It makes the discourse be incomprehensible for profane people.
Rule of Law and Legal Mystification
Rule of Law had its own clear meaning. It expressed the principium of the Supremacy of the Law above the Power. Then, it was made a nebulous and void concept.
In this way, its original meaning has been weakened. So, it has become an instrument of mystification since it began to be a nebulous concept.
Exempli gratia.
From one hand, people believe to live in a Legal System based on: procedural and substantial fairness; equality; and plenty of other noble principles.
On the other hand, they do not simply “exist”! They are NOT for everyone! They are applied in very different manners from case to case.
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[1] Intuition seems to be a characteristic of the University of Oxford’s actual Jurisprudence. Also Finnis, indeed, based all his work about Natural Law and Natural Rights on Intuition!
[2] See Appendix, Does “Rule of Law” mean that “All law should be prospective” a là Raz? NO, NO, NO, and still NO! Rarely have I seen a desperate case as You are! … But … wait a moment. Who is Raz? Here at Cambridge, we have never ever heard about Him. Here at Cambridge, we do not say that name!
[3] There is only one case where it is possible. The structure of the sentence is a syllogism. The main assumption is given by the Legal Norms. The second assumption is given by the Facts. The conclusion is given by the logic consequence between these two assumptions. Yet, this syllogism tells only: the formal structure of the sentence is logic. It does NOT tell anything (at all) about the content of the two assumptions. Both of them can be false and untrue. Thus, a logic conclusion can be made by false/invalid assumptions.
[4] Exempli gratia : Homo Homini Lupus est; Bellum omnium contra omnes ; etc… .
[5] The present writer studied plenty of these phenomena mainly among: Psychologists; Legal and Academic Contexts; Neighbour’s relations; Group’s dynamics.
[6] Actually, psychologists are the worst of all. They are so obsessed to appear normal, that they tend always to:
- comply with Authority’s Requests (it does not matter how much they are illegitimate, illegal and/or amoral);
- Homologate them(selves) to the groupthink;
- Etc… .
They consider mentally ill, whoever acts outside the Normal Distribution. Thus, they enslave themselves inside the Normal Distribution they created. Then, they attempt to enslave all the rest of people inside their Normal Distribution!! At the end, they are both prisoners and gaoler of a New Tyranny: the theocracy of the idol Homologation. Like Procuste, they cut out everything they believe to be outside the standards they give!
[7] And, then who chose to not become like them!
[8] This shows how much strong social mechanisms and Authority obedience are.
People tend to follow uncritically: Authority; and Majority!!!!!
But, … remember the lemmings! Remember the lemmings! Remember the lemmings before following the Majority!!!!!
[9] Latin for: written Law.
[10] In particular, it is very common in Psychology. The present writer has studied plenty of cases of Mystification, which were done by Psychologists. Moreover, whereas Law is bound by facts, Psychology is not. Most of the things, psychologists say, are only their own fantasy! Psychology is only a game of interpretation. So, it is very easy for them to abuse of their power and position. See: Epis L. (2011/2015), De Nova Superstitione – Alcune Questioni sullo Status Epistemologico della Psicologia, Psicopatologia e Psicanalisi. Published in: www.lukae.it. See page “Psychology & Epistemology – Psicologia & Epistemologia”.