Power and the Law. A Question of Justice or Political Elites' Interests?
Research Paper (postgraduate) 2018 14 Pages
Table of Contents
The question of Power, the Law and Justice
Law as an order of the sovereign
Divine Power and the Law
Law as an empowering agent
Law as a reflection of the dominant class
Contemporary Political Elites and the Law
This paper contributes to the understanding of the relationship between law and power. Premised on the Hobbesian conceptualization of law as the command of the sovereign, this paper traces the resilience of this conceptualization through to the modern democratic states. It looks at the change of the sovereign from an individual to an office and now the diffusion of power through different systems of checks and balances instituted by the modern political system of democracy. In doing this, the paper answers the question; to what extent is law the reflection of the wishes of political elites in a society? It explores the sources of law and the role of law as an organizing agent with a view of exposing the resilience of the political elite’s interests in law and in the use of law. The paper finally concludes that despite the changing nature of political systems, political elites have been able to preserve the law as a tool at their service. They have used their law making power to express their wishes in the law as well as used the complex procedural nature of law with several actors involved to serve their interest.
Power and the Law: A Question of Justice or Political Elites’ Interests
The relationship between the law and power in a political community has not been without controversies. This is not withstanding the conceptualization problems around the two concepts. Hans Morgenthau for instance conceptualizes power as comprising ‘anything that establishes and maintains the control of man over man’ (Morgenthau, 1978). This conceptualization is problematic in itself since it leaves a lot of room for interpretation of what ‘anything’ could mean in regard to establishing and maintaining rule of man over man. In similar vein, Thomas Hobbes in his conceptualization of law has stated that, ‘law is a command of the sovereign’ (T. Hobbes, 1998). In trying to establish the relationship between power and the law, then law becomes the expression of the wishes of the sovereign/ruler. The ruler therefore in exercise of his powers formulate the law.
This conceptualization of the law by Hobbes perhaps represent the all-powerful sovereign which could have probably made him name his work after the sea monster Leviathan (Otfried, 1995). However, contemporary Law and Society scholars are increasingly paying attention to the idea of legal pluralism with the view of “a multiplicity of legal orders that exists in every social arena” (Merry, 1988). To them, there are different types of laws at different levels from village, national types as well as transnational and international laws which have forced the nation-states to cede some of their monopoly and autonomy. Consequently giving power to some regions, groups of people or institutions as well as informing their behaviors. This even complicate the understanding of the relationship between power and law.
Despite the intricacies involved, this paper weighs into to the debate of the relationship between law and power. Subsequently, probing the proposition that law is the command of the sovereign as put forth by Hobbes. In so doing, the paper answers the question: to what extent is law the reflection of the wishes of political elites in a society? In answering this question, the paper explores the sources of law and the manner in which the law is implemented with an aim of understanding the prevalence of political elites’ interests in the processes. The task that is not limited to the Hobbesian state where there is the all-powerful sovereign but also to the democratic state with checks and balances put in place to guard against the use of power by the political elites. This paper therefore seeks to establish link between power and the law bringing into focus, the debates around these concepts and the empirical examples displaying the link both in Hobbesian kind of states and the modern democratic states.
The question of Power, the Law and Justice
Law as an order of the sovereign
John Austin just like Hobbes in his command theory of law has also conceptualized law as the order of the sovereign backed by a threat of sanction in the event of noncompliance (Austin, 1995). This blends closely with the Hobbesian contract theory which presents a case of a one-sided contract between the people and the sovereign without providing a counter contract between the sovereign and the people. The sanctions cannot be applied to the sovereign since it serves to ensure compliance with his orders akin to the nature of the contract presented by Hobbes. Consequently, the relationship between the law and the sovereign/power bearer leads to the question of justice and what is just and unjust. Justice is another philosophical concept that has raised more questions than answers. Many scholars and philosophers have attempted the conceptualization of justice but have ended up raising more questions than they have settled.
Thrasymachus for instance has proposed that, “justice is nothing other than the advantage of the stronger” (Hourani, 1962). From this conceptualization of justice, it is evident that the ruling elites or the power bearers will always make laws that serve their interest. He opines that, “And they declare what they have made—what is to their own advantage—to be just for their subjects…. This, then, is what I say justice is, the same in all cities, the advantage of the established regime” (Chappell, 2000). To this end therefore, justice in any given community revolves around the dictates of the laws in that community which in essence means the whishes/interests of the ruling class. On the other hand, Thyrasymachus has stated that, “just action is obedience to the laws of one’s state” (Hourani, 1962). This consequently means that a just action is reverence to the wishes of the ruling elites.
In similar vein, Socrates has opines that “the lawful and the just are the same” (Anderson, 2006). Similarly, Antiphon has proposed that, “Justice... is not violating the rules of the city in which one is a citizen” (Sparshott, 1988). From the foregoing therefore, it suggests that justice and a just action is decided upon on the basis of obedience to the laws. The laws whose origins are directly traceable to the ruling elites or as Hobbes say a reflection of the wishes of the rulers. An unjust action is disobedience to the wishes of the rulers hence an injustice. This has however raised concerns with scholars questioning the validity of these claims on justice and just actions. For instance if justice is taken as the ‘advantage of the stronger/ruler’, then the greed and callous behavior of a tyrant will be termed just. This kind of interpretation has led to probing of the works of Thrasymachus making some scholars to term his work as incoherent and mere slogans (Everson, 1998).
Scholars have therefore, critiqued the works of Thrasymachus on the view that behaving justly leads to benefits that others reap on your own behalf (this is justice as the advantage of the other). Similarly on the view of justice as a social control instrument employed by the powerful for the manipulation of the weak (this is justice as the advantage of the stronger, i.e. the rulers). This makes just individuals become fools since they have accepted the propaganda by the rulers to serve their interests at the expense of their own interests (Everson, 1998). The conception of the ‘advantage’ as zero-sum goods in terms of power, wealth and pleasures by Thrasymachus has been critiqued by Socrates who view ruling as a craft hence a positive sum in its effects. In the end however, neither Socrates nor Thrasymachus provide us with the proper definition of justice despite their incompatibility in understanding justice. This controversial relationship between the rulers and their subjects through the law, has raised more question especially on power-law and justice dynamics.
Divine Power and the Law
Scholars like Cicero have carried out more inquiries on what kind of laws should be obeyed with reference to the origin of the law. Cicero for instance has argued that, “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions” (Bix, 2010). In similar vein, Thomas Aquinas has opined that, ‘positive law ’ is derived from natural law (Aquinas, 1993). To them, for any law to be considered just and genuine its origin must be in harmony with nature. For instance since nature supports life, then murder will be against nature hence not a positive law. Cicero continues that: “We cannot be freed from [natural law’s] obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it” (Bix, 2010). This complicates the understanding of the relationship of power and law especially by denying the senate and other political elites voice on what becomes law.
It has been argued that, the actual duty of law is to guide individuals in their behavior and interaction with one another (Vago, 2009). The fact that individuals are allowed to access this law from nature means there is lack of standards which in turn undermines the main function of law. Despite Aquinas arguing that at times, natural law leave room for human choices based on local customs and policy raises further questions on who decides on local customs and policy giving room to individuals. Subsequently, William Blackstone has argued that; validity of human law is based on the harmony it enjoys with the law of nature (Blackstone, 1765). In similar vein, Aquinas has argued that, “Every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law” (Aquinas, 1993). This kind of claim makes a case for disobedience of the sovereign if his orders run counter to the natural law.
Just positive laws are therefore viewed as having “the power of binding in conscience.” This law has to be “ordered to the common” with the lawgiver not exceeding his authority and law’s burdens are imposed on the citizens fairly (Aquinas, 1993). This notion has been faulted by Austin who has argued that, in the case of an act whether beneficial or not is prohibited by the sovereign under the penalty of death, if I commit that act and say it was not consistent with the law of God I will still be punished. He says, “The Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity” (Austin, 1995). Despite Aquinas insisting that unjust law-law not consistent to natural law-should not be obeyed, he has warned that such a law can only be resisted if there is no much scandal or greater harm to such resistance (Aquinas, 1993). Consequently, softening the stand on the obedience of laws that may not be consistent to natural law. In the end therefore, the orders of the sovereign backed with the sanctions must be obeyed hence the display of law as an order of the sovereign.
Law as an empowering agent
Lon Fuller has rejected the view of law as “one-way projection of authority” where the government or the sovereign gives orders and the citizens obey (Fuller, 1969). Fuller believed that this approach missed the need for cooperation and reciprocal obligations between officials and citizens for a legal system to work (Jules L. Coleman, 2010). To him, law is “the enterprise of subjecting human conduct to the governance of rules” (Fuller, 1969). Law therefore only helps in obtaining social goods that require coordination of many people hence not a one-way projection of authority (Finnis, 2000). The positivist law scholars agree therefore that what counts as law in any particular society is fundamentally a matter of social fact or convention (Jules L. Coleman, 2010). Subsequently, law emerges as a product of a deliberation between the government, citizens and legal norms agreed upon as such.
The proposition that law has to be obeyed based on the source has been rejected owing to the fact that this could still play to the Hobbesian contract theory. For instance Austin has argued that, the sovereign is a particular person, namely that individual who, as a matter of fact, happens to have secured the habit of obedience, but who herself is not in the habit of obeying anyone (Austin, 1995). This has been closely tied to the idea of practical authority where commands are obeyed without assessing how good the reasons behind the command are in relation to the dictates of the command (Jules L. Coleman, 2010). The need for the evaluation of the content of the command has been given priority. In responding to the conceptualization of Sovereign as a person by Austin, Hart has observed that such an account fails to explain other salient features of law, namely the fact that legal rules remain valid or binding even after a sovereign dies or is otherwise disempowered, et al (Hart, 1994).
 For just and genuine law according to Aquinas four categorization of laws into eternal, natural, divine and positive (human) law.
 Is a person or institution whose directives provide individuals with a reason for acting (in compliance with those dictates).