SIXTEEN: THE DECLINE OF THE LAW
1 the German Origins of the Reaction
The development of the rule of law in Germany is significant, as it laid the groundwork for both liberalism and the subsequent shift towards socialism or a welfare state. This change happened quickly, influenced by political and intellectual factors. The unification of Germany led to beliefs that society could be redesigned purposefully, supported by philosophical ideas of the time. The call for the government to ensure not just formal but substantive justice grew, reflecting a growing understanding that equal treatment could overlook real inequalities. This shift emphasized the need to protect the weak from the strong, challenging traditional notions of justice.
2 Schools Opposed to Traditional Limitations
Various political views gained traction in the early twentieth century, driven by a desire to increase government power and limit legal authority. Four main movements supporting this idea were legal positivism, historicism, the "free law" school, and the "jurisprudence of interest." The jurisprudence of interest focused on assessing the specific interests in legal cases rather than applying strict legal rules. The free law school aimed to free judges from rigid rules, encouraging them to use their judgment instead. Historicism promoted the idea that society could evolve based on historical insights, leading to a rejection of unwarranted rules.
3 Legal Positivism
Legal positivism is a belief about law that directly opposes the idea of natural law. Natural law suggests there are universal rules that exist outside of human-made laws, which guide justice and people's behavior. In contrast, legal positivism claims that law is only made up of commands created by humans, denying that there are any higher rules that can limit what laws can be made.
Supporters of natural law believe in these fundamental rules that aren’t created by any lawmaker. They think these rules should guide the justice of the laws we have and our obedience to them. On the other hand, legal positivists argue that law is simply what is written down by legislatures, without considering any moral or ethical limits.
In Germany, legal positivism gained a lot of influence in the late 1800s. This led to a change in the understanding of the "Rechtsstaat," or rule of law. Instead of focusing on laws that protect individual rights, it became about whether actions were legal as long as they were allowed by law. This shift meant that the protection of personal freedoms became less important, and eventually, there were fewer limits on government power.
By the early 1900s, Hans Kelsen’s "pure theory of law" strengthened these ideas further, suggesting the state is the same as the legal order. This approach led to a view where government actions could be considered legal, even if oppressive. It enabled totalitarian governments to rise, which believed they could act without being limited by law, as seen in places like Nazi Germany.
4 the Fate of Law Under Communism
In early communist Russia, legal theory showed a complete rejection of the rule of law. Russian theorists said that instead of general laws, decision-making shifted to individual administrative actions. They believed that there was no real difference between laws and administrative rules. The Soviet system aimed to establish a government that ignored the rule of law and freed rulers from any limits on their power. There was a belief that as socialism took over, law would vanish, and focus would shift to what was best for the community rather than individual rights. All legal matters became administrative decisions instead of fixed rules.
5 the Socialist Lawyers of England
Developments in England regarding the rule of law began to change early on but initially received little serious theoretical attention. By 1915, it was noted that respect for the rule of law had declined significantly, yet many continued to believe that individual liberties were well protected. Despite a notable 1929 book highlighting the incongruities with the rule of law, it mainly stirred controversy rather than leading to substantial change. The book resulted in the appointment of a committee to assess ministers' powers, but its conclusions tended to downplay the risks.
A group of socialist lawyers and political scientists led by Professor Harold J. Laski challenged traditional views on the rule of law. They argued, particularly through Sir Ivor Jennings, that the concept of equality before the law was unrealistic, and that the rule of law, as understood in previous times, was losing its relevance. Jennings believed that the rule of law and the discretionary powers of administrators were not inherently opposed, criticizing the idea that judges serve as the only authority to enforce the law.
Further advocating for these new views, Professor W. A. Robson suggested that the distinction between law and policy was outdated. He argued that administrative tribunals should be free from the constraints of established laws to effectively enact social policies. His ideas gained traction even among conservatives, reflecting a broader acceptance of socialist doctrines, which marked a significant shift in thinking about the rule of law.
Some less prominent socialist lawyers have gone as far as redefining the rule of law to mean whatever Parliament decides, suggesting that democratic decisions, even if unwise or unjust, would uphold the rule of law. This perspective has contributed to the increasing power of administrative agencies over citizens’ lives, leading to growing concerns about the erosion of individual rights. Recently, public awareness of excessive bureaucratic power has begun to spur discussions about a potential return to stronger protections under the rule of law.
6 Development in the United States
Developments in the United States regarding public administration and legal theory have advanced significantly, often more than in Great Britain. The “public administration movement” was inspired by European reform movements and aimed for government efficiency, trying to gather support from businesses for socialist goals. This movement challenged traditional values of individual rights, like the rule of law and the limits set by the Constitution. People in this movement tended to overlook the importance of law and economics while trying to create a “science” of administration. They believed that liberty was linked to people’s ability to enjoy consumer activities.
By the early 1920s, there was a shift in how administrative powers were viewed in the U.S. Legal oversight from the courts started to decrease, allowing public officials more freedom to make decisions. There emerged an idea that the courts should only check if public officials were acting within their legal limits. Resistance to strict court control began before World War I, especially highlighted by Senator La Follette’s campaign in 1924, which criticized judicial power.
In the following years, there was much critique of the idea that the government should be based on laws, with some scholars arguing for more trust in those in power. This attitude matched a broader trend toward granting more administrative authority, especially during the Roosevelt era. Concerns about these changes grew by the late 1930s, leading to investigations into the consequences of moving toward more administrative control over laws and individual rights.
7 Signs of a Revival of the Law
Many countries are showing signs of a revival of the law in response to past totalitarian regimes. This renewed interest emphasizes the importance of individual rights and the rule of law, which some socialists previously underestimated. A notable figure highlighted this change by stating that while democracy is valuable, it is crucial for preserving the rule of law, and without this, democracy may not last. This shift includes the increased acceptance of judicial review and natural law theories in places like Germany and France, where scholars have pointed out that previous ideas weakened individual rights, leaving them vulnerable to government control. In Great Britain, there are efforts to restore courts as the final authority in disputes, emphasizing that decisions should be based on known laws rather than arbitrary choices. However, gaps remain, and more independent courts may be needed to protect citizens. The international community also recognizes the importance of the rule of law, but there is still uncertainty about fully committing to and understanding these principles in today's context.
1 the German Origins of the Reaction
The development of the rule of law in Germany is significant, as it laid the groundwork for both liberalism and the subsequent shift towards socialism or a welfare state. This change happened quickly, influenced by political and intellectual factors. The unification of Germany led to beliefs that society could be redesigned purposefully, supported by philosophical ideas of the time. The call for the government to ensure not just formal but substantive justice grew, reflecting a growing understanding that equal treatment could overlook real inequalities. This shift emphasized the need to protect the weak from the strong, challenging traditional notions of justice.
2 Schools Opposed to Traditional Limitations
Various political views gained traction in the early twentieth century, driven by a desire to increase government power and limit legal authority. Four main movements supporting this idea were legal positivism, historicism, the "free law" school, and the "jurisprudence of interest." The jurisprudence of interest focused on assessing the specific interests in legal cases rather than applying strict legal rules. The free law school aimed to free judges from rigid rules, encouraging them to use their judgment instead. Historicism promoted the idea that society could evolve based on historical insights, leading to a rejection of unwarranted rules.
3 Legal Positivism
Legal positivism is a belief about law that directly opposes the idea of natural law. Natural law suggests there are universal rules that exist outside of human-made laws, which guide justice and people's behavior. In contrast, legal positivism claims that law is only made up of commands created by humans, denying that there are any higher rules that can limit what laws can be made.
Supporters of natural law believe in these fundamental rules that aren’t created by any lawmaker. They think these rules should guide the justice of the laws we have and our obedience to them. On the other hand, legal positivists argue that law is simply what is written down by legislatures, without considering any moral or ethical limits.
In Germany, legal positivism gained a lot of influence in the late 1800s. This led to a change in the understanding of the "Rechtsstaat," or rule of law. Instead of focusing on laws that protect individual rights, it became about whether actions were legal as long as they were allowed by law. This shift meant that the protection of personal freedoms became less important, and eventually, there were fewer limits on government power.
By the early 1900s, Hans Kelsen’s "pure theory of law" strengthened these ideas further, suggesting the state is the same as the legal order. This approach led to a view where government actions could be considered legal, even if oppressive. It enabled totalitarian governments to rise, which believed they could act without being limited by law, as seen in places like Nazi Germany.
4 the Fate of Law Under Communism
In early communist Russia, legal theory showed a complete rejection of the rule of law. Russian theorists said that instead of general laws, decision-making shifted to individual administrative actions. They believed that there was no real difference between laws and administrative rules. The Soviet system aimed to establish a government that ignored the rule of law and freed rulers from any limits on their power. There was a belief that as socialism took over, law would vanish, and focus would shift to what was best for the community rather than individual rights. All legal matters became administrative decisions instead of fixed rules.
5 the Socialist Lawyers of England
Developments in England regarding the rule of law began to change early on but initially received little serious theoretical attention. By 1915, it was noted that respect for the rule of law had declined significantly, yet many continued to believe that individual liberties were well protected. Despite a notable 1929 book highlighting the incongruities with the rule of law, it mainly stirred controversy rather than leading to substantial change. The book resulted in the appointment of a committee to assess ministers' powers, but its conclusions tended to downplay the risks.
A group of socialist lawyers and political scientists led by Professor Harold J. Laski challenged traditional views on the rule of law. They argued, particularly through Sir Ivor Jennings, that the concept of equality before the law was unrealistic, and that the rule of law, as understood in previous times, was losing its relevance. Jennings believed that the rule of law and the discretionary powers of administrators were not inherently opposed, criticizing the idea that judges serve as the only authority to enforce the law.
Further advocating for these new views, Professor W. A. Robson suggested that the distinction between law and policy was outdated. He argued that administrative tribunals should be free from the constraints of established laws to effectively enact social policies. His ideas gained traction even among conservatives, reflecting a broader acceptance of socialist doctrines, which marked a significant shift in thinking about the rule of law.
Some less prominent socialist lawyers have gone as far as redefining the rule of law to mean whatever Parliament decides, suggesting that democratic decisions, even if unwise or unjust, would uphold the rule of law. This perspective has contributed to the increasing power of administrative agencies over citizens’ lives, leading to growing concerns about the erosion of individual rights. Recently, public awareness of excessive bureaucratic power has begun to spur discussions about a potential return to stronger protections under the rule of law.
6 Development in the United States
Developments in the United States regarding public administration and legal theory have advanced significantly, often more than in Great Britain. The “public administration movement” was inspired by European reform movements and aimed for government efficiency, trying to gather support from businesses for socialist goals. This movement challenged traditional values of individual rights, like the rule of law and the limits set by the Constitution. People in this movement tended to overlook the importance of law and economics while trying to create a “science” of administration. They believed that liberty was linked to people’s ability to enjoy consumer activities.
By the early 1920s, there was a shift in how administrative powers were viewed in the U.S. Legal oversight from the courts started to decrease, allowing public officials more freedom to make decisions. There emerged an idea that the courts should only check if public officials were acting within their legal limits. Resistance to strict court control began before World War I, especially highlighted by Senator La Follette’s campaign in 1924, which criticized judicial power.
In the following years, there was much critique of the idea that the government should be based on laws, with some scholars arguing for more trust in those in power. This attitude matched a broader trend toward granting more administrative authority, especially during the Roosevelt era. Concerns about these changes grew by the late 1930s, leading to investigations into the consequences of moving toward more administrative control over laws and individual rights.
7 Signs of a Revival of the Law
Many countries are showing signs of a revival of the law in response to past totalitarian regimes. This renewed interest emphasizes the importance of individual rights and the rule of law, which some socialists previously underestimated. A notable figure highlighted this change by stating that while democracy is valuable, it is crucial for preserving the rule of law, and without this, democracy may not last. This shift includes the increased acceptance of judicial review and natural law theories in places like Germany and France, where scholars have pointed out that previous ideas weakened individual rights, leaving them vulnerable to government control. In Great Britain, there are efforts to restore courts as the final authority in disputes, emphasizing that decisions should be based on known laws rather than arbitrary choices. However, gaps remain, and more independent courts may be needed to protect citizens. The international community also recognizes the importance of the rule of law, but there is still uncertainty about fully committing to and understanding these principles in today's context.