Introduce
To begin with, the rule of the law which is the main field of that study, despite the fact that this phase was advocated by some ancient philosophers such as Aristotle and Cicero; it was not fairly enough, popularized after early modern era. We should not forget that, even today, somewhere on the world, there is no justice behind laws, and citizens are not equal before the laws. What are the counter arguments against it, and why was implementing of the supremacy of law delayed so long? And first of all, why should law be both superior and applied to all?
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Historical View
Aristotle referred to the rule of law in his book, Politics: “It is more proper that law should govern than any one of the citizens.” but most of the countries were far away from this, ruling before, approximately, Age of Enlightenment. Totalitarian states dominated over the world and people were too busy with dairy hard works to discuss such concepts as freedom and reason; which are not more primary than livelihood, so there was little public opinion that people must be equal before the laws and be protected by the laws. At first glance, with today’s eyes, development of these ideas may be found difficult to understand. So, main points of them will be explained in following titles to save you from anachronistic sight.
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Ancient Era and Plato’s Theory
On taking a short look at this period of time, we will encounter with a totally different situation as of today: peoples of ancient world concerned with, literally, the matter of survival. There were so many governors, dominating the lands, many of whom were supported by the power of army. Under these conditions, one could hardly claim freedom because we must be servants of the law to a certain extent in order to be free, as Cicero mentioned. It is useful to remind that significant proportion of people was not considered as even a human, therefore it is normal that such notions did not appear.
Political legitimacy, which is the longest living legitimacy throughout human history and the theocratical one, ruled nearly all part of the world; especially Ancient Rome, Mesopotamia, and Egypt. It means that the God (King of Kings, Lord of Lords), with his divinity or representer on the earth, should reign over the state, above all earthly powers over which he has a superior imperium as well. In other respects, Plato imagined hegemony of a state whose advisers should be determined by technocratic judgement. That is to say, simply, the best economists must control the economy or any other expert in his specialty, must control his profession field. In the light of this principle, he separated the society into three main factions. To him, enlightened administrates, soldier fights, and worker (villager, craftsman) works. We cannot pass without reminding that Plato did not believe people’s equality in skill and nature. Yet, this idea, I think, firstly has a problem with “Who is the best?” or “What is our standards?”.
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Hobbes and His Leviathan
Of course, as the time went on, rate of illiterate people in the society decreased and prosperity increased, as it should be. Nevertheless, in comparison with today’s; the times of which I speak here, have huge difference in innovation ratio and these days’ conditions were still far from producing ideas on liberty.
So, Hobbes postulates what life would be like without government, a condition which he calls the state of nature. In that state, each person would have a right, or license, to everything in the world. This, Hobbes argues, would lead to a “war of all against all” (bellum omnium contra omnes). Indeed, political order is possible only when human beings abandon their natural condition of judging and pursuing what seems best to each and delegate this judgment to someone else. This delegation is affected when the many contract together to submit to a sovereign in return for physical safety and a modicum of well-being. Each of the many in effect says to the other: “I transfer my right of governing myself to the sovereign if you do too.” And the transfer is collectively entered into only on the understanding that it makes one less of a target of attack or dispossession than one would be in one’s natural state. Although Hobbes did not assume that there was ever a real historical event in which a mutual promise was made to delegate self-government to a sovereign, he claimed that the best way to understand the state was to conceive of it as having resulted from such an agreement. And about law he said “Authority, not truth, makes law. (auctoritas non veritas facit legem)” and marked that we must obey the laws just because they are law. For sure such “uncontrolled and unsupervised power” and “dictatorship of abused law”, only being faced in blood-freezing dystopic novels today like Orwell’s 1984, are nightmare of modern-day human. Even so, appearing of this idea could be understood with the pre-modern eyes as authority may be necessary in case there are few humans with enough consciousness to be capable of successfully governing people, or the situation is extraordinary. As a matter of fact, if we take a look at past, we can probably see so many historical characters who declared himself a dictator for instance Caesar, in recent history, either Atatürk did so for a certain term or forever in certain conditions. But actually, these are reasonable restrictions on liberty and the field of another study totally.
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Locke and Liberal Philosophy
Against all of these ideas, how has it become necessary, in time, to limit the state in order to approach freedom? As Hayek said “Thus it came about that governmental assemblies, whose chief activities were of the kind which ought to be limited by law, became able to command whatever they pleased simply by calling their commands laws”. Conditions have changed, especially with coming into sight of money and property, it was not possible that previous conditions were brought back to life. Thus, they wanted to get their rights, equalities and welfares in political way in order to reach their prior “happiness”. As a consequence of this, they demanded to participate in state administration with democracy. Most of the civil society started to criticize governor and even some of them think that they would govern themselves better than current advisers. Locke defended that, on the contrary to Hobbes, in the state of nature, people naturally had rights to protect his “life, health, liberty or possession” moreover, independent from others will, they could control themselves and their property. Locke denied that absolute monarchy was the best way to govern a society and, advocated parliamentary government, limited liberal state and separation of powers in “Second Treatises of Government” while Hobbes defended absolute sovereignty in “Leviathan”. Afterwards, as a liberal philosopher, Hayek argued that men, obeying rules of law, obeyed not someone else’s will but a formation or a contract in which he participated directly or indirectly by saying “The conception of freedom under the law that is the chief concern of this book rest on the contention that when we obey law, in sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man’s will and are therefore free”. To the questions of “Whether the state can be purpose by itself?” and “Whether the state is for citizens or citizens is for the state” a Liberal philosopher’s answer is probably “The state is a means for society and it does not mean anything by itself”. But liberal thought is depended on individualistic theory and yet, people need to have enough consciousness to be able to survive in capitalist competition and, to take care of himself. Because of the number of people who meet the conditions, liberal thought regarded as for upper classes, and such elitist idea. The rule of law is a prominent gem in the crown of liberalism, being mostly popularized and improved thanks to liberal philosophy. Accordingly, we cannot imagine liberalism without this crucial keystone.
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Conclusion
Despite Marxist criticism that rules of law necessarily represent interests, values and norms of dominant class and rhetorical emphasise on the law can conceal the fact that it was created by human beings, other Marxists believed that it relatively could provide assurance against authoritarian regimes, providing that this principle recreated as a socialist state of law. However, we probably know and have faced with that the state achieved unconditional sovereign via holiness or a social contract, could easily act like whatever it wants. And history definitely has experienced in many examples that any uncontrolled power unquestionably amounts to irrepressible danger which makes supremacy of law a must. As Lord Acton told “Power tends to corrupt and absolute power corrupt, absolutely.” On the other hand, relation between rule of law and reason of state (raison d’étre), which means a concept that sees the governing authority as somehow being above the law, and has the power to create and execute law where they find it to be convenient, still presents political sides: “Power of the hostility or especially perception of this power is determinant in there: whenever the hostility relatively gets weaker and the regime is strongly confident about itself, state of law comes to the fore, reason of state is pushed into the background but reason of state is made determinant in conjunctures where the hostility arises on a scale that terrifies regime or any event occurs, named crisis.”1 But by defending the ideal of ruling of the law insistently on the earth, which is not an ideological thing that you can have as a chance of choice but a necessity, promoted with international law and human rights, human values can be protected which now makes it unavailable that some person, regime, or a group of person rules permanently (rule of man) though all of the corruptions, tyrannically acts caused by the “will to power” and tries to save his stability in the state’s domestic affairs for a long time with isolated subject from foreign influence, and its closed economy which is not let by the invisible hand of the market.
“In brief, reason of state still has the feature of being effective and fatal weapon in the governors’ hands. When it is adorned with some rhetoric like patriotism, holiness, and the eternal state; it can easily turn into a ghost that sometimes rises to strangle freedoms in legal/political field where it developed the difference of ally-enemy, patriot-betrayer, we and others.
Pendulum of freedom lurching between state of law and reason of state, and maybe it is called history.”
References
- britannica.com
- plato.stanford.edu
- www.lawteacher.net/free-law-essays/contract-law/the-social-contract-theories-of-thomas-hobbes-and-john-locke.php?vref=1
- F. A. Hayek, Constitution of Liberty
- T. Hobbes, Leviathan
- Ahmet Arslan, Felsefeye Giriş
- Ahmet Arslan, Felsefe Tarihi
- Mithat Sancar, Devlet Aklı Kıskacında Hukuk Devleti
- Zühtü Arslan, Devletin Hukuku, Hukuk Devleti ve Özgürlük Sarkacı, Doğu-Batı Düşünce Dergisi, Sayı 13
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