Law and the rule of law

Law and the rule of law, two different but related concepts, figure in both Marx’s and Hayek’s theories, though more prominently in those of the latter. Put simply, the main questions raised by these notions are these: is law merely an ideologically driven institution embodying injunctions backed by force to protect a particular regime based on private property in a polity featuring antagonistic classes? Or is it a body of impartial rules designed to ensure all citizens’ sense of security and provide for the peaceful resolution of disputes among them? The equally simple answer is that law is, or can be, both. In addressing

just one aspect of the matter, Adam Smith explained:

Civil government, so far as it is instituted for the security of property, is in reality instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all … 1

Such simplification, however, does little to clarify how the law actually operates at any given time, or how it might operate in the future in a radically different society from any that currently exist. A fuller answer needs to incorporate ideas about what it means to be a member of the species Homo sapiens who are by nature social creatures. While we are, of course, also competitive and capable of war and destruction of many kinds, we have evolved with characteristics enabling us to live together and to cooperate – not least in order to take from nature the basic means for our physical survival and reproduction. Humans have needed to live socially for a variety of purposes: to

provide protection from predators and different groups of their own kind; to find, build or make clothing and other protection from the elements; to share and use fire for warmth, cooking and nutrition; and for ‘fire-stick farming’.2 Another social activity or skill, that of language,

would also have had considerable survival value by conferring the capacity to communicate extensively and deeply and thus achieve the level of cooperation needed for all other activities. Once established, the capacity to use and create languages then became available for other, artistic, cultural, philosophical, and ‘rule-making’ purposes. That is, humans could make laws of a general or abstract kind, speculate about the cosmos they inhabited, and communicate to each other the meaning of the thoughts and images their brains produced.3