The rule of law

May 20, 1998
Issue 

Picture

The rule of law

By Allen Myers

"We will obey the law. Will the MUA obey the law by withdrawing its pickets from the docks in Sydney and Melbourne?" Words to this effect were part of the standard response of Patrick Stevedores and its partners in the Howard government after the almost unprecedented Federal Court decisions in favour of the MUA members sacked just before Easter.

When people — especially governments — use "the law" in that way, they don't intend listeners to think about just one particular law. They obviously are indicating that a respect, even reverence, is required for what is sometimes called "the rule of law".

The idea is that there is some body of rules — "the law" — which stand above, or detached from, human affairs, and which should guide the way society functions. This is sometimes expressed in the phrase "a government of law, not of men [less sexistly, of people]".

The problem for such an idea is the question: where does "the law" come from? In medieval times, "the law" was presumed to be a set of prescriptions decreed by God. The rising capitalist class in western Europe put forward against feudal rule the concept of "natural law": the very structure of nature was supposed to justify bourgeois rights against feudal rights.

But nature doesn't decree any laws for human society. In the modern world, most people recognise that laws are of purely human origin. Of course, government ministers encourage obedience to law (even when bending or violating particular laws on the quiet): they make the laws.

"The rule of law" tends to be respected to the extent that laws are believed to be created through a democratic process; indeed, "democracy" and "rule of law" are sometimes treated as equivalent terms. But the reality is that there is very little democracy involved in the creation of laws; this is more true the more directly the law concerns the conflict between capitalists and workers.

For a start, much of the law enforced by police and courts during industrial disputes has never been passed by parliament. This is common law, which is simply judges' interpretation of longstanding custom. While such interpretations can occasionally be progressive, as in the High Court's Mabo and Wik rulings, common law is mostly a collection of medieval rules expressing the rich gentry's contempt for and fear of its "inferiors".

In the case of those laws which do come from a parliament, the situation is only slightly better. Although working people are the big majority of the population in capitalist countries, they are never the majority in parliaments. At best, they can elect a party that claims to represent them — but it is the party that decides what the "representation" consists of.

In practice, working people are allowed to choose only which party will rule in their name, but not in their interest. The whole structure of parliamentary politics — from the creation of MPs as a separate profession to the dependence of electoral campaigns on money — ensures that parliament will change nothing fundamental.

This system of defending the interests of the rich can succeed only to the extent that it fools us into believing that "the rule of law" is democratic and impartial.

This is why laws have to appear to apply to capitalists as well as workers, and why capitalists do not normally openly flout those laws; they get around inconvenient laws through concealment or by paying high-priced legal talent. In the case of the waterfront dispute, Patrick and the government have never stopped trying to find a way around the High Court judgment against them — and they may well succeed.

Socialists argue that it is impossible to represent "everyone" in a society divided into classes that have opposing interests. Parliaments inevitably pass class laws, not "impartial" ones. In a capitalist country, the rule of law is the rule of the capitalists.

You need Green Left, and we need you!

Green Left is funded by contributions from readers and supporters. Help us reach our funding target.

Make a One-off Donation or choose from one of our Monthly Donation options.

Become a supporter to get the digital edition for $5 per month or the print edition for $10 per month. One-time payment options are available.

You can also call 1800 634 206 to make a donation or to become a supporter. Thank you.