Cecily Zamora
Liberalism and the rule of law is a complex topic. Liberal writers have long been preoccupied with notions of rights and the law as an instrument for securing the individual a minimal security against illegitimate encroachments by others. Liberalism is a notoriously fluid concept, and liberal theories of the judiciary went out of fashion in the late 1980s. However, in an age of constitutional extremes, a return to Professor John Rawls's Political Liberalism seems mistimed. Instead, Rawls redirects attention towards questions about how a democratic society can gain the freely willing submission by dissenters to the coercions of ordinary law.
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What You'll Learn
Liberalism and the Rule of Law
However, it is important to note that the concept of liberalism is fluid and has evolved over time. For example, the resurgence of legal liberalism in recent years has prompted constitutional scholars to grapple with its implications.
In the context of political liberalism, Professor John Rawls redirects attention towards questions about how a democratic society can gain the "freely willing submission by dissenters to the coercions of [its] ordinary law". Rawls argues that agreement on any comprehensive view of justice cannot form the basis of our politics, especially in a democratic society characterised by reasonable pluralism.
It is worth noting that the perception of liberals breaking the law and it being overlooked may be influenced by a variety of factors, including individual interpretations of liberalism and the law, as well as the specific context and circumstances of the law-breaking incident. Additionally, it is important to consider that many people break the law without realising it, as they may be unaware of the existence of certain laws.
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The resurgence of legal liberalism
Liberalism has always been concerned with the law as an instrument for securing the individual a minimal level of security against illegitimate encroachments by others. Liberal writers have theorised law and are preoccupied with notions of rights. Liberalism is foundational in all approaches to the philosophy of law, and its concepts derive their significance through various interpretations of the nature and importance of individualism.
In the 1980s, liberal theories of the judiciary went out of fashion. However, there has been a resurgence of legal liberalism in recent years, with some calling for a return to Professor John Rawls's Political Liberalism. In a democratic society characterised by reasonable pluralism, Rawls claims that agreement on any comprehensive view of justice would mask "the fact of oppression".
One of the greatest strengths of the liberal tradition is that it offers a useful way of thinking about law. When we compare the liberal’s respect for the ideal of lawful government with the hostility and cynicism that is manifest within Marxism, we find that Marxism provides only a sociological perspective on law.
In conclusion, while there may be a resurgence of legal liberalism, it is important to recognise that liberalism has always played a foundational role in the philosophy of law.
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The significance of Driver's argument
Liberalism and the rule of law are deeply intertwined. Liberal writers have long been preoccupied with notions of rights and law as an instrument for securing the individual a minimal security against illegitimate encroachments by others. Liberalism is concerned with the nature and importance of individualism, and the philosophy of law embraces liberalism as it deals with concepts that derive their significance through various interpretations of individualism. Liberalism offers a useful way of thinking about law, and liberal theories of the judiciary were popular in the 1980s.
However, it is important to note that many people break the law without realising it, and this may be the case when liberals break the law and it is overlooked. It is also possible that the law is selectively enforced, with some groups being targeted more than others.
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The philosophy of law
Liberalism is a political and moral philosophy based on the rights of the individual, liberty, consent of the governed, political equality, the right to private property, and equality before the law. Liberalism became a distinct movement in the Age of Enlightenment, gaining popularity among Western philosophers and economists.
Various "conceptions of justice," such as utilitarianism, libertarianism and egalitarianism, compete and conflict in the field of justice. As the common principle constraining these conceptions, however, there exists "the concept of justice." This concept requires you to engage in only "discrimination that can be universalised" between yourself and others.
Liberalism tries to maximise individual freedoms, while law works to restrict them. Liberals espouse various and often mutually conflicting views depending on their understanding of these principles but generally support private property, market economies, individual rights (including civil rights and human rights), liberal democracy, secularism, rule of law, economic and political freedom, freedom of speech, freedom of the press, freedom of assembly, and freedom of religion.
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Liberal theories of the judiciary
Liberal constitutional theorists are heirs to a considerable liberal jurisprudence that protects civil rights and civil liberties and requires judicial review to defend it. However, liberal theories of the judiciary have been criticised by historians, political scientists, constitutional theorists, philosophers, feminists and critical race theorists for their failure to protect minority rights against the majority will, their role in reproducing inequality, and their inability to protect disfavoured groups.
In the face of a conservative judiciary, liberal theories of the judiciary are likely to advocate for judicial restraint. However, it is unlikely that liberal constitutional theorists will wholly abandon judicial review. Liberal theories of the judiciary will have to grapple with the inheritance of a considerable liberal jurisprudence that protects civil rights and civil liberties.
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Frequently asked questions
Liberals break the law for a variety of reasons, including personal gain, ideological beliefs, or a lack of understanding of the law.
It is difficult to say exactly how often liberals' crimes are overlooked, as it depends on a variety of factors, including the severity of the crime, the political climate, and the biases of those in power. However, it is safe to say that liberals' crimes are not always overlooked, and they can face legal consequences just like anyone else.
The enforcement of the law against liberals, or any other group, is the responsibility of the relevant law enforcement agencies, such as the police or the FBI. However, it is important to note that the enforcement of the law can be influenced by political and ideological factors, which may result in certain groups being treated differently by the justice system.
To hold liberals accountable for their crimes, it is important to ensure that the justice system is fair and impartial, and that all citizens are treated equally under the law. This may involve increasing transparency and accountability in law enforcement and the judicial system, as well as addressing any underlying biases or discrimination that may exist.
