Liberalism and the Rule of Law

Abstract

Liberals have always been concerned with law conceived as an instrument for securing the individual a minimal security against illegitimate encroachments by others. People must know their rights both regarding the state and in relation to other people with whom they necessarily interact. Thus, liberal writers have theorised law and are preoccupied with notions of rights. Indeed, one of the greatest strengths of the liberal tradition is that it offers us 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 Marxism provides only a sociological perspective on law. As soon as we engage in the philosophy of law, we necessarily embrace liberalism for we have to deal with concepts that derive their significance through various interpretations of the nature and importance of the individualism that is foundational in all liberal approaches (mental concepts: ‘fault’, ‘malice’, ‘negligence’ relational terms: ‘authority’, ‘discretion’, ‘rights’ and procedural ideals: ‘the equal protection of the laws’).