The importance of the rule of law is frequently emphasised – and there are surely good reasons for such emphasis; this remains valid even if it is widely accepted that the application and even the process of law making are biased, oriented towards securing the status quo not least of inequality; importantly, the role of law is not least concerned with the quest that the state must follow the rules defined as legal with the underlying notion of justice. – All this must nevertheless be disputed and analysed in the light of the fact that law and justice are not the same and the law is usually a reflection of the ruling class, a compromise of tranquilising and legitimising the subordination of the oppressed.
However, there are questions that are going beyond the question of the general value, namely: is law sufficiently coherent to bear such responsibility? The idea of the state of law is surely emerging from the assumption that law is a formalisation of justice. The reality suggests that this is far from being true. The following looks at some basic contradictions within jurisprudence.
First,
Communi observantia non est recendum – A common practice must not be abandoned.
While this is one of the commonly suggested principles, we must ask if this fundamental point of reference allows acknowledging the fact that society is developing. Doesn’t the principle Communi observantia non est recendum suggest that a state or any other kind of societal order is static and the status has to be maintained without allowing any change? It does not even allow to follow the proposal Se vogliamo che tutto rimanga come è, bisogna che tutto cambi.—Everything must change for everything to remain the same’ (Giuseppe Tomasi di Lampedusa: Il Gattopardo). In any case, if strived for or not, if accepted and supported or resisted, change takes place.
Second
Lex posterior derogat legi priori – Priority of the latter over the earlier law
Looking at another principle of jurisprudence, we should acknowledge the fact the law must emerge from people’s and peoples’ living together, not the assumption made by Hobbes, suggesting bellum omnium contra omnes, i.e. that the natural state of being is war of all against all. While we must acknowledge the fundamental claim of Lex posterior derogat legi priori, we must also question it: as much as society is developing in a way that is characterised (i) by a kind of ‘denaturalisation’, replacing status by contract (Maine) and (ii) by inequality of power and the consolidation of power structures that are based on property as legal relationship, independent from ownership derived and given by experience and knowledge.
Lex superior derogate legi inferiori – Priority of the higher ranking law over the lower ranking
Competition surely exists, but it is not the natural state of existence, it is the consequence not even of limited resources as mainstream economics suggests. Instead, the main problem is the inequality when it comes to control of the means of production and thus resources of production and reproduction. Translating this into an order of law, we must strive for a lawful order and that means to start making law according to the principle of subsidiarity, namely making it where people are ‘living’ – this may be a matter of space, or it may be a matter of a relevant subject area.
Fourth
Lex specialis derogat lex generalis – Priority of the specific over the general law
While it is surely true that people are special as individual, they are not specialised. Instead, in reality, every human being is a complex unit, striving to cover all areas of life. This means in concrete terms that the general – as production and reproduction of daily life – must be taken as point of departure, specifying and specialising in different ways. Such processes are not least reflecting the principle corpora non agunt nisi fixate (Paul Ehrlich), i.e. that bodies do not act unless they are fixed, i.e. connected with other bodies. Such ‘links’ or ‘brackets’ between different individuals and between individuals/groups and the non-human objects and agencies,[1] ‘concretise’ the general by way of specification and specialisation.
It is only seemingly a contradiction to what had been said before, namely the suggested making law according to the principle of subsidiarity. In fact, we are dealing with the relationality of (re)producing life: this process of (re)production of life is in fact itself living and thus a merger of the general and the specific in form of permanently (re)producing the conditions of its own existence, which includes the possible change of all agencies.[2]
Subsequently, in respect of 3 and 4, the relevant ‘level’ can be geared to individuals, groups, classes and/or the society and its institutions.
Of course, this has immediate consequences also for law where we should look for ways of assessing the specific case by looking at the general conditions, ascending from the general to the specific.
*****
It deserves attention that’s the fundamental references of jurisprudence are (commonly) still expressed in Latin language. There may be a simple reason for this, it brings us back to the first point that nothing should change within the community. Communities are in one way or another closed systems. And the community of lawyers emerged not least from religious backgrounds, which can be seen as one of the closest systems that existed. In addition to the closure it is a hierarchical system – both resulting in resisting change. Indeed, we have, taking this as background, to ask in which way law can be developed as dynamic system, concerned with justice instead of being obsessed by the principle of legality.
[1] In fact, all objects are in the light of this relationality agencies
[2] Btw, this is also relevant when it comes to discussing artificial intelligence