Furthermore, in order to ensure the fairness and the consistency of legal civil codes provided for all individuals, it requires some form of a central body. The antinomy of this existence is considered to be the customary law such as British and American Common law, the customary law of the United Nation (UN), and various tribal legal codes having existed in the pre-Roman period.
Many Liberalists, especially those supporting Classical-Liberalism and Libertarianism, tend to affirm that the customary/natural law is a more liberalist legal structure because of its decentralised form. However, the incompatible aspect of the customary/natural law is that it is very often influenced by the moral entrepreneurs such as religious and populist zealots. This might conversely induce illberal moral policies and oppressions toward the minorities.
Moreover, the judgement of the customary/natural is frequently influenced by the intelligence and the social power of the interpreters such as the lawyers. More powerful the lawyers are, more chances for defendants/plaintiffs to win the court case. Therefore, these individuals with more significant physical wealth and social status are more likely to take a significantly higher advantage regardless of their ethical and legal justifiability.
On the other hand, Legal Positivism propped up by the consistent civil codes prevents the moral monopoly by moral entrepreneurs. These legal codes are created under the consensus of individuals in a society to functionalise their fair social contracts. It is usually designed for providing all individuals with the fair judgements verified by a single public body existing as a public good deserving for all individuals regardless of their physical wealth and social status.
Another concern is that there is still a very high risk that an authoritarianism leads to an illiberal characteristics. The key point which distinguishes these two kinds of authoritarianism is whether it is the rule by law or the rule by persons. Socialists especially those supporting the orthodox Marxism tend to undermine the importance of the rule by law because they condemn the law as the bourgeoisie ideological production protecting their interests.
The orthodox Marxian perspective has originally started to elect the proletariat dictatorship deserving for a majority, the party of these proletariats are prone to the seduction to corruption unless there is any outside intervention correcting their actions. The wealthy and privileged elites may have an advantage to gain the power even under the rule by law ensuring fairness and moderation. But, this is not directly caused by how the law exists: It is simply the case that the wealthy and socially privileged individuals are more able to be advantageous regardless of any legal structure.
Montesquieu, in his book Spirit of the Laws, insisted that the republic providing individual citizens with equality and fairness requires the law as a social model for individuals to comply with. The more illiberal authoritarianism, the less significant of the law is because the rule exists for the only selected number of individuals enjoying their privileges.
The mistake of the old socialism such as the orthodox Marxism is defying the existence of law by replacing it with the rule by persons. Under this rule by persons, the proletariat party members in this case, the inequality furthermore expands in this rule dominated by the proletariat government than those liberal democratic nations with the rule by law.
In order to keep the fair third person's view, the rule by law implemented by a consistent form which is detached from any interest of a particular group of individuals. The civil code should exist as the pure intermediary structure which is created under the strong consensus among individuals cohabiting together.
