The Rule of Law

In my local library in Putney, 'law' is above 'war' and behind 'politics' on the shelves, which I would like to think meant something other than some mentally ill need to identify a pattern on which to hang a blog post on my part. In the week after the International Criminal Court achieved its first conviction, Germany was encouraged to ignore the basic law, the United States proceeded with robot assassinations without trial, and Her Majesty's Government attempted to unilaterally destroy the constitution, I thought it might be worthwhile to put down my own thoughts on what law ought to be.

I should declare my interest. I'm a barrister but, like the vast majority of English and Welsh barristers throughout the past thousand years, I do not have a law degree and I have little time for most, but not all, practitioners of 'jurisprudence'. It's good to have a hobby, I suppose, but dressing up law as a philosophy in itself isn't really for me; like many people of Irish extraction, I view it as a socialised network of duties and levels of process, rather than a coherent structure of rights.

I have diplomas and a very extensive teaching experience, but my main degrees are in History. History is the Queen of humanities in part because historians are more than capable of holding forth on everything--everything, after all, has a history--and in part because we are garrulous storytellers in the main. Because I am driven to contextualise, I cannot pretend that law has an existence in itself as a primary thing. It's at once both a product and a process, which exists in a strained relationship to principles. I think that anyone can think their way into those principles, but the way in which they are expressed is up to Judges and cultures.

I do think that there are certain precious things, however, which make some societies better than others. Accused people should be defended on the basis that they are innocent until proven guilty not because of any special worth on their part but because the state must be made to prove its case. People should be able to see and question the evidence against them. Verdicts must be achieved in relation to the severity of the outcome of trials on a sliding but high standard of proof. Governments should not act retroactively. Ideally, people should be judged by their peers, and the law, whilst complicated, should never be overly complex and should be available for explanation and guidance. Policemen should just be citizens in uniform, and strict rules of evidence should apply in courts, including rules of hearsay. Governments should not break laws, nor condone lawbreaking, nor create confusion in the law. Law should apply equally to all those whom it effects, and (while I am prepared to hear the case for pardons and an executive and judicial margin of interpretation and pardon), generally Judgments should be predictable and explained. The law should be open to all on an equal basis, and no great and special powers should be placed in the hands of the state, nor devolved to corporations, nor supercharged with the power to try people multiply on the same evidence. If that means that gangsters and bad people either go free or have to be kidnapped and thrown out of helicopters by government officers too scared to be seen to openly break the law, all well and good.

Yet, of that whole list which I have given--and believe me, as my long term one demented reader knows, I could have gone on--there is not one single rule which the West in general and the countries of the continental and common law traditions in particular have not in recent years broken. Not one. In fact, we now enshrine our breaking of those rules in treaties and constitutions, or in arrogant assertions of privilege and literally stupid conflation of things that politicians write down with real rules of law.

The consequence of this progressive deligitimisation will not be over-regulation, but anarchy, as our societies put to proof the observation of a millennium and a half ago that governments without justice are robber gangs. Of all the things which I rage regularly about, I find the determination to avoid simple, clear rules of law on the part of our leadership and media class the saddest and most confusing. Is it for the hope of corporate reward, or to solve short term problems that they act as they do? Is it that they have no sense of what happens when they melt the ice beneath their feet and let the emotions and passions that live in the deep out?

Perhaps, to take a very long view, Western society just needs periodic resets. We have centuries and moments when we go too far, and then an explosion nearly does for us, and then we are back, merrily forgetting what went before. Like a sclerotic brain, we forget until the crisis, then reform, then gradually slip back, over and over until we are lifted out of this hell of recurrence. I'd say the cross, others might have said Roma Aeterna, still others Reason, a few gentle people, Love; there are times when I wonder if it matters but then I think of how time was rewritten by a carpenter nailed to a tree and how the example might create consciences that could regulate for decency and then, then, I feel quite sad. Because, so keen are we to trumpet our escape from Christianity as a society, and our rule of laws rather than Law, that I have just one more intuition of the rocks which we are, sooner or later, about to hit.

And we don't have to hit those rocks. It is still not too late. Just keep telling yourself that, Meenagh, just keep on believing....


Anonymous said…
Since leaving college I have spent most my time watching the closing statement and Vojislav Seselj's trail at the ICTY and it is amazing how many of the thing you have put down have been broken by the ICC. Especial in the trails of many of their Yugoslav defendants. But also in watching the trail of Seselj, he spends most of his time lecturing the court on law and pointing out many of the points you have put down as been broken by the court. But in saying that it will never be shut down as a court and it is hardly unlikely to see any former presidents or western leader or general sit as a defendant in the ICC.

Hope you are doing well Martin

Petar Momcilovic
Martin Meenagh said…
I know what you mean. I think that the ICC is clearly flawed--most lawyers would accept that--in the conception of the office of the prosecutor, the notion of complementarity in the real world, and in it's process. With my friend Tim Welch, I wrote an article last year about witness anonymity in the ICC, which is a rule that I think emerges from it having no witness protection because it isn't properly funded and from its confusion with truth and reconciliation bodies. I was appalled but not surprised by how many rings Uganda ran around the ICC. In an ideal world, we'd have regional courts invested with the sanction and legitimacy of local states, I suppose, but crimes against humanity does imply at least the possibility of a global objective court. When the new crimes comes in in 2017 (the subject of another article of mine, after I finish one on the defence of superior orders) I think that there will be all sorts of trouble. Of course, I was schooled in a common law tradition which at least historically acknowledged that English courts could try anyone for crimes committed anywhere....

Hypocrisy in the west is endemic. I have my moments when I think of it as a civilised vice--almost a virtue--and times when I see it through the eyes of people more concerned with moral transparency than myself.

Sorry that it has taken so long to respond to you--I have been busy here in Oxford, but I am grateful for your comment. I'm also glad to see that you are doing well and thinking about things still--don't let life and orthodoxy grind you down!

Very best

Martin said…
Re classifications in libraries -

Martin, where I live you'd be lucky to get anything other than Westerns.
Martin Meenagh said…
Hello Martin, always a pleasure to hear from you. I can only respond that, apart from being very entertaining, a good Western is of great use in strategic studies. What's modern American foreign policy but Micawber and Fagin in stetsons, carrying Magnum .45s?