The Rule of Law, Remorse, Shamima Begum
This week on Facebook: Last year I posted ‘A law to cure!‘. The question that we continually seem face and perhaps should address is the need for new laws and changes to old ones. The English resort to the magna-carta as a source of their rights in Common Law and in response I posted Magna Carta: No longer law.
The truth is rarely pure and never simple. Oscar Wilde
The pressure of public opinion in the UK is a great political driver and is heeded to by the State when it points to a political advantage. However, purely political responses to the pressure of public opinion rarely achieves the justice it intended. The judiciary should ensure that the political pressure of public opinion does not take precedence over the rule of law¹ and parliament should ensure that the rule of law is maintained in Acts that they may pass. An appeal to ochlocratic rule is the path chosen by all populists, but the support of a demos and the pressure of public opinion rarely — if ever — leads to a popular democracy.
Democracy, I believe, should always be invited to the table but rarely left to dine alone. I mistrust the quivering, awe-struck deference to Demos as though to some sacred text or divine and inviolable authority. The trouble with democracy is that you just can’t trust it
What has any of this to do with Shamima Begum? To my mind it has everything to do with Shamima Begum and the rule of law, which apparently public opinion wishes to override. Hysterical news articles, vituperation, comments on the social media, and trite calls to compassion to the populace.
Opinions expressed in public seem not to be concerned regarding the rule of law. Any remorse² (3) expressed by Shamima Begum is either dismissed out of hand — or perhaps deliberately misrepresented. Expressions of contrition by Shamima Begum are an expected condition of her return to the UK, taking precedence over any concepts for the rule of law³.
What the State could not suitably do in such cases might be done by the pressure of public opinion. Clearly, much useful social behaviour arises neither from spontaneous devotion to society nor from fear of government, but rather from fear of social disapproval. This did not really help much with the problem of liberty. The psychological pressures exerted by neighbours could be just as tyrannical and far less predictable than those exerted by Governments acting through known laws, interpreted by impartial courts. Liberty And Law
1. How The Drama Of The British Schoolgirls Fleeing To Syria Unfolded: Nine months pregnant, two infant children who died and a husband in captivity — life in the “oppressive and corrupt” Islamic State caliphate quickly turned from utopia to nightmare for Shamima Begum.
2. Should Shamima Begum be allowed to return home? Her ongoing plight and gender do not reduce the danger she poses to security. The UK is understandably not keen to roll out the red carpet for her. After she was deprived of her British citizenship, Bangladesh disowned her as well. Despite her harsh predicament, her continuing reverence for ISIS makes Shamima Begum highly dislikeable.
3. How remorse alone can sometimes change the past for those who have been wronged: But why does remorse weigh with us so heavily? Remorse cannot change the past. Nor does remorse, however sincere, guarantee better behaviour in the future. Plenty of people profess remorse (and not only in court), but go on to do the same thing, or worse. So if remorse doesn’t matter, it’s not clear why its absence should make a difference.
4. Returning Isis brides expose a woefully inadequate legal armoury: As a good liberal, I would argue that a British citizen like Ms Begum should return, be prosecuted for any crime she has committed, or be helped if she deserves help. But here I run up against an uncomfortable reality: some acts that should be illegal are not.
5. Why no one is sure what should happen to Shamima Begum: Were they to present themselves at a British diplomatic mission somewhere, or to make their way back to the UK independently, then our legal obligations would kick in. This sleight is buying Whitehall officials some much needed wriggle-room. Otherwise, there are anxieties about the prospect of gaining convictions against returnees from IS due to concerns around evidence it is gathering, preservation and admissibility in our courts.
Referenced Articles Books & Definitions:
- A bold text subscript above and preceding a title below (¹·²·³), link to (usually free) content.
- Links (without superscript) and in italics reference the intended context of words used.
- Links without superscript and not in italics reference a source.
- A superscript asterisk following a url* indicates a long read.
- Brackets containing a number reference a particular included article (1-5).
- Occasionally Open University (OU) free courses are cited.
- JSTOR lets you set up a free account allowing you to have 6 (interchangeable) books stored that you can read online.
¹What is the Rule of Law? (url/video) The rule of law is a principle of the UK constitution that means politicians govern within their powers, the law applies equally to all and that the law is certain.
²Remorse, Penal Theory and Sentencing (url/book): Remorse is recognised as a legitimate mitigating factor in many sentencing regimes around the world, with powerful effects on sentence severity.
³The Rule of Law Concept (url/book): Conceptually, the rule of law and democracy can be distinguished. In practice, both concepts are inseparable because they are both aimed at protecting the equality and autonomy of individuals.
2017 2018 @ A.P. Herbert AI Albert Haddock Banks blog book books budget budget deficit C.S. Lewis censorship China Civil Service constitution Crime CRT cryptocurrency CWG debt deficit democracy economics ethics EU euro fiat money Film France freedom of expression gdp government history human-rights internet J M Keynes language Law Ludwig Von Mises Margaret Thatcher Matt morality music Musical national debt New Labour NHS opinion parody PFI poetry police Police & Crime Commissioners politics Quantitative Easing research school Screwtape Sir Ethelred Rutt K.C. social-media Social Welfare statistics T.E. Utley taxation terrorism Thatcher The Telegraph UK Unemployment USA Victor Hugo war war on terror
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