The Rule of Law
Mar 9, 2019Posted by on
This week on Facebook: Last week the case of Shamima Begum caused me to consider the Rule of Law, this led me to the rule of law as being a modern concept, despite the connection with Aristotle (1). The rule of law is regarded as being fundamental to the governance of the UK and is taken by some to be included in the Magna Carta, or implied by it (2). What Magna Carta (the document) actually proscribes is entirely different from that which it is generally proscribed to it (3).
The significance of Magna Carta lay not only in what it actually said but, perhaps to an even greater extent, in what later generations claimed and believed it had said. Sometimes the myth is more important than the actuality. (Lord) Tom Bingham — The Rule of Law (p19)
In 1926 A. P. Herbert humorously (as fact and fiction) wrote about Magna Carta.
The appellant has done his country an ill service in raising this point, for but for his rash actions generations of English orators might have continued in the fond belief that Magna Carta was still the abiding bulwark of our liberties, and for that act I shall order him to pay a further fine of five pounds. But it is no part of my duty to conceal the truth, and I am reluctantly compelled to declare that Magna Carta is no longer the law. Magna Carta — No longer law
The rule of law (4) is a useful tool in the armoury of the elite and it is to their benefit that it is so complex¹ (5). It is misinterpreted and misunderstood by most individuals who live in the civil society of a modern State and give their consent to this rule of law.
Fine, but what is the ‘Rule of Law’! In my last post I inserted a video of Professor Sir Jeffrey Jowell QC, Director of the Bingham Centre, introducing the rule of law for the Centre’s citizenship project for schools and repeated here. Professor Jowell presents the ‘Rule of Law’ as it is theoretically administered rather than as it actually is, but then like so many things in this modern world perhaps the ‘Rule of Law’ has always been made unaffordable to the common good by administrative law.
I have frequently posted the Misleading Cases of A. P. Herbert, being parodies of the law, and while I may regard A. P. Herbert’s protagonist as a hero in his constant battles with the law, the judgements made against his appeals may be more significant than those made for him.
But in addition to these particular answers, all of which in my judgment have substance, the appellant made the general answer that this was a free country and a man can do what he likes if he does nobody any harm. And with that observation the appellant’s case takes on at once an entirely new aspect. … For it would be idle to deny that a man capable of that remark would be capable of the grossest forms of licence and disorder. It cannot be too clearly understood that this is not a free country, and it will be an evil day for the legal profession when it is. Rex v Haddock — Is it a Free Country?
1. Why The Rule Of Law Matters More Than Ever: First things first, there is no ‘official’ definition of the rule of law. The idea dates at least as far back as the Greek philosopher Aristotle, who wrote, “It is more proper that law should govern than any one of the citizens“. The idea of the rule of law is still strong today, with the phrase appearing in a number of global news stories daily.
2. Does Britain still uphold the rule of law? It is a sacrosanct and founding principle of our constitution. It dates back to the Magna Carta. It is a hallmark of a free and fair society. It represents our final defence against the tyranny of the powerful. And yet, in this age of austerity and the ‘war on terror’, we must ask — does the UK still uphold the rule of law?
3. Magna Carta in the modern age: Magna Carta is a world-class brand. It stands for human rights and democracy. It stands for trial by jury. It stands for free speech, the rule of law and personal liberty. Except it doesn’t mention any of these things — even in translation. Instead, Magna Carta has quite a bit to say about fish weirs and river banks, about taxes and debts.
4. Britain’s new counter-terrorism legislation will undermine the rule of law even further: If approved by parliament, the Counter-Terrorism and Border Security Bill would make it a crime to express views favourable to terrorist groups, or to view terrorist material online.
5. Is the rule of law under threat? The rule of law is one of the first concepts encountered by undergraduates and is fundamental to the values and functioning of any liberal democratic state. Yet we only tend to notice it in our daily lives when it becomes dysfunctional in some way and take for granted the existence of an impartial judiciary, who are permitted to exercise their functions without interference.
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.
¹UK — The Rule Of Law: A ‘health warning’ is in order for anyone venturing into this area: a cursory glance at the index of legal periodicals revealed 16,810 citations to books and articles concerned with the rule of law, and that is certainly an underestimation, since many articles discuss the concept in ways that might not necessarily be picked up by the search engine and the number only covers legal material.