Hale's Resolutions - modified

Readers who have delved into Lord Thomas Bingham's excellent book, "The Rule of Law" would no doubt have been introduced to Sir Matthew Hale in Chapter 2. Hale was noted as a jurist and legal researcher, and his Analysis of the Common Law was influential on Blackstone's Commentaries.

 Bingham (Ch 2 (5)) quoted Hale's Resolutions, a list of 'Things Necessary to be Continually had in Remembrance'. 

Having given some thought to these resolutions, I had in mind that some were too antiquated to stand in a modern world, though they were likely to have been adequate in Hale's time. Resolutions 1 and 3, I reject in their entirety; God has no business in the administration of justice; neither King nor Queen. The Law should stand above all and no man should answer to more than the Rule of Law and his conscience. 

Having these thoughts, and similar, in my mind, I decided to rewrite Hale's list to fit my own thoughts and also to 'modernise' them to fit in with today's world/knowledge. 

1.    That in the pursuit of justice, I am bound by the Rule of Law and my conscience, and in seeking justice I will do so:

2.    With

a.    Forthrightness

b.    Purpose

c.    Tenacity

d.    Regard that the path to justice may not be easy or quick; but

3.    I will be prepared to do right, and my best endeavours will not be withheld for lack of trying; and

4.    I will be passionate about my cause but not a slave to my passions, or fall to them however provoked; and

5.    Focus my attention and energy to the business at hand; and

6.    Never prejudge before the entire matter is done and over with; and

7.   Recognise that bias and paucity of thought are my failures and no one else’s; and

8.    That discretion and compassion and mercy are equally part of justice and law as much as punishment and rehabilitation; and

9.    Law should not give way except and only to conscience and justice; and

10. That the law is supreme except as conscience and justice demands it to bend or fall.

Keeping in mind that I do not administer justice (Hale was a judge) but intend to practice law, resolution 1 is therefore clear in stating 'the pursuit of justice'. Note too, that 'justice' does not imply a "win at all costs" stance on behalf of a client. The aim should be to give your best, but if your client is guilty, then justice should still be administered by those so charged. The Rule of Law and your conscience should be your guide in doing what is right, and your best.

     Bias and paucity of thoughts refer to defects in thinking in yourself, and therefore has no one else to blame . This is where I am a strong believer in critical thinking. While studying law introduces elements of critical thinking, it does not go far enough on its own to really eliminate defective thoughts. Critical thinking is best practiced after studying it as a subject by itself.

     Resolutions 9 and 10 refer to conscience. Note that in this instance the conscience referred to is not my conscience as in Resolution 1, but is a reference to a 'collective' conscience (of society). So what was the law in instances such as permissible marital rape, outlawing homosexuality etc fell to the collective conscience of society through the judges administering what is right. The law as it stood then fell to the changes in society. This is what I mean by conscience.

     Thus, Resolution 1 is a reminder that if a law is unjustifiable (to a client or society), then I consider it a duty to argue for it to be changed or discarded. Resolution 10 then becomes clear in its intention.

      Any thoughts?

Return to the Rule of Law – Part 3

This series is intended to explain the rule of law at a basic level to give a clearer view for easier understanding by the public.

It is by no means a complete view which would be academic in nature.

What are the formal and substantive elements of the rule of law?

If I were to go back to using my previous example: Parliament decides, and correctly passes a law to the effect that 95% of your earnings will be taxed – taken by the State – what would be your reaction? I am certain that not many people will agree to bringing home 5% of their earnings.

The scenario above demonstrates both elements of the rule of law; the formal element is the passing of the law, using the correct procedures established. The substantive element of course, is the content of the law, what it says.

I will use another real example. A law is passed:

 

A subject of the state is a person who enjoys the protection of the German Reich and who in consequence has specific obligations toward it.

Do you see any problem with this? This was an actual law passed in Germany prior to World War II. It was ‘legally’ passed by the Reichstag (German authority led by a legally elected Adolf Hitler) at the time.

The content, of course, is questionable, and certainly does not meet some of the requirements of the rule of law as laid out by Prof Raz. Specifically, can anyone say that this particular law is clear? Would a person be able to predict accurately how the State will confirm his citizenship? Can it be challenged in the courts, with a predictable outcome? What if the Reich ‘withdraws its protection’ of a person, is that person still a subject of the State?

The formal element of the rule of law

What I am calling elements were described by Prof Paul Craig as ‘conceptions’. So, you may see references to conceptions on various websites.

A formal element/conception of the rule of law addresses the manner in which the law was promulgated. The formal element looks at whether the law was created in a properly authorised manner, by a properly authorised person/body, whether it is sufficiently clear to guide an individual’s conduct et cetera. Thus, if we go back to Prof Raz’s work, we can see the formal concept on display. The drawback is that the substantive conception/element is missing – once a law is passed properly in the prescribed manner, it is still law, regardless of the content.

We see this in the examples of laws passed by Nazi Germany prior to World War II, South Africa under the apartheid system (it was all legal), modern China, and North Korea et cetera. These are all valid legal/political systems within formal sense of the rule of law, but lack respect for or even acknowledgement of most human rights.

We hope and expect that the content of laws should be morally sound and that rights are protected therein. There is an obvious problem in this formal view, which is: the rule of law is not about the rule of “good” law. Hence the importance of the judiciary being independent in order to bring checks and balances – restraint – to arbitrary exercises of State power. If the judiciary follows the State, anarchy is not far behind – again, look at Nazi Germany, apartheid South Africa, et cetera. In addition to the independence of the judiciary, there must also be integrity of the judicial system itself as well as government accountability to help protect the rights of ordinary people, help settle their disputes and protect them from abuses of power – both private and public.

The 8 principles in the formal view of the rule of law (generality; publicity; prospectivity; intelligibility; consistency; practicability; stability; and congruence) was shared by Dicey, Prof Fuller, and Roberto Unger, among other academics theorising on the rule of law. Their work has contributed immensely to our understanding of the rule of law, pointing out inherent weaknesses in the formal conception. What seems to overcome these weaknesses is the introduction of a substantive element into the rule of law.

The substantive conception of the rule of law

We can look at law as having 2 opposing faces: first, it imposes conditions on the people which they must comply with, and second, it instructs officials of the State in what to do when the law is not complied with.

When stated like this, it is easy to see that law that does not meet the 8 principles with respect to people, may still be lawful with regard to the State. A person not knowing what he is charged with or found guilty of because of a secret trial or suppressed evidence in which the State holds all the cards, gives rise to – well, Guantanamo Bay, for example.

Or as Arthur Chaskalson, former Chief Justice of South Africa, said with respect to law that fails to recognise fundamental human rights:

[T]he apartheid government, its officers and agents were accountable in accordance with the laws; the laws were clear; publicized, and stable, and were upheld by law enforcement officials and judges. What was missing was the substantive component of the rule of law. The process by which the laws were made was not fair (only whites, a minority of the population, had the vote). And the laws themselves were not fair. They institutionalized discrimination, vested broad discretionary powers in the executive, and failed to protect fundamental rights. Without a substantive content there would be no answer to the criticism, sometimes voiced, that the rule of law is “an empty vessel into which any law could be poured”.

The emphasis is mine.

The late Lord Bingham (The Rule of Law, 2010) was acerbic in his observation that:

A state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed.

Lord Bingham, like Profs Raz and Fuller, also argued that there are eight conditions for the rule of law to work:

1.    the law should apply equally to all;

2.    it should not be accessible only to the rich, meaning that disputes should be solved relatively cheaply;

3.    it must be easy to understand;

4.    it must protect fundamental human rights;

5.    it must be speedily enforced;

6.    the right to a fair trial is a cardinal requirement;

7.    public officials should not abuse their powers; and, finally,

8.    States should respect international law.

The fourth condition requires due regard to human rights, especially fundamental rights, which must be observed by the State if it is to fall within the ambit of the rule of law. Of course, the argument against the recognition of rights within the rule of law is that perennial question – which rights ought to be given priority? This is not only a legal question, but also a political one. Political because it is politicians who decides our rights and the conditions which we may access or assert those rights.

There is no question that people feel very strongly about their human rights, the way the State exercises its power through its agents, and indirectly, the rule of law, even if they do not understand the concept completely.

Next: the rule of law in economics.

Return to the Rule of Law – Part 2

This series is intended to explain the rule of law at a basic level to give a clearer view for easier understanding by the public.

It is by no means a complete view which would be academic in nature.

In the first part, I looked at AV Dicey’s theory on the rule of law. Now I will look at some principles inherent to the rule of law.

 

Last night, my phone rings. Private number. When I answer, the caller is a friend who just asks, “What would you say are the foundations of democratic principles? There is no right and wrong answer in this.”

 

I didn’t respond immediately. Slow and measured thinking is required. This colleague is well-known for trick questions.

 

After a few moments, I answer, “The rule of law and protection of human rights.”

 

Am I right? Well, my colleague concurred. He explained that he was upset by recent goings on here in the UK where ‘freedom of speech’ is being locked down on very important issues. He went on in some distress about people being barred from entering the UK because they intended to deliver a speech at Speakers’ Corner in Hyde Park, in London. The authorities perceived the speech as likely to offend the ‘public good’. His perception is that now people are to be banned from speaking the truth, if it would upset the ‘public good’ [a concept in law]. I checked on these matters, which are real and in the public domain.

 

How those in power deal with restrictions on the freedom of speech, is important because it is both about the exercise of power and potentially impacts on a human right (namely freedom of expression). I thought more about the foundations of democracy and the related principles. My colleague went on to mention George Orwell’s book ‘1984’.

 

If searching online for an answer to my friend’s question, various websites give ideas such as free and fair elections, human rights and fundamental freedoms, open and accountable government, and a ‘civil’ society. These are all true, but any fair-minded analysis of what they are, how they are arrived at, shows that they are primarily derived from the rule of law and protection of human rights. These two pillars - the rule of law, and the protection of human rights, go back over 2000 years. They are twin pillars that are almost fused together.

 

If you would grant me that the rule of law is such a powerful ingredient of democracy, why is it so misunderstood? Dicey’s three principles on the rule of law broadly says: The State cannot exercise arbitrary power; there must be equality before the law; and human rights are recognised from restraints on arbitrary power. Obviously, they throw up more questions that need to be determined. What is arbitrary power? What does equality mean? For that matter, what is law? Or rights?

 

The rule of law is an abstract concept but that means it is difficult to understand. If we try to simplify: How would you like if the government passed a law to empower the police to come into your house and take all your money away and freeze all your bank accounts? A very similar scenario occurred in 1933 in America. President Franklin D Roosevelt used the ‘Trading with the Enemy Act of 1917’ to make gold ownership illegal! This was issued by executive order 6102. The effect of all this was that possession of any gold coin or gold item was punishable by 10 years imprisonment and a fine of double the value of the gold possessed. You should be thinking, ‘What protections would I have? What are my rights? Where are my rights? How can I enforce my rights against that sort of power?’

 

If that above didn’t wake you up, consider how you would feel if your Parliament passed a law that meant you would be taxed at 95% on any and all of your earnings. What would you do? How would you feel about something that was perfectly legal but which would be totally ‘unfair’?

 

It is necessary to dig a bit deeper into the foundations of democracy. There are several different theoretical variants of the rule of law, making it harder to understand what it is and how it works. Prof Joseph Raz pointed out that the rule of law required eight conditions/principles to guide people’s behaviour so that they may act lawfully. The rule of law is not simply ‘the rule of the law’.

 

First, “all laws should be prospective, open, and clear.” The idea of this is quite clear – one cannot obey a law that is not yet written, kept hidden, secret, or opaque. The law must also be accessible.

 

Second, “laws should be relatively stable.” Again, the idea behind this is simple. Stability in the law gives people opportunity to plan their lives, carry out business et cetera. At the same time, laws should not be fixed and unyielding.

 

Third, “the making of particular laws, (particularly legal orders), should be guided by open, stable, clear, and general rules.” The idea behind this is to control discretionary powers granted to State authorities. Citizens should be able to predict how discretionary powers will be applied to their situation. Therefore, the discretionary powers themselves ought to be guided by clear guidance.

 

Fourth, “the independence of the judiciary must be guaranteed.” This is an important point supporting stability of the law. If the judges could not decide cases according to law, but by pressure from some external source, there would be no predictability/certainty in the law and citizens would thus not be able to be guided by it. It is essential to insulate judges from such pressure.

 

Fifth, “the principles of natural justice must be observed.” Natural justice requires that hearings be free and fair from bias, that fair procedures be adopted, that equal opportunity to be heard be given to both parties. Again, this is important so that citizens may know what is required of them to live within the law, and for the law to be applied impartially.

 

Sixth, “the courts should have overview over implementation of these principles.” In other words, the courts should have the power to examine the legality of legislation, the actions, and decisions taken by government bodies.

 

Seventh, “the courts should be easily accessible.” Long delays or excessive costs deny citizens justice, prevent assertion of rights or defence of their actions, and prevent the law from being enforced.

 

Eight, “discretion of state agencies, such as crime prevention, should not be allowed to pervert the law.” The discretion to act or not act against the citizen is built-in into the criminal justice system. This discretion ought not to be systematically used/abused to exempt certain classes of people from obeying the law.

 

These seem to be quite clear at first glance. However, a closer examination of these principles will show that hardly any mention is made regarding the content of the law. These principles are mainly about procedure in making laws and applying them subsequently. This brings the rule of law to a different focus – the substantive element or content of the law, and the formal or procedural element which addresses the way the law was created. But most importantly the rule of law is about restraint in the use of power.

 

Next: looking at the substantive and formal elements of the rule of law.

A return to the Rule of Law – Part 1

The Rule of Law

What is it? A conflict of suppositions

Many politicians use this phrase, attempting to say, “No matter the judgment, we won.” Or as Professor Jeremy Waldron (commenting on Bush v Gore) said:

‘… the utterance of those magic words meant little more than “Hooray for our side”’. (Bingham, p5)

Judges use it to describe concepts of law, yet it is interpreted differently by everyone. No two persons have the same view of the Rule of Law and what it means, and neither will be wrong, nor necessarily right.

The Rule of Law is a paradox, a contradiction both in theory and practice. A close examination will reveal the truth of that statement.

• · It is not legally enforceable, but it is enforced in courts.
• · It suggests a limitation to State power from abuse yet has no force.
• · Everyone “understands” what it means, yet no one does.
• · Its power come from emotive appeal, but not law.
• · It suggests an absence of tyranny but offers no protection from tyranny.
• · It is a method of social control without legal rules.
• · It is ‘fixed’ yet constantly in flux.
• · It is political, yet apolitical.
• · It conflicts with the notion of Parliamentary Sovereignty (the idea that Parliament can make or unmake any law).
• · It appears in written instruments of law but always without a clear definition.

The above is a non-exhaustive list. I will attempt to give a short explanation of what it is, and at the same time attempt to show what it isn’t. In trying to explain misconceptions people have of the rule of law, and comparing of some of its strengths and weaknesses, hopefully, some of the paradoxes above will be explained also.

The idea of ‘rule of law’ is very old, and has been traced way back to the time of Aristotle (384 – 322 BC):

“It is better for the law to rule than one of the citizens … so that even the guardians of the law are obeying the law.”

Stripped bare: A first look

However, law students first encounter the phrase ‘rule of law’ in connection with Albert Venn (AV) Dicey (1835 – 1922), former professor of law at Oxford University who popularised the phrase in his book: “Introduction to the Study of the Law of the Constitution”. Dicey was, for many years, considered the foremost ‘authority’ (I use that word with due caution) on the rule of law. He suggested that there were three tenets, or principles, present in the rule of law:

1) The State cannot exercise arbitrary power.

This simple statement is more revealing than it appears. What Dicey envisioned was that the State’s power, and its use of that power, must be controlled by law and the State cannot be allowed random powers or arbitrary use of those powers. Dicey also thought that rulers of State do not have any wide discretionary powers to create law but must do so within an established framework for creating laws, or by prior established law. In other words, the State cannot arrogate onto itself powers that it does not have, or think it has.

There is another principle associated with the use of law to control the State’s power. This asserts that a person cannot be punished by the State for something which is not against the law, or which was not against the law at the time he did it. In plain words, if an act is not explicitly forbidden, it is permitted and cannot be made a crime retroactively. Also, a person may only be punished for a breach of law proved before an ordinary court.

2) There must be equality before the law.

This may perhaps be a self-evident principle but one which is clear: Everyone, including the State and its agents, are bound by the same laws.

“Be ye ever so high, still the Law is above Thee.” (Thomas Fuller)

3) Origin of rights

In Dicey’s view, rights of the Englishman were derived from judgments coming from the courts, whereas under ‘Continental’ constitutions, he saw rights as being derived from the principles laid out in those constitutions.

Under the British Constitution therefore, rights were gradually obtained through judgments in which distinct principles were identified as abuse of power against the common man. Limitation of those excessive powers resulted in identifiable rights.

Case example

Entick v Carrington [1765] EWHC J98 (KB) beautifully illustrates several of the principles explained in the preceding paragraphs.

On 11 November 1762, Lord Halifax, a newly appointed Secretary of State, sent his Chief Messenger with a warrant, one Nathan Carrington (the defendant), to the home of John Entick (back then called the plaintiff). There:

“with force and arms broke and entered the dwelling-house… and continued there four hours without his consent and against his will, and all that time disturbed him in the peaceable possession thereof, and broke open the doors to the rooms, the locks, iron bars, etc. thereto affixed, and broke open the boxes, chests, drawers, etc. of the plaintiff in his house, and broke the locks thereto affixed, and searched and examined all the rooms, etc., in his dwelling-house, and all the boxes, etc., so broke open, and read over, pried into and examined all the private papers, books, etc. of the plaintiff there found, whereby the secret affairs, etc., of the plaintiff became wrongfully discovered and made public and took and carried away 100 printed charts, 100 printed pamphlets, etc. etc. of the plaintiff there found, and other 100 charts etc etc took and carried away, to the damage of the plaintiff 2000l (£2000)”

Arising out of the judgment were the following principles:

• · A State official cannot appropriate for himself power he does not have.
• · A State official’s authority must be clearly established in law.
• · The State is permitted to do only what is expressly (explicitly stated) permitted in law, but the individual may do anything except that which is expressly forbidden in law.
• · “Every invasion of private property, be it ever so minute, is a trespass”. This is also reiteration of the concept, “A man’s home is his castle…”. No one can interfere unlawfully with a person or his property.
• · The burden is on the trespasser to show cause.

Perhaps the best overall interpretation would be saying that a person has the right to respect for his private life, home etc.

Dicey’s view of the rule of law was understandably narrower than today’s perception, which, thanks to several academics such as Raz, Unger, Dworkin, Fuller and Bingham is more comprehensive than Dicey’s.

Next, a look at alternative views on the rule of law, and how Dicey’s observations were expanded upon.