The Rule of Law Book

The first thing we do, let's kill all the lawyers

- Dick, a rebel, in Henry the 6th Part Two by William Shakespeare

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When I read this sentence:

If you maltreat a penguin in the London Zoo, you do not escape prosecution because you are the Archbishop of Canterbury.

I conceived that Baron (call me Tom) Bingham of Cornhill, former Master of the Rolls, Lord Chief Justice and a Senior Law Lord might be the ideal guide through the unclear conglomerations of legal definition and public conduct which lay ahead. This was emphasised when he quoted his favourite attempt by a legislator to define exactly what he meant - this is from the 1979 Banking Act Appeals Procedure (England and Wales) :

Any reference in these regulations to a regulation is a reference to a regulation contained in these regulations.

However what follows in the next 174 pages has very few laughs. It's essential, but so, so dry I cannot in conscience recommend this book unless you are submerged up to your chin in very wet water.

He takes us through the major milestones :

Magna Carta 1215
Habeas Corpus 1305 amended 1679
Bill of Rights and Act of Settlement 1689 and 1701
Constitution of the USA 1787
Declaration of the Rights of Man and the Citizen, Paris, 1789
Bill of Rights, USA, 1791
Universal Declaration of Human Rights 1948

It fair makes your head swim, all these goodlyhearted people trying to abolish torture and arbitrary imprisonment and rats and scurvy and no maltreatment of any penguin anywhere ever under pain of no pain.

But what do we mean by the rule of law?

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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.

We recall how the Nazis had genealogical experts to go through people's family history to determine if they should be killed - heaven forbid that they should accidentally gas an Aryan! Similar exactness was observed in apartheid South Africa when assigning people to the correct ethnic group. So just because you have a set of laws which you then follow exactly, that does not create the rule of law. This law of which we desire the rule of is a specific type : Western liberal.

Zut alors, the rest of the book explains how Western governments spout all this goodlyhearted stuff through their mouths whilst trying to bend their own self-imposed rules whenever the shoe pinches, and thanks to a sorry parade of ne'er-do-wells from commie pinkos, wild IRA nutjobs and on right up to the currently foaming tide of jihadi Johns, the shoe pinches almost continually. And so the dark arts of redefining torture, extraordinary rendition, mass surveillance, control orders, Guantanamo Bays and all the way up to illegal invasions of sovereign countries gets the go ahead with just a little soft-shoe-shuffling at the United Nations and the Supreme Court.



(The British Sun newspaper celebrates the sinking of the Argentinian ship the Belgrano in 1982 with the loss of 382 lives. It was sailing away from the war zone at the time.)

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A good part of this book grapples with the notion of human rights, which is indeed thorny. He says

This [human rights] is a difficult area since there is no universal consensus on the rights and freedoms which are fundamental, even among civilised nations.

And as an immediate example :

The right to life has been described as the most fundamental of all rights, and it is indeed obvious that unless a person is alive he or she can enjoy no other rights.

You can immediately hear the Right-to-Lifers applauding and the Women's Right to Choosers groaning. But that's what it's like, all the way down the line.

There's an excellent ten pages on the exact reasoning the Bush administration used to justify the 2003 invasion of Iraq - I had forgotten the nuances of the arguments, as one does, but very interesting it was. Mr Bumble was wrong, the law is not so much an ass, more a sleek horse which will obey any skilled rider.



(is this cruel or just unusual?)