Royal Weddings and the Rule of Law
We talk about it here a lot, about how it no longer seems to apply to government and corporate elites. Like a hole in the sidewalk on a snowy day, that creates a slush-filled pool. We can step in it day after Groundhog Day. Or we can learn more about what “the rule of law” means and repair the crack.
A good place to start is Tom Bingham’s short book, called simply, The Rule of Law (reviewed here and here). He doesn’t answer the question which laws apply when the police interrogate you, when you can’t read your phone bill, when you open that envelope marked, “Penalty for Private Use $300”. He answers the question what is necessary for those laws to mean what you and I think they should mean.
Tom Bingham was a trial lawyer. He rose to become the senior judge, first, of Britain’s civil courts, then its criminal courts, and lastly, what is now its Supreme Court. Widely regarded as the best legal mind in a hundred years, he was down to earth. He didn’t sit on the veranda with a gin & tonic and admire the view. He knew the shoveling and troweling, the hoisting and measuring it took to make the bricks of civil liberties and the mortar of policing hold together.
Bingham summarized his lifetime in the courts in a handful of rules for a civil society. They are ingredients. They make our daily bread nourishing, rather than full of poisons or empty calories. Like A People’s History, his work is a quick tutorial, in his case, on the meaning of a phrase we take for granted, but which is slipping from our grasp.
He starts with Tom Paine’s description “that in America, THE LAW IS KING”, and asks whether it is still accurate. With eight quick strokes, he turns a rough meadow into a playing field. That gives direction, allows us to measure gains and losses, and lets us decide whether to believe the umpire, the coaches or our lying eyes:
1. Laws must be clear, predictable and public.
2. As far as possible, laws, not an executive’s discretion, should govern.
3. Laws must apply equally.
4. Laws must protect fundamental human rights, the rights of living people.
5. The cost to use the law, to defend our rights, must be reasonable, with public aid provided to make it so.
6. Public officials have a duty to act in good faith, to use restraint, to operate within the recognized limits of their powers.
7. Procedures in court must be open and fair. They must bind the state in the same way they bind those in conflict with it.
8. Binding law inherently includes international treaties and customary laws.
Bingham considered those rules axioms, not open to serious debate, though he recognized they were all under political attack in Britain and the United States. Legal aid in both countries was being cut back, even as legal costs rose. The courthouse doors were being barred to some defendants plaintiffs, a paid meter was being put on them for others, and some would be defendants were free never to have to walk through them. He knew that four or five of our present Supreme Court Justices would gag before treating international law on par with domestic law. He would not have been surprised that those same Justices put corporate speech on the same – meaning superior – footing as personal speech. He knew which views were more radical.
Bingham was an admirer, though, of US Supreme Court Justice Robert H. Jackson, a former US Attorney General and chief prosecutor at the Nuremberg war crimes trials. Bingham quotes from a speech Jackson gave in 1949. It was a critical time in the Cold War – Russian troops were blockading West Berlin, forcing its resupply by the Berlin Airlift – and a critical time in the American journey to integrate its races – Truman decided in 1948 to desegregate the US military:
“I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. This equality is not merely abstract justice. The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.“
(My emphasis.) That quote is a reminder that not every public official thinks that trying times are a time to stop thinking, a time to take the gloves off; they may be exactly when we most need the rule of law and civil liberties. I think that Jackson would have agreed with Bingham that the threat of terrorism is an inadequate justification to restrict civil liberties. Like Bingham, Jackson would have been critical of,
“extraordinary rendition” (or kidnapping), torture (or what has been dubbed “enhanced interrogation techniques”), detention without charge or trial, and, of course, surveillance. In addition to the widespread interception of private communications by hundreds of public bodies, “the UK has been said to have more than four million CCTV cameras, and the largest DNA database in the world”. The public’s apathy in the face of this is plainly a mystery to him; he is not alone.
“Old-fashioned policing”, argued Bingham, not the intrusive, expensive, contractor-driven, accountability-free surveillance state,
has probably been more effective than anything else in heading off domestic terrorism in the UK. By contrast, and in concert with many other scholars and lawyers, Bingham’s argument is that to fight fire with fire is to do terrorism’s work for it by sacrificing the very rule of law, with its underlying regard for human rights, which makes our society worth defending.