inversions & deceptions
 in the new hegemony

This is the first article in a series examining recent erosions of the rule of law in Britain and elsewhere.


legal certainty



The state

What is the state? Is it the representative of the nation’s will? Or the agent for morally desirable interventions? Stripped of theory and wishful thinking, the state is simply the coalition with the monopoly on violence. It is that subgroup of society which is implicitly given exclusive sanction to use force against individual citizens.

We may, on balance, approve of the existence of the state. It makes certain things possible, such as military protection, and the upholding of a system of laws. However, one does not regard the state as being in a superior moral position to oneself. One does not regard everything a supermarket chain does as virtuous, just because one approves of its existence and derives advantage from its services.

The benefits which existence of the state makes possible come at a price. By granting a coalition the right to use force, there is an ongoing risk that it will use that right in unacceptable ways.


Limits on state power

The state is a useful construct which we should obey for practical, not moral, reasons. But it is a dangerous construct. The price we pay for its benefits is eternal vigilance.

The history of countries such as Russia, Germany and China shows that the power of the state, if unrestrained, may be used to appalling ends. Once an ideology takes hold according to which the state is the legitimate representative of the nation (or race, or people) and therefore does not require checks, human rights abuses soon follow.

Marxist analysis of the democratic state takes for granted that government is not a neutral entity but reflects particular class interests. This is usually conceived in terms of economic motives. The desire for power per se may be another driving force. George Orwell seemed aware of this possibility; in 1984, he has Party apparatchik O’Brien say

The Party seeks power entirely for its own sake. We are not interested in the good of others; we are interested solely in power. Not wealth or luxury or long life or happiness: only power, pure power.

Agents of the state are human, and personal motives can enter into the actions they take, at times resulting in the unjust punishment of individuals. More mundanely, such punishment may follow mechanically as a consequence of a bloated and overstretched state apparatus. This can happen via badly worded laws to which too little thought has been given, inefficient administration, or lack of coordination between different parts of government.

For all these reasons, limits on its power are an essential part of having a state.

Constraints on state power will usually be in a state of tension. There will be ongoing pressure from within the state to expand its freedom of action. Such constraints therefore require continual reinforcement, by those independent of the state system. Incursions by the state into unacceptable territory need to be rejected. Arguments that the state’s powers should be increased must be countered. This process of resistance suffers from the problem that the resources available to the state — especially the modern state — typically dwarf those of any private citizen or group of citizens.


Laws

Tied up with the existence of a state is the presence of a legal system. Laws reflect what is regarded as desirable constraints on the way individuals interact with another, but they also define the limits of state power. In a society ruled by a legal system, the state may (ultimately) only use force against those of its citizens who have broken the law. At least, in theory.

The idea that laws should define the limits of state power goes back to Magna Carta, and the principle that those who govern should themselves have to observe the law. This is quite a distinct issue from whether the laws in question are good ones. The point is that the state’s powers should not extend beyond what is defined by the law.

The laws themselves may of course be bad laws. ‘Badness’ in laws can range from those that are badly drafted and mildly annoying, to those that intentionally permit atrocities.

One can try to promote ideals with which laws ought to be in accordance — for example, that human life should not be taken, or that there should be no discrimination — but such ideals will vary from society to society, will change over time, and are always liable to deliberate misinterpretation or other forms of subversion.

That state power should be limited to what is defined by law, on the other hand, is a fairly simple demand, and relatively free from the possibility of misinterpretation or re-interpretation.


Legal certainty

For state power to be limitable to what is defined by laws, the laws need to be known, or at least knowable. That means laws need to be clear and unambiguous, at least to someone with legal expertise.

Every individual should, with the assistance of independent legal advice if necessary, be able to predict whether an action on his part will, or will not, generate a right for the state to use coercion against him. One should not have to depend on interpretation of the rules by agents of the state.

Laws should be narrowly defined, to apply to the specific crime being targeted. A law should not be drawn deliberately widely, to provide a catch-all for a new offence that may be sketchily conceptualised in the minds of its instigators, and requiring agents of the state to use their discretion about when to apply it.

The principle that the rules of state coercion should be clear and readily ascertainable, with the use of discretion kept to a minimum, is known as legal certainty. Hayek gave a useful description in The Road to Serfdom.

Government in all its actions is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances

A high degree of legal certainty may not be a sufficient condition of a civilised society but it is surely a necessary one. Without it, our liberties are severely constrained: we are unable to act with confidence that our actions will not be deemed criminal.

This is perhaps particularly the case for laws restricting speech or publication. Even a minor lack of precision in this area of legislation can have enormous ramifications for freedom of expression.

Legal certainty is also important in a commercial context. Those who contract with one another need to be able to know the legal conditions under which they do so with a high degree of confidence. Harvard professor Robert Barro, among others, has emphasised the positive relationship between economic growth and a well-functioning and predictable legal system.

In his 2010 book The Rule of Law, Tom Bingham, the former Lord Chief Justice, asserted that the law should be accessible, intelligible, clear and predictable, quoting fellow Law Lord Kenneth Diplock:

the need for legal certainty demands that the rules by which the citizen is to be bound should be ascertainable by him [...]
by reference to identifiable sources that are publicly available.

The rule of law

The requirements that:

(1a) the state’s power of coercion be limited to what is defined by the law, and
(1b) the courts are able to enforce this;

and that:

(2) laws are characterised by legal certainty

are key planks of an ideal that has become known as the rule of law.

The phrase rule of law has over time acquired an image of desirability — an ethical standard which most nations aspire to meet. Unfortunately, the original idea has to some extent become mixed up with other legal and political concepts considered desirable. There is now a tendency for the phrase to be used to cover whatever characteristics are thought to be good ones for the state and the legal system to have.

It is perhaps regrettable that Lord Bingham, whose book on the topic was in other respects a model of clarity and sense, followed the more hybrid approach to the rule of law by including “human rights” as one of its elements. Among such rights Bingham counted “the right to education”, leading him to suggest (somewhat paradoxically) that compulsory education — effectively a form of state coercion — could be a necessary feature of a society which observes the rule of law.

Diluting the legal certainty aspect of the rule of law with other political ideals is likely to weaken it. Once we include additional rights in the formula, it becomes possible to say those rights should be given more weighting than constraints on state power when attempting to uphold the rule.


Principles and their erosion

Legal certainty is a principle which protects the individual from the arbitrary use of state power. As with any principle, there will be occasions when it appears to observers that enforcement of the rule leads to a less-than-ideal outcome. That is part and parcel of having a principle. A principle does its job provided it is applied rigorously. If we start nitpicking and wanting to apply it selectively, according to the conditions of each case, it loses its raison d’être.

Promoting legal certainty, or other limits on the state’s powers such as double jeopardy, may mean that not everyone who commits an act we wish to prohibit will be punished. Yet it ensures that innocent defendants are less likely to suffer from accidental or ill-motivated injustices. This appears to be a point increasingly lost on legislators in modern democracies, who often seem to suffer from a misplaced drive to ‘get things done’ — and get them done quickly — without adequately thinking of the ramifications. A 2010 report by the Better Government Initiative noted that “there has been too much legislation in recent years [...] and too much of it has been badly prepared.”

Tony Blair, and some of his ministers, were notorious for thinking that civil liberties needed to be rolled back to give more weight to the ‘interests of victims’. This was to some extent rationalised by redefining the word liberties to include the ‘liberties’ of those other than the defendant. Former Home Secretary David Blunkett, for example, argued that abolition of juries in certain cases was not “an act of sabotage on civil liberties [but will] provide liberty and freedom for all the rest of us”. The abolition in 2004 of double jeopardy, a protection in place since Norman times, was given a similar justification.

Principles have to weather occasional tests if they are to survive. Test cases will often involve scenarios where it is not clear that the principle is generating the result we want. (A US Supreme Court judge once pointed out that the safeguards of liberty “have frequently been forged in controversies involving not very nice people”.) The temptation in those cases is to conclude the principle should be abandoned, or only used when it suits.

Once we break with a principle, we have lost the greater part of its benefit. The break creates a precedent, and the principle is unlikely to have the same force in future. It will become just one more guiding idea, to be weighed up against other competing concerns.


The motives of those with the monopoly on violence

A corporation does not have a mind. Yet in practice, it is liable to behave as if certain motives are attributable to it.
• It would like to get bigger.
• It would like to be free of constraints.
• It would like to silence its critics.

Like corporations, so governments.

Whenever the state is proposing to violate a principle which limits its behaviour — justifying this by reference to doing good, or preventing harm — it is worth bearing these motives in mind.


The next article in this series will look at counter-terrorism legislation in relation to legal certainty.




The writer is a Research Director at Oxford Forum.

Oxford Forum is an association of independent academics, founded in 1998 by Dr Celia Green to oppose ideological bias in mainstream academia.




notes

1. The first use of the concept of “monopoly on violence” to define the state is usually ascribed to sociologist Max Weber. I am using the word coalition in its game-theoretic sense of “group of cooperating individuals”.

2. Extract from 1984: chapter 3.

3. Extract from The Road to Serfdom: chapter 6.

4. Tom Bingham, The Rule of Law, Penguin Books 2011, pp.37, 39, 83.
In contrast to Bingham’s “substantive” conception, a number of other legal theorists, such as Joseph Raz, hold a “formal” conception of the rule of law, according to which it does not stipulate what kinds of laws a state should have, but simply insists on observance of laws, which should be clear and ascertainable.

5. Better Government Initiative, Good Government: Reforming Parliament and the Executive.

6. Quote from David Blunkett: speech to the 2003 Labour party conference.

7. US Supreme Court judge: Felix Frankfurter in United States v Rabinowitz (1950).




published 30 January 2017




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