The Rule of Law

 

 

The Rule of Law is the keystone of a good constitution. Ordinary life is hazardous, confidence shaken, enterprise inhibited, prosperity destroyed, if officials are lazy, incompetent, untrustworthy and corrupt. I live from day to day, hoping that no policeman will demand a bribe not to book me for crossing the street at an unauthorised place; I keep my head down, lest some tax inspector turns up demanding alleged unpaid dues; I don't improve my farm for fear that it will be expropriated by some crony of the governor; foreigners refuse to invest because they know that they will not know whom to bribe and on what occasion. Without the Rule of Law a society is condemned to the impoverished tribalism of prehistoric times.

In recent times it has often been thought that the Rule of Law is to be identified with Democracy. That is not so. It is wider than democracy, but also a constraint on democracy. There have been many regimes which could not in any way be described as democratic, but which none the less observed the Rule of Law. And some regimes that could claim to be democratic have flouted the Rule of Law. Totalitarian democracy has been with us since the French Revolution. It is easy for some government that has obtained a popular mandate to set up a Committee of Public Safety which treats all opponents as terrorists, and sends them off to the guillotine or the firing squad. Often, of course, elections are fudged or faked. But even if an election is fairly carried out, and produces a government that is supported by a majority of the populace, it still does not have the right to do whatever it thinks fit, or to violate the requirements of the Rule of Law.

There are two reasons why the Rule of Law should be observed, one of practicality, the other of principle. Rulers may, of course, be able to maintain their rule for a long time without cooperation of the ruled. But always there are incidents and facts which some individual knows, but which the rulers will not know unless that individual tells them. And he will not tell them unless he trusts the authorities to treat him fairly. Where the government is viewed as arbitrary and tyrannical, subjects will withhold information, and may develop a sub-culture enforcing its own rules of behaviour. In any case the government will be deprived of information, some of which is crucial to effective government. Whistles will not be blown, lapses of safety precautions will not be reported, and in due course trains will crash, nuclear reactors explode, submarines sink, and the government enfeebled by inefficiency and incompetence.

Governments believe their subjects ought to obey them. And so they ought. But it is a two-sided argument, and in thinking through the reasons why we ought to obey the government we come across reasons why the government should take proper steps to protect the rights of the governed. Many of the arguments on both sides turn on the Prisoners' Dilemma. Protagoras, Plato and Hobbes saw it as characterizing the state of nature, and---in different ways---saw the State as the means of escaping from it. We need some sovereign exercising coercive power to shield us from our enemies and to enforce judgement on recalcitrant fellow subjects. But Leviathan too is a potential menace. He may wield his big stick not against enemies and miscreants, but against us. We, his vulnerable subjects, need to form a league, a Vindicia contra Tyrannos, to ensure that the stick is no bigger than it need be, and is used only for its proper purpose. If we re-examine Hobbes' argument from the Prisoners' Dilemma, we see that under generally prevailing conditions only a little stick is needed; most people will refrain from pushing self-advantage to extremes, provided they can be sure that others will exercise like restraint.

The two-way argument is an argument from justice. Arguments from justice do not always conclude with one's getting what one wants. Often we are disappointed by an adverse verdict. What justice seeks is that the adverse verdict is based on considerations we can see to be reasonable. I may be reluctant to accept that I should be called up, taxed, or required to wear a seat-belt, but the reasons---that we are in danger of invasion, that the money is needed for public services, that it is in my own interest---are faceable reasons I ought to accept. The government may legitimately claim that I ought to obey it, but then it needs to be acting for reasons whose cogency I ought to acknowledge. But this is far too vague, and misses some essential features of communal life. Although many thinkers hav3 believed in a Natural Law which would lay down what governments and subjects ought to do, they failed to recognise the importance of conventions. There is no law of Nature telling us whether we should drive on the left side of the road as in Britain, or the right side, as in the rest of the world. And in many other more serious matters different societies have drawn different lines as they balance competing considerations. The Rule of Law recognises this. It does not say that there is one right decision to every dispute, and recognises that different jurisdictions may reach different decisions. What it demands is that different ways of deciding things should be articulated as laws, and decisions should be made in accordance with them.

That decisions should be made in accordance with laws is a clearer requirement, but still leaves room for dispute. Hayek cites an example of a law in Germany carefully constructed in general terms, but being in application arbitrary and unjust. Aristotle much earlier (at the end of the fifth book of the Nicomachean Ethics )had discussed the difficulty of formulating laws to cover exactly all the cases that ought to be covered. There is much more to be said about this problem, but here as often a negative approach is sensible. We may not be able to say exactly what the Rule of Law requires, but we can specify some things it refuses to countenance. It forbids taking decisions for fear or favour. Pontius Pilate buckled under threat of delation to Tiberius, who was going mad, and gave sentence as demanded; and many governors in Siberia would have been similarly unwilling to risk Stalin's suspicious rage. Judges must be independent of the powers that be, in order to know that they will not themselves suffer if they decide against some government protégé, and must themselves not favour any litigant for pecuniary or personal reason. In order to avoid their being influenced by fear, they are in Britain appointed with tenure and with ring-fenced salaries, and with no normal promotion ladder; and in order to avoid their favouring one party or another, they are required to hand over to another judge any case where they know either party, or have any interest that could influence their decision. But we go further: disputes should be settled by reference to actual cases, and not for extraneous reasons of state. There is nothing venal in deciding that it is expedient that one man should die for the sake of the people, but it is not a valid reason for condemning him to death. The Rule of Law requires not only that judgements should not be corrupt, but that they should not be taken for raison d'etat. Britons are outraged at citizens being extradited to the United States to face criminal charges for actions which were done in Great Britain and were not crimes there. No doubt the government had reason to curry favour with the United States, but just as retrospective legislation is against the rule of Law, so also it is contravened if someone handed over to a foreign jurisdiction for something he had done that was not a crime where he did it. Not that considerations of public interest cannot enter into the law. As we have seen, men can be conscripted and sent to their deaths in defence of the realm. Treason has always been a crime. Many laws are framed to protect the public. But they are laws, not covert pressures on the administration of the law in particular cases. In the subjects league against the potential tyranny of the sovereign, they all come to the aid of each. The sovereign should not be able to pick off individuals one by one; if public policy requires people to sacrifice their interests, the burden should be publicly placed on all by law, and not put upon any single individual in the course of administering the law.

Judges are few in number, and it has been feasible to appoint only honest and high-minded men to be judges, because in the wake of the Reformation there have been a substantial number of men imbued with a natural independence of mind and a strong sense of integrity, so that judges, once freed from executive control, could be relied on to interpret and enforce the law impartially; and later in the Victorian age to secure the service of public spirited officials who, whatever their other failings, were honest and incorruptible. But the Indian Civil Service and the Colonial Service failed to inculcate these attitudes sufficiently strongly, and in most parts of the former British Empire corruption is endemic, and one of the chief causes of their poverty and backwardness. Similarly in countries that have suffered under brutal and totalitarian regimes, when it was dangerous ever to put one's head above the parapet, there is a dearth of people imbued with a sense of public duty, The great question, there and elsewhere, is how to eliminate corruption and establish the Rule of Law with the limited resources available.

The most effective way to get rid of corruption is to make it logically impossible. It is logically impossible to bribe an independent entrepreneur. I may give a plumber 50 to mend my frozen pipes, but it is not a bribe: it is a straight payment. By cutting the State down to size, we not only get rid of Leviathan with his big stick, but convert under-the-counter bribes into above-board profits. It does not come naturally to politicians to dismantle the over-large State: they like to be seen to be doing things. Nevertheless, with retrenchment goes reform. The less the State takes upon itself to do, the fewer the opportunities there are for corrupt dealing.

But we cannot get rid of the State altogether. We have to have police and customs officials and many other administrators to run the public services, and we need to devise ways of countering the general tendency to feather one's own nest in the course of performing public functions. The key point, where we can obtain leverage to start changing things, is the fact that although individuals are all too ready to favour corruption in themselves, they do not like it in others. Popular opinion is against it, and there will always be a majority who disapprove of it in general, though not necessarily without exception. Public opinion is powerful prophylactic provided it is informed. Transparency spreads information, and small is transparent---in a small organization there is less room to hide, and close colleagues are more likely to spot what is going on. That, however, is not enough. They may spot what is going on, and join in the peculation. But corruption, because it is devious, takes time to develop: I cannot, on going to a new office, announce that I am ready to be party to any shady dealings---or rather, if I do, I am likely to be bowled out by someone who hears me saying it, and does not see why I should make off with a lot of undeserved lolly. If I am to be prudent, I must be circumspect, and that takes time. From which it follows that corruption can be disrupted by timely changes. If officials are shunted around at irregular intervals, the cosy relationships that the outgoing incumbent has cultivated will not be immediately available to his successor. He will have to walk warily at first, because if he shows his hand to the wrong person, his venality will be known, and he will get into trouble. The straight and narrow is the safest path. And by the time he has discovered from whom he can safely demand a bribe, it will be time to move on.

A second remedy is to dualise. If the Government Inspectorship is entrusted to a two-some, it will be dangerous for either to engage in any dubious practice, since the other will be in on everything he does, and neither will be able to do anything that will not be noted by the other. If there is a further policy of having one official drawn from those who are familiar with the job and the other from a different department, there will be the added advantage that accepted departmental practices, and not only corrupt ones, will be exposed to critical scrutiny, leading sometimes to the elimination of encrusted waste and inefficiency.

The requirement to declare an interest is a third antiseptic. It is not feasible to extend to all the business transacted by officials the high requirement imposed on the judiciary, that they should disqualify themselves if they have any connection with any party involved---often officials need to know the people they are doing business with. But if they declare an interest it alerts everybody else to the possibility that they are being unduly swayed by it, and puts them in the wrong it it turns out that there was an interest they failed to declare.

Measures such as these help to focus the general disapproval that most people feel for corruption into powerful sanctions against it. But they will not always work. Power tends to corrupt, and politics is about power. There will always be pressure from the top to bend rules to favour the friends of those in power. The West is as vulnerable as the East. Britain and America like to portray themselves as paragons of Gladstonian rectitude. But Britain is just discovering the extent of cronyism in 10 Downing Street, and the appointment of judges to the Supreme Court of the United States of America is becoming more and more a matter of politics.

Britain and the United States are examples not to be followed in another respect, though in opposite ways. The antiseptic effect of having to declare an interest depends on there being adequate publicity. Modern totalitarians use their power to deny their opponents access to the media. Berlusconi was able to remain in office for years, because his misdeeds were not brought to the attention of many voters. To prevent this, much emphasis is laid on the freedom of the press. But in Britain the press is shackled by laws about libel and against criticizing certain minorities, while the American Constitutional right to free speech is so extreme that anything goes and nothing counts. The recent Presidential election was marred by the disinformatioin put out by both candidates blackening their opponent's reputation, with the consequence that nothing that was said was believed.

We are living in a new age, the age of information, and we have to think from first principles how to secure the Rule of Law in cyber space, inhabited by many people ready to tell lies for their own advantage. Politics can learn from ordinary commerce. For generations we have had advertisements, and now we are surrounded by web sites telling us how much they love us, and what good things we can get from them in return for our money. Some are truthful, others are not, and it is difficult to know where to begin in establishing standards of assured truthfulness. The key point, where we can find an island of truthfulness is in the Prisoners' Dilemma between two people who can recognise each other. On any one occasion I can deceive you, and pull wool over your eyes, but thereafter you will know that I am not to be trusted, and will not trust me. Two-person conversations winnow out deceivers, and establish relations of tested trust. This has always been so, and people have been much more guided in their purchases by neighbours' recommendations than advertisements' blandishments. The difference now is the enormously extended range of neighbourhood. I can consult with like-minded friends anywhere in the world instead of only those living geographically close to me. This has greatly enhanced the freedom to tell, and to be told, the truth. No wonder that totalitarian tyrannies try to prevent internet access. Once there are relations of tested trust, there are communities of trusted truthfulness, whose criticisms tell, because they are true and known to be true. This worked wonders in day-to-day shopping. Many years ago I was involved in the consumer movement, and with the aid of the magazine Which? set up a consumers' group in Oxford. Which? took no advertisements and was entirely paid for by subscriptions, and so was demonstrably free from covert pressure of advertisers, and its judgements were soon recognised as authoritative, and led to a great improvement in the goods and services on offer to shoppers. We need the same to happen in politics. One of the symptoms of the present crisis in Britain is te erosion of trust. ``Never believe anything until it has been officially denied'' is widely thought. It is too cynical. Lazy scepticism is bad citizenship. We need to discriminate, and since it takes time to go into matters carefully, we need to have bodies that can look into them properly and reach judgements we can respect. In Britain the courts could do it, if the law was properly reformed. Other countries need other institutions. Sometimes, where governments are particularly oppressive, freedom and independence can be guaranteed only by being located abroad---once again, access to the internet, and thus to foreign sites, is abhorrent to totalitarian regimes.

Truth hurts, but some politicians have thick skins. In Britain investigative journalists discovered that many Members of Parliament had been cheating on the expenses they had been claiming. Many had not: about one third had been absolutely honest, and many of the others had been clearly within the letter of the law, if not the spirit. But it is only very recently that some, guilty of gross malpractice, have been brought to book, and have been forced to resign or are facing criminal prosecution. Even if trustworthy bodies, independent of the government, are established, whose judgements deserve and get widespread respect, how do we give them effective clout, so that a corrupt official cannot simply brush off the revelation of his misconduct, and continue as before? It is a question of practical politics, and I can give no ready-made answer. But two points may be helpful. The first is that corrupt regimes, just because they are corrupt, are riven with internal feuds. The exposure of one corrupt official may give a rival just the opportunity he had been waiting for to oust him. Even if no means are in place for dealing with officials' malpractice, exposure may result in loss of office. The second counsel of practicality is to be realistic in what can be achieved. The consumer movement in Britain has not weeded out all malpractice and misleading advertisements. There are many grey areas in public life where officials may have been corrupt, but may have merely been incompetent or careless. It is important not to overload the complaints system. Better to go first for just a few scandalous cases, where no defence is possible, and every one will be appalled at such goings on. Every time corruption is exposed and the guilty party actually suffers for it, the message is spread wide, and many others will fear to run the risk of a similar fate.