The Rule of Law or The Supremacy of The Law

Posted on July 13, 2014
By Anthony Willy

Since writing the article on the Rule of law and Maori privilege (see HERE) a number of people have asked what is this Rule of law and why does it have any significance in the modern New Zealand world. It is a good question, the answer to which lawyers tend to take for granted imbibed as it is with their mothers milk, but given the absence of any civics education in the school curricular it is unsurprising that there is no widely held understanding of the content and significance of the Rule of Law. This article is an attempt to repair that omission.

In a nutshell The Rule of Law is the antithesis of the “rule of man” and in some ways it is best understood by its absence that is by examining what occurs in societies governed by dictatorships (elected or otherwise). To take a few current and recent examples:

In Germany between the wars the National Socialist German Workers Party, or Nazi party as it became better known polled 43.9% of the votes in the German Parliament in 1933 enabling Adolph Schicklgruber, or as he preferred to be called Hitler, to become the German Chancellor, and the Nazi Party to become the largest voting block in the Reichstag. Hitler’s success was made possible by the Rule of Law which prevailed in the Weimar Republic following the end of World War One. Among other rights this accorded him and his gang of “Brownshirts” the right to freedom of association, and of speech – vile as it was. This enabled the Nazi Party to participate in a political process and to increase its vote from 3% in 1924 to the success of 1933. Having secured his place by an impeccably democratic process Hitler and his gang immediately set about demolishing every vestige of the Rule of Law by which the Weimar Constitution had protected the rights of the individual leading to the Nuremberg decrees of 1933 which effectively removed all civil rights from Germans of Jewish blood, and in 1935 extended this to Negroes and Gypsies. This was followed by The Nacht and Nebel (Night and Fog) decrees of 1941. These examples illustrate most brutally what occurs when the rule of man is substituted for the Rule of Law.

The inevitable outcome of the suspension of the Rule of law is evidenced by an excerpt from a speech given by the head of the Gestapo, Heinrich Himmler on the 7 December 1941:

“After lengthy consideration, it is the will of the Fuehrer that the measures taken against those who are guilty of offenses against the Reich or against the occupation forces in occupied areas should be altered. The Fuehrer is of the opinion that in such cases penal servitude or even a hard labor sentence for life will be regarded as a sign of weakness. An effective and lasting deterrent can be achieved only by the death penalty or by taking measures which will leave the family and the population uncertain as to the fate of the offender. Deportation to Germany serves this purpose.” (My emphasis).

In 1913 following the coming to power in the Ottoman Empire of the Young Turks, and 150 years after the Rule of law as currently understood became established in much of The British Empire, Europe and America,[1] Ahmet Jamal became the dictator of Jerusalem which was then remained part of the Ottoman Empire. He was known as “the Tyrant” because of the relish with which he tortured and murdered the citizens of the city whether they be Jews, Christians or Muslims. Franz Von Papen who later became Hitler’s Foreign Minister said of him:

“Jamal ruled his fiefdom almost independently. A man of limitless influence he relished his power asking jovially: what are laws I make them and unmake them[2].”

Nothing could illustrate more poignantly the difference between government by the rule of law and government by man.

Similar atrocities were occurring in Stalin’s Communist Russia at about the same time, and are too numerous to chronicle here; ranging from the show trials of the 1930s, the wholesale murder of the Russian army officer class, and their Polish equivalents in the Katyn Forest in 1940, the 5 year plans which resulted in the mass starvation of the Kulaks and Ukrainians (which goes a long way to explaining why the current population of The Ukraine are unenthusiastic about the embrace of the Russian bear in the form of President Putin) , the  mass deportation of citizenry to the Gulags, estimated by Robert Conquest the historian as being in the region of eight million. One Historian Richard Pipes writing of the Stalinist terror[3] said of Stalin:

“Stalin was a true Leninist in that he faithfully followed his patron’s political philosophy and practices. Every ingredient of what has come to be known as Stalinism save one murdering fellow Communists – he had learned from Lenin, and that includes the two actions for which he is most severely condemned: collectivization and mass terror. Stalin’s megalomania, his vindictiveness, his morbid paranoia, and other odious personal qualities should not obscure the fact that his ideology and modus operandi were Lenin’s. A man of meagre education, he had no other source of ideas.”

As with Hitler, and for the purposes of illustrating what can happen, and has happened, when the Rule of law is replaced by the rule of man, the emphasis is on the horror of a political construct which relies on the whim of one man. Similar forces are at work in Russia today although mercifully not on the same scale. Can there be any doubt that the Green Peace activists, and the former Russian Oligarch Mikhail Khodorkovsky would have been released from their Russian prisons, or that newspapers continue to be closed down overnight, and journalists imprisoned, were  it not for the Ukase[4] of Mr. Putin.

These are the marks of Cain of every dictatorship, whether it be an individual or a collection of like minded despots, since the beginning of time and continue to be witnessed daily in countries such as North Korea, Syria, Iran, Iraq, Cuba and some African and Asian states where the hallmark of government is an arbitrary exercise of personal power over the lives and property of others. That is the rule by the will of one man. They each illustrates Lord Acton’s dictum that: “all power corrupts and absolute power corrupts absolutely.”

Without unceasing vigilance the slide to despotism and abrogation of the Rule of law is not some historical oddity it can occur anywhere at any time. Thus On the 20th January 2014 the President of Nauru (not the government by any known constitutional process) sacked its Chief Magistrate who had recently granted an injunction against the Government halting deportations for which no reason had been given. The President then refused reentry to Nauru of the Island’s Chief Justice, and for good measure brought about the resignation of The Solicitor General. The Leader of the opposition rightly characterized the actions of the President as being:

“a deterioration of the rule of law having implications on the human rights of the Islands”

What then is The Rule of Law?

The essence of the notion of the Rule of Law is that there exists a set of principles and norms by which all conduct falls to be judged and to which all people are subject. It probably has its genesis in the experience of societies from time in memoriam that peace and order are necessary for a society to prosper, and peace and order can only be had by the enforcement of minimum standards of behavior and observation of what we now loosely call Human rights and obligations. The Code of the Babylonian King Hammurabi which dates to 1772 BC contains 282 prescriptions for orderly living some of which have entered the Common Law of England which has been inherited by most countries settled by people of British stock. But probably the best example of the antiquity of the ingredients of the Rule of law are the lay prescriptions of the 10 commandments which according to Jewish history and law were given to Moses by God at the time of the exodus from the Egyptian captivity of the Jews. Three of them remain the lineaments of a great deal of our current criminal law:

Thou shalt not kill.

Thou shalt not steal.

Thou shalt not bear false witness against thy neighbour.

The more modern iteration of the concept of a rule of law is probably best expressed by the nineteenth century  English jurist A.V.Dicey. He considered that there are three elements to the Rule of Law as is currently understood by our Courts and legislature:

1. No person is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts.

There is more to this prescription than meets the eye. Thus it applies to both the person and to property. The alleged breach of the law must be distinct i.e. in a criminal case beyond reasonable doubt and in a civil case on the balance of probabilities. The penalties can only be established in the ordinary legal manner that is by applying the practices and procedures of the courts and what lawyers refer to as the rules of natural justice. And the adjudication can only take place in a lawfully established court or tribunal.

2. No person is above the law and everybody is amenable to the law irrespective of rank or condition.

It is this ingredient of the Rule of Law which mandates that all are equal before the law and no person enjoys any legal privileges denied to another. This is of course crucial because as long as it is observed it is legally impossible for a despot to impose his or her will on anybody else, and the one crucial ingredient of all despotisms is thus absent.

3. That the rights freedoms and responsibilities thus established flow from decisions of the Courts and not from any general provisions of a written constitution.

This ingredient has been criticised as being no longer relevant because so much of the law that governs modern societies is statute law enacted by Parliament. But there remains a strong element of truth in the proposition. Dicey was of course well aware that the Victorian Parliaments enacted increasing volumes of legislation governing the conduct of society, but he was making a different point  and that is; most of the legislation governing the rights and freedoms and obligations of the individual follow earlier decisions of the Courts, and some of them of considerable antiquity.

Thus in 1772 when James Somerset a slave owned by an American customs officer applied to the English court for a writ of Habeas corpus (deliver up the body) to stop his lawful master returning him from England to America. Lord Mansfield in granting the writ and stopping the removal said:

“The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it’s so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.”

Slavery was entirely lawful in America at this time and the slave trade was lawful in England. On the face of it the owner had every right to remove his property from England to America like any other, but it was the Court which reminded the Legislature of the day that there are human rights above and beyond the reach of elected governments which must be protected. And in a more modern context the rights protected by The New Zealand Bill of Rights Act are merely a codification of rights which have been protected by the common law courts for a very long time.

Although some academics like to quibble with Dicey’s analysis, some even suggesting that there is no such thing as the Rule of Law (unless of course they found themselves in court charged with some offence dreamed up by some individual) it is clear beyond argument that the courts have repeatedly affirmed the existence and force of the Rule of Law in cases of the highest authority. Internationally it’s crucial significance is recognised in such instruments as The Declaration of Human Rights 1948 where it is said:

“it is essential that if a man is not to be compelled to have recourse as a last resort to rebellion against tyranny and oppression that human rights should be protected by the Rule of Law”.

It can be safely assumed the framers of the this document knew what they were talking about it being promulgated only three years after the end of world War Two. A war which spawned abuses of human rights on an Industrial scale throughout Europe and much of Asia. Many leading statesmen and historians of the day had thought that the guilt of the war criminals was so clear that the trials were a mistake preferring instead summary execution of the accused[5], but urged on by President Roosevelt and supported by of all people Stalin, and despite all of the horrors perpetrated by the defeated powers[6] the trials took place. Such trials were unique. Never before had the victors accorded the vanquished the right to a fair and impartial trial of their misdeeds. The cynical and naive view espoused by some historians that in war, history is written by the victors, entirely overlooks the task of the historian which is first to unearth the facts set in the circumstances of the time in which the events occurred before offering any commentary. For the purposes of this article the fact is that in his short opening statement to the Tribunal Lord Justice Lawrence one of the English judges who presided, reminded the Tribunal and all who took part that:

“there is laid on everybody who takes any part in this trial the solemn responsibility to discharge his duties without fear or favour in accordance with the sacred principles of law and justice[7]”

The implication is clear that no matter how awful the circumstances and regardless of how heinous the crimes, the law must take its course and the accused must have (and did have) all of the safeguards required by The Rule of Law. The outcome of a  trial conducted in this way is that those crimes were proved beyond reasonable doubt and was a massive approbation of the Rule of law which helped cement its place in our civil society. The record of the facts proved at the trials[8] is available to all who wish to know the history of the times and the lessons to be learned from it. It also stands as a warning to revisionist historians who would have it otherwise in accord with their current notions of morality.

Finally to make the point in the context of the current New Zealand setting it is no coincidence that the code of conduct for Lawyers mandated by section 4 of the Lawyers and Conveyancers Act 2006 places a statutory obligation on all Lawyers:

“to uphold the Rule of law and the administration of justice in New Zealand”