The Rule of Law is the keystone of a good constitution, but is not well understood. 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.
The Rule of Law has been difficult to defend because it has proved difficult to define. We are quite sure that judges should not take bribes, but there is a slippery slope from obvious venality to subtle pressures that are not quite above board but seem an inevitable concomitant to effective government. It is not clear where the line should be drawn, and so there is constant pressure to extend the grey area which we find difficult to resist.
It is natural to start with the requirement that laws should be written down and published: then everyone can read them and know what he is required to do. But being written down is neither necessary not sufficient: in Iceland the laws were not written but were recited from memory at a yearly meeting, and Draco's code, the first to be written, was repressively severe. Modern laws and regulations are equally open to criticism, not only for being needless restrictive, but often for favouring one interest group, good at lobbying, over others which only seek a level playing field.
WHY DO WEE NEED THE LAW?
It is largely our concept of law that is at fault. We have inherited from Greek philosophers and Roman jurists what may be termed the “Big Stick” theory of law. Laws exist to prevent and punish determined wrong-doers who will not be deterred by anything other than coercive force. The only alternative to the law of the jungle is to have a sovereign with a monopoly of coercive power, whose word is law quod placuit principi legis vigorum habet. Against this dangerously untrammelled power of a sovereign there arose first mediaeval theories of natural law and then contract theories, most recently articulated by John Rawls in his Theory of Justice. Both capture important insights, but neither is adequate on its own. Natural law theories are based on the rationality of human beings.
We can reason, and work out what is right. But even if perfectly rational and perfectly moral, I could not by reason alone always discover what I should do. I cannot discover by reason alone that I ought to drive on the left in Britain and on the right in Europe. Many features of ordinary life are like the rule of the road: they depend on collective preferences, often ones that emerged gradually over the course of time. We need to be guided not only by the light of nature but by sensitivity to our social surroundings. Contract theories fail to formulate any plausible terms for the putative contract they posit, but capture the insight that government exists for the sake of the governed, and that the law-enforcer is not entitled to make arbitrary decisions, but has fiduciary duties that go with his office.
Law is not primarily a vehicle of coercion to suppress determined wrong-doers, but a common understanding of how to settle disputes. Only in a small minority of cases is actual coercion needed. It is important that it be known to be available if all else fails, but mostly simple adjudication is enough, backed up by social disapproval against reluctance to abide by disappointing judgements. The common law approach enables us to identify different requirements implicit in the rule of law. We require it to be administered without fear or favour. 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 themselves not favour any litigant for any pecuniary of personal reason. But we go further: if the law is a common possession of society for settling disputes, they 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, are not crimes, in Great Britain. No doubt the government has reason to curry up to the United States, but that was not a reason for a British subject to be 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. 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.
Modern thinkers often argue that laws, to be laws, must be enacted by a legislature. As a general account of the history of law, this is false. Custom and public morality have long been recognised as other sources of law. But there is a further argument from freedom that has greater weight. Laws legislated by a legislature are written laws; written laws can be read by everyone, and everyone therefore can know what is allowed, and what he can do without falling foul of the law. He has a freedom which in pre-Draco times was denied to ordinary members of the public.Unless judges are forbidden to dream up laws on their own, the citizen does not know where he stands, and cannot plan his future with confidence. But it is impracticable to tie down judges completely. The Code Napoléon tried to do so, but failed: in being guided by the written word, judges have to interpret it. In order to be reasonably sure about what he can get away with, the smart guy has to consult a solicitor, who has mastered not only the (often opaque) wording of the stature by a host of precedents about what it means in various sorts of case. The ordinary citizen can have a rough and ready knowledge of the law, and how to steer clear of trouble, but if he wants to sail close to the wind he needs an expert pilot.
A second argument for restricting morality from being a source of law arises from an understanding of the nature of morality. Morality is different from law. We sometimes say "There ought to be a law against it", which only makes sense if in fact there is not. There may be good practical reasons the cost of enforcement, the avoidance of blackmail for not making wrong-doing a crime. And there are deeper reasons too. Christianity taught that the public morality of ancient Israel was not by itself enough, and that one needed to go beyond public morality and commit oneself to much more. But individual commitment is individual, and ought not to be enforced on others by the law. I may give my body to be burned or used for medical research, I may give all my goods to the poor, I may devote my life to helping the poor in a Johannesburg slum, and these may be things I genuinely ought to do, but I ought not to compel other people to do likewise. From this it is argued, most famously by J.S. Mill, and more recently by H.L.A. Hart, that morality is entirely separate from morals, and that the only valid ground for prohibiting any sort of behaviour is that it is harmful to someone else, the mere fact of its being, wrong being entirely irrelevant. Mill's arguments do not hold water – 'harm' is too vague a concept to carry weight, and when investigated, turns out to involve moral evaluations but should make us wary of reading too much into public morality. We need to leave room for different individuals to realise their different commitments, allowing a large measure of liberty in order to facilitate a flourishing autonomy of will.
But a large measure of liberty is not a complete licence. The issue came up in 1961 when a Mr Shaw had published a directory of prostitutes. In his defence it could be argued that there is in England no law specifically against publishing a directory of prostitutes, although there are many laws against procuring and the like. The court found him guilty none the less, citing precedents establishing that public morality could be a source of law. Shaw's own moral principles might differ, but did not entitle him to set aside public morality. Nor was there a plausible argument from freedom: what he was doing ran counter to the general tenor of the law. He was trying to exploit what he took to be a gap in the law, and failed.
Law is not the same as morality, but law and morality, along with custom and convention, are the fabric which makes communal life possible. The way that law develops, often encompassing law and custom though not coextensive with it, is sometimes indeterminate, but in general clear enough to distinguish what considerations should, and what should not, enter into a judicial decision. We know what the Rule of Law requires. The difficult is to bring it about. Britain and America were able to do so, because in the wake of the Reformation there were 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 or 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. The great question, there and elsewhere, is how to eliminate corruption and establish the Rule of Law with the limited resources available.
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 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. Moreover, and most importantly, it is impossible to bribe a tradesman, say a plumber, to come and do a job, since, being his own man, any payment made to him is not a bribe but an above-board payment. In an economy of small operators there are fewer opportunities for corruption, and a greater climate of straightforward dealing. It is sensible therefore to downsize, so far as is possible. In particular, as little as possible should be undertaken by the State.This runs counter to the inclinations of politicians who want to be seen to be doing things. But in any society in which there is a dearth of honest and conscientious men, we need to ration the appetite for having public officials, so that the available few are placed where they are most needed. Judges in Britain are, and are believed to be incorruptible, because they are well paid, and effectively irremovable. That may not be enough, but it is a good beginning. But they are few, and even if we down-size the State, other officials are needed, to issue licences, collect customs, and perform other duties that only the State can undertake. How can we prevent public officials becoming corrupt, if we must recruit them from a public that, while generally disapproving of corruption, is not committed to absoluter integrity?
Corruption, because it is devious, takes time to develop, and can therefore 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 declared an interest it alerts everybody else to the possibility that they are being unduly swayed by it, and puts them in the wrong 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, and to re-Rule the Law to fit their agenda. 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.
John Lucas is a British philosopher. Born in 1929, he was educated at Oxford where he later taught for 36 years until retiring in 1996. John Lucas wrote many works on the philosophy of mathematics, science, religion, political philosophy and more. In his best-known work entitled Minds, Machines and Gödel(1959), Mr. Lucas insists that an automaton cannot represent a human mathematician and refutes computationalism. He is Fellow of the British Academy. His main books include Principles of Politics, 1966; The Concept of Probability, 1970; The Freedom of the Will, 1970; The Nature of Mind, 1972; A Treatise on Time and Space, 1973; On Justice, 1980; The Future, 1989; Spacetime and Electromagnetism, 1990; Responsibility, 1993; Ethical Economics, 1997; Conceptual Roots of Mathematics, 1999; 2003; and Reason and Reality, 2006. John Lucas helped establish the Oxford Consumers' Group and was its first Chairman.