What security is there against arbitrary government?

John Gardner

  • Rhetoric and the Rule of Law: A Theory of Legal Reasoning by Neil MacCormick
    Oxford, 287 pp, £40.00, July 2005, ISBN 0 19 826878 5

The government of Securitania deports some supposed enemies of the people and puts others under house arrest; public scrutiny of these measures in the ordinary courts is denied. Disruptive people against whom no crime can be proved are subjected to orders obtained from magistrates on hearsay evidence that make it a crime in future for them to do ordinary things (such as going shopping) that would not be a crime if done by anyone else. A man thought to be acting suspiciously is shot dead by plainclothes police officers; the immediate reaction of the police chief is to obstruct the routine criminal investigation of the killing. Legislation is underway to criminalise the ‘glorification’ of those using force to resist oppressive policies at home and repressive regimes abroad; objections to the breadth and vagueness of the measure are met with the response that the authorities can be trusted to ensure that those engaging in legitimate debate will not be prosecuted. Do any of these developments make the people of Securitania more secure? Probably not. But in one way they clearly make them a lot less secure: the people of Securitania are progressively being deprived of the rudimentary security of living under the rule of law.

The rule of law is an ideal of good government. By calling it an ideal, I am not suggesting it is utopian. I mean only that it is a cluster of principles from which isolated departures may be inevitable even in a decent regime, but substantial and committed compliance with which is one key determinant of a regime’s decency. The most basic principle is this: when we live under the rule of law, the agents of the state are legally and publicly accountable in the courts like everyone else, and the courts are independent enough of the (other) organs of state to make this accountability a significant check on state power. The government of Securitania does not ignore this principle. On the contrary, it uses its de facto control of the legislative assembly to secure the passage of laws that license it to do most of the things it does. Rarely does it actually break the law. But that is because it only rarely needs to break the law. The laws that it steers through the legislative assembly provide it with generous cover for most of the things that it is inclined to do. The result is that it becomes increasingly difficult for people in Securitania to rely on the law in advance of their actions to predict how they will fare in the event that their actions come to the attention of the authorities. The law gives the authorities extensive leeway to act against people or not as they choose. Those acted against have few and difficult legal avenues for complaint about their official treatment, and there is always a risk that the government will find some technically legal way to frustrate whatever complaints are launched through the courts. Therefore, people generally have to rely on the patronage or forbearance of petty officials to provide them with whatever security they enjoy against governmental abuses of power.

This goes to show that the rule of law is not only an ideal for government; it is also an ideal for law. The government of Securitania cannot pride itself on respecting the rule of law merely by ensuring that it and its officials always act within the law. If Securitanians are to live under the rule of law, the law itself must also live up to certain standards. It must be such as to give Securitanians reliable guidance in advance about where the line falls between what is permitted and what is proscribed, and to enable them to work out what will be the likely official reaction to their failure to stay on the right side of the line. The law therefore needs to be open, clear, stable, general, consistent and not retroactive, and must be complied with impartially (without fear or favour) by the officials charged with administering it. Without law that lives up to these standards, acting within the law is a hollow achievement for the government and a constant struggle for the population.

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