The rule of lawyers
The law must not be used to thwart the popular will.
This year’s BBC Reith Lectures were delivered by former Supreme Court justice (and sometime medieval historian) Jonathan Sumption. His topic, ‘law and the decline of politics’, could not be more, well, topical. Less than three years ago, Sumption himself participated in the Supreme Court’s eight-to-three decision in Miller v Secretary of State, the case that sent Brexit back to parliament for a vote. Sumption was in the majority in that case, and although his Reith Lectures focused on the threats that activist courts pose to democracy, he did not see Miller as an example of judicial overreach. As he argued in the Q&A period following his final lecture, Miller didn’t assert the superiority of the courts. It affirmed the sovereignty of parliament.
Throughout the lectures, Sumption argued that courts should apply laws, not make them. He wants to see political questions decided by politicians, not judges. He thinks that the European Court of Human Rights has vastly overstepped its mandate by wading into areas that should be the preserve of democratic decision-making. He also criticises his former Supreme Court colleagues for being too ready to legislate from the bench. He even argues that human rights ‘cannot be above legitimate political debate except in a totalitarian state’.
Then he went and ruined it all by ending with a call for proportional representation.
Sumption believes that proportional representation offers the best chance of breaking the political deadlock over contentious issues like Brexit. In a proportional system, ‘the process of policy adjustment and compromise which currently operates within political parties would, instead, operate between political parties’. Politicians could deal directly with other politicians, as they do in most European countries, without having constantly to kowtow to the narrow views of their party bases. Instead of one party bearing all of the responsibility of government, the entire political class could govern collaboratively in the best interests of the country, preferably in coalition governments.
Lord Sumption may be a maverick of a barrister, but he is no democrat. In fact, he seems to like proportional representation because it keeps political power as far away from the people as possible. He also excoriates referendums for taking ‘decision-making out of the hands of politicians, whose interest is generally to accommodate the widest possible range of opinion, and [placing] it in the hands of individual electors who have no reason to consider any opinion but their own’. He fully understands that the ‘very object of a referendum is to inhibit an independent assessment of the national interest by professional politicians’, an approach to democratic decision-making that he believes is ‘completely misguided’.
If democracy means anything at all, it means that ‘the people rule’
There are many good arguments against referendums. One of the best is that a poorly framed referendum can lead to political chaos. Sumption himself points out that the Brexit referendum statute did not state what the law would be if the people actually voted to leave, presumably because the British political class did not envisage such a possibility. Another is that a referendum can be intentionally framed to present a Hobson’s choice, like the proposed People’s Vote that would offer voters either a poison-pill Brexit or no Brexit at all. But for a pure up-or-down poll of the views of the electorate, it is hard to beat a referendum. If politicians don’t want to know the answer, they shouldn’t ask the question.
To Sumption’s credit, he seems to agree. Not asking what you don’t want to know seems like sound advice from a seasoned barrister. But no matter how sound the advice or seasoned the adviser, it is still not very democratic. If the best answer to the Brexit fiasco is not to have had a referendum in the first place, then Britain may as well roll back the Reform Acts and give up on democracy entirely. The Unreformed House did a pretty good job of governing the country without it.
The best form of government
If democracy means anything at all, it means that ‘the people rule’. Just like monarchies and oligarchies, democracies can produce better or worse policies, depending on the qualities and prejudices of the people who are ruling. The people can be fickle masters, and they often want terrible things. The Greek historian Thucydides tells the story of how the people of Athens voted in 427 BC to exterminate the entire population of its erstwhile ally Mytilene, only to change their minds the very next day. Those same sovereign men of Athens (Athenian women had no political rights) three decades later passed a death sentence on the philosopher Socrates, supposedly for ‘corrupting the youth’. Socrates argued that he should have been given a life pension instead.
Socrates knew better than most that if you ask the people what they want, they just might tell you. One of his few historically recorded actions occurred in 406 BC, on a day when he was, by random chance, the speaker of the Athenian assembly. He prevented a rash decision by the assembly to condemn six generals to death by refusing to put the motion to a vote. To no avail: the assembly later voted to execute the generals anyway. Soon regretting its decision, the assembly then voted to execute the prosecutors who had urged the execution of the generals. So much for the wisdom of crowds.
No one remotely sane ever said that the people were always right. Political pundits and would-be political philosophers are fond of quoting Winston Churchill on this. Famous for his off-the-cuff remarks, Churchill is supposed to have quipped that ‘democracy is the worst form of government except all those other forms that have been tried from time to time’.
Now, it is a clever remark. But it is not nearly so profound as what Churchill actually said. And his remarks on 11 November 1947 were hardly off the cuff. The occasion was no less momentous than a debate over amendments to the Parliament Act 1911, the law that still governs Britain to this day. Clement Attlee’s Labour government wanted to rework the constitution in its favour, and ultimately succeeded in getting its changes through two years later. In opposition, Churchill cautioned that ‘it is not parliament that should rule; it is the people who should rule through parliament’. He thought that the existing Parliament Act was right to include checks that could slow down the progress of new legislation, even when it had the support of a majority in parliament. He argued that delaying controversial legislation gave the people the opportunity to examine and debate it. He acknowledged that democracy is neither ‘perfect’ nor ‘all-wise’, but he preferred engaged democracy to closeted cabinet government. Expanding on that point, he continued:
‘Indeed, it has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time; but there is the broad feeling in our country that the people should rule, continuously rule, and that public opinion, expressed by all constitutional means, should shape, guide, and control the actions of Ministers who are their servants and not their masters.’
Churchill was, of course, half-American, and we Americans like to think that his pushy Brooklyn-born mother had more influence over the development of his political instincts than his much revered but thoroughly aristocratic father. Along with Churchill, we believe that democracy isn’t the worst form of government except all the others. It’s the best form of government. But it does need some tempering to make it work well. Full credit goes to the English, or perhaps to their Anglo-Saxon ancestors, for discovering how to temper democracy, because they discovered how to temper all forms of government. British democracy was blessed before it was born because even when England was a monarchy, it already possessed the single most important characteristic of a successful democracy, other than democracy itself. That magic ingredient is the rule of law.
The law of the land
Law itself may go back to the Ten Commandments, Hammurabi’s Code, and the Twelve Tables, but the rule of law is relatively new. Ironically (and perhaps counterintuitively), it is fundamentally social, not legislative. In countries where the rule of law prevails, people expect the law to be routinely applied in a fair and equitable manner. Anyone who thinks that the Ancients really believed in the rule of law has not read much classical history. Every country has laws, but few have ever enjoyed the rule of law. The rule of law is no trifle. It is the lifeblood of advanced capitalist society – and of democracy.
The English can lay fair claim to inventing the rule of law, or at least the rule of law as it has come down to us today. Other peoples might have theorised about it, but the rule of law as it is actually practiced in the world today derives from Anglo-Saxon England. It was first formalised and written down in Magna Carta of 1215:
‘No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.’
The principles embodied in Magna Carta were not cut from whole cloth on the fields of Runnymede. On the contrary, they long predate the Norman Conquest. That is why they applied only in England, not in the English monarchy’s French possessions. They later travelled to the settler colonies of North America and Australasia. They underwrote the various American state constitutions, and later the Constitution of the United States. In the early republic, the Federalists argued that the Constitution didn’t need a Bill of Rights, because all the rights contained in it already existed in common law. The Anti-Federalists knew better, and insisted on putting them in writing. As a result, the ancient rights of Englishmen are now better protected in the United States than anywhere else in the world.
The rule of law isn’t primarily about regulating the behavior of ordinary citizens; it‘s about regulating the behavior of the government
The rule of law is indispensable to the proper functioning of democracy because it guards against the tyranny of the majority. Ancient writers like Aristotle worried that private property could never be secure in a democracy, because the majority could simply vote to expropriate the rich and take all their money for themselves. In democratic Athens, many of the wealthy collaborated with hostile powers like Persia and Sparta precisely because of such fears. In republican Rome, power was concentrated in the wealthy Senate, and even the popular assemblies were graded by wealth, leaving very little political power to the poor. Fast forward two millennia, and the French Revolution, for all its high ideals, produced a series of largely inoperative constitutions that excluded all but the wealthy from ‘active’ citizenship.
Democracy only worked, first in the US and later in the UK and other countries, because the power of government to make laws – for good or for bad – was limited by the rule of law. The rule of law isn’t primarily about regulating the behaviour of ordinary citizens. It’s about regulating the behaviour of the government. For if there is one organisation in society that has the ability to inflict harm on an industrial scale, it is the government. It is nice to live in a society in which people and corporations generally obey the law, where you don’t have to be on your guard against everyone and everything all the time. But it is even more important to live in a society where you don’t have to be on your guard against your own government.
The rule of lawyers
That is why the greatest threat to the rule of law in today’s developed democracies does not come from criminals, terrorists or (gasp!) populists. It comes from lawyers. More specifically, it comes from the very top ranks of the legal profession; from the judges and jurists; from the government’s lawyers. It comes from people who think they know better, and are in a position to put their thinking into practice.
The rule of law itself is fundamentally conservative. As Churchill recognised, it retards progress by limiting the power of government to affect change. Even Magna Carta didn’t change the laws of England. It asserted that common law – the ‘law of the land’ – placed limits on the power of the monarchy. To the extent that the common law still exists in England and the UK, it should place limits on the power of judges too, and even on the power of parliament.
Elite jurists have long regarded common-law limits as undesirable, and indeed unacceptable. They prefer to find basic human rights in international treaties, in the elite consensus of the day, or in their own consciences. At the leading edge of judicial thought, an argument is emerging that the Earth itself has rights that supersede our own merely human rights. And given that the Earth can’t very well speak for itself, legal scholars foresee charging themselves with the heavy responsibility of speaking for it.
Judicial overreach is especially dangerous for democracy because jurists have arrogated to themselves the power, or at least the authority, to make their views stick. All leading jurists embrace the doctrines of judicial review (the courts have the authority to adjudicate the legality of laws) and judicial supremacy (the decisions of courts must be implemented) that assert their power over the legislative and executive functions of government, respectively. Despite the fact that these obviously self-serving doctrines were invented by the judiciary itself, the rest of society has (largely) gone along with them. And now that the UK has a Supreme Court, it faces the strange conundrum that an organisation created by an act of parliament claims the authority to tell parliament what to do.
Sumption correctly argued in his Reith Lectures that the Supreme Court’s Miller decision reaffirmed parliamentary supremacy. But he did not challenge the assumption that the Supreme Court had the right to consider the case in the first place. Yet if Brexit and Miller had occurred a decade earlier, it would have been the House of Lords adjudicating the case – and what a constitutional crisis that would have been! The Lords would surely have left it to the House of Commons to remove Theresa May from power if she overstepped her authority by invoking Article 50 without the approval of parliament. By weighing in on this issue, the Supreme Court effectively claimed the right to tell parliament how to do its job.
The fact is that judicial review and judicial supremacy are relatively new doctrines in British law. Neither the US Constitution nor the UK Constitutional Reform Act list them among the powers of the judiciary. What might be considered an oversight in 1789 can only be characterised as a subterfuge in 2005. Given that the UK was at that very moment actively debating the merits of judicial review in the context of Jackson v Attorney General (the ‘foxhunting case’), its omission from the Constitutional Reform Act seems a strange thing indeed.
In the end, the rule of law in a democracy does not mean the rule of lawyers
Judges and justices have no clearer democratic mandate to decide the constitutionality of a law than does a legislature (which has been elected to make it) or an executive (which has been elected to implement it). In one of the most successful institutional power grabs in history, jurists the world over have now gained this power simply by claiming it. The US Supreme Court only claimed it in 1803, 14 years after the ratification of the US Constitution. The European Court of Justice claimed it in 1964, 12 years after its own creation and seven years after the Treaty of Rome. And in the UK, the Law Lords started talking about judicial review in 2005, only after parliament had already voted to create an independent Supreme Court.
One must wonder what additional provisions parliament might have inserted into the Constitutional Reform Act if the country’s leading lawyers had made clear in advance their intention to claim the power to interpret the constitution – and thus for the Supreme Court to have the power to overturn the acts of the very parliament that created it.
Power to the people
If judges and justices should not be entrusted with the keys to the constitution, who should? In the aristocratic monarchy that was 13th-century England, the obvious answer was ‘the nobility’. They had both the motive and the means to keep the king to his word. England being on the whole a conservative country, the nobility (in the form of the House of Lords) remained the keepers of the constitution well into the 20th century. In a 21st-century democracy, that simply won’t do.
Who else is there? The recent recall of Conservative MP Chris Davies points the way. In the UK, only MPs can be recalled, and they can only be recalled if they have already been found guilty of misconduct. But in the US, many states allow the people to recall any elected official, including legislators, governors, and (yes) even judges, for any reason, or for no reason at all. Along with the initiative (people-initiated legislation) and the referendum (popular votes on government legislation), the recall was one of the key progressive demands of America’s 19th-century populists. Taken together, initiative, referendum and recall ensure that people remain sovereign in their own democracies.
History has demonstrated that it is a bad idea to let an open-air assembly of hot, hungry men vote on whether or not to authorise a few executions before breaking for dinner. But if democracy is to be anything other than an empty word, it must be a good idea to refer constitutional questions to the electorate. If a dedicated group of citizens believe that the law as it exists is constitutionally in the wrong, they can propose changes (initiative). If the government is uncertain about the constitutionality of a law it wants to promulgate, it can put it up for a popular vote (referendum). And if enough people believe that their representatives are overstepping their authority, they can vote to remove them from office (recall).
It all comes down to the question of sovereignty. If the people are not sovereign, do not call it a democracy. If the people are sovereign, then the people should have the final say.
In the end, the rule of law in a democracy does not mean the rule of lawyers. It doesn’t even mean the rule of politicians. It means that ‘the people should rule, continuously rule, and that public opinion… should shape, guide, and control the actions of Ministers who are their servants and not their masters’. In the English monarchy of Magna Carta, it was King John who had to be made subject to the rule of law. Today, it is parliament and the courts. Parliament is pretty well kept in line by regular elections, but the courts are another matter. Most of us are willing to be governed by the rule of law, but who is to govern the lawyers? In a democracy, the only possible answer is: we, the people.
Salvatore Babones is an associate professor of sociology at the University of Sydney, and the author of The New Authoritarianism: Trump, Populism and the Tyranny of Experts, published by Polity Press. (Buy this book from Amazon(UK).)
Picture by: Getty Images.
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