Rule According to Higher Law

A conundrum is presented when the government acts in strict accordance with well-established and clearly defined legal rules and still produces a result that many observers consider unfair or unjust. Before the Civil War, for example, African Americans were systematically deprived of their freedom by carefully written codes that prescribed the rules and regulations between master and slave. Even though these slave codes were often detailed, unambiguous, and made known to the public, government enforcement of them produced negative results. Do such repugnant laws comport with the rule of law? The answer to this question depends on when and where it is asked. In some countries the political leaders assert that the rule of law has no substantive content. These leaders argue that a government may deprive its citizens of fundamental liberties so long as it does so pursuant to a duly enacted law. At the Nuremberg Trials, some of the political, military, and industrial leaders of Nazi Germany unsuccessfully advanced this argument as a defense to Allied charges that they had committed abominable crimes against European Jews and other minorities during World War II.

In other countries the political leaders assert that all written laws must conform with universal principles of morality, fairness, and justice. These leaders argue that as a necessary corollary to the axiom that “no one is above the law,” the rule of law requires that the government treat all persons equally under the law. Yet the right to equal treatment is eviscerated when the government categorically denies a minimal level of respect, dignity, and autonomy to a single class of individuals. These unwritten principles of equality, autonomy, dignity, and respect are said to transcend ordinary written laws that are enacted by government. Sometimes known as Natural law or higher law theory, such unwritten and universal principles were invoked by the Allied powers during the Nuremberg trials to overcome the defense asserted by the Nazi leaders.

The rule of law is a concept explained in classical time. In Greece Aristotel wrote that “law should be the final sovereign; and personal rule, whether it be exercised by a single person or a body of persons, should be sovereign in only those matters which law is unable, owing to the difficulty of framing general rules for all contingencies.”

In ancient Rome the Corpus Juris Civilis established a complex body of procedural and substantive rules, reflecting a strong commitment to the belief that law, not the arbitrary will of an emperor, is the appropriate vehicle for dispute resolution. In 1215 Magna Charta reined in the corrupt and whimsical rule of King John by declaring that government should not proceed except in accordance with the law of the land.

During the thirteenth century, Thomas Aquinas argued that the rule of law represents the natural order of God as ascertained through divine inspiration and human reason. In the seventeenth century, the English jurist Sir Edward Coke asserted that the “king ought to be under no man, but under God and the law.”

With regard to the legislative power in England, Coke said that “when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the Common law will control it, and adjudge such act to be void.” In the United States, Alexander Hamilton applied the rule of law to the judiciary when he argued in The Federalist, no. 78, that judges “have neither Force nor Will, but merely judgment.”

Despite its ancient history, the rule of law was not celebrated in all quarters. The nineteenth- century English philosopher Jeremy Bentham described the rule of law as “nonsense on stilts.” The twentieth century saw its share of political leaders who oppressed persons or groups without warning or reason, governing as if no such thing as the rule of law existed. For many people around the world, the rule of law is essential to freedom.

 

 

*TEXT 8     FEDERAL AND UNITARY CONSTITUTIONS

 

In a federal state such as the USA, the constitution divides power between a central federal government and separate state units in such a way that each is independent within its own sphere and neither can override the other. Federalism is therefore a way of giving effect to communitarian values by allowing diverse units to retain their distinctive identity while at the same time providing for unity where there is a common interest. Federalism also serves to reduce the risk of tyranny. A unitary state such as the UK has an overriding supreme lawmaker which can devolve power to subordinate units but is free to take the power back and to interfere with the smaller units.

Federalism is practicable where the component units have sufficient in common economically and culturally, for example a shared history or language to enable them to co-operate, while at the same time each unit is sufficiently distinctive to constitute a community in its own right. Thus a delicate balance must be struck. The United States and Australia are relatively successful federations whereas Canada, with its split between English-speaking and French-speaking regions, is less stable. Yugoslavia, with its many ethnic tensions, has been unsuccessful. It cannot be seriously suggested that federalism is the best way of achieving efficient government but efficiency cannot be the overriding purpose of a liberal society. Federalism is a mechanism for giving political rights to a wider range of group interests than is possible in a unitary system and therefore a means of resolving conflicting loyalties.

The relationship between a federal government and the state governments within it, is not, in law, one of superior and inferior, but of partnership. Each has its own sphere of activity and its own constitution and courts and it may be unlawful for one to trespass upon the other. There is a single federal citizenship and free movement within the federation. The central government typically represents the country on the international level and exercises defined functions - typically, defence and foreign affairs, currency, postal services and important commercial activities - while leaving the residual power with the states. Some versions allocate particular matters to the states leaving the federal level as the residuary power.

Where responsibilities overlap, doctrines such as “pre-emption” or the supremacy clause of the United States Constitution provide resolving mechanisms usually policed by the courts. Representatives of the states may sit in the federal legislature. In the USA the states are equally represented in the Senate, the upper House of the legislature, so as not to disadvantage the smaller states. The lower House is elected in proportion to the population of the states. In the European Union the more powerful states have greater voting power in relation to certain issues. As with any constitution, the actual disposition of power reality depends on political and economic as well as legal factors. Thus the real balance between centre and state may not be apparent from reading the constitution.

As with many political ideas, it is probably best to regard terms such as “federal” or “unitary” not as precise definitions, but as convenient points upon a political spectrum ranging from loose associations of countries for particular purposes to simple one – government states. On this spectrum the UK Constitution is close to the latter extreme and is therefore called a “unitary” constitution. The whole country is subject to the overriding power of the central government and to parliamentary supremacy. Within the UK certain powers have very recently and in varying degrees been devolved to elected assemblies in Scotland and Wales but without in any way limiting the powers of Parliament. Northern Ireland has enjoyed devolved powers in the past and legislation is in force to enable it to do so again. There are also local authorities within the UK based upon cities, counties and units within the county. Although elected and having certain tax-raising power, local authorities obtain their powers exclusively from statute, are closely regulated by central government and depend upon the central government for most of their funding.

Dicey strongly opposed federalism in the United Kingdom. This was influenced by his belief in a single centre of power. He thought that “federal government means weak government” although he qualified this by recognising that federalism might make it possible to unite communities that otherwise could not be united at all. He also thought that federalism tends to conservatism, creates divided loyalties and that it elevates legalism to a primary value, making the courts the pivot on which the constitution turns and perhaps threatening their independence.

During the late nineteenth century there were some advocates of federal UK as a way of avoiding home rule for Ireland and also proposals for a federation of the UK and some of its overseas territories. However, on the whole, federalism has not been a serious element of UK politics. The Kilbrandon Report (1973) argued against a federal constitution for the UK on the following grounds. Firstly the units are widely different in economic terms, with England being the dominant member. Any federation is therefore likely to be unbalanced. Secondly a federal regime would be contrary to the British constitutional traditions in that it would elevate the courts over political machinery. Thirdly the UK was thought to require central and flexible economic management since its resources are unevenly distributed geographically. Fourthly, apart from Northern Ireland, regional issues were not high on the agenda of the main parties, which suggested that there was little public desire for federalism.

NOTES TO THE TEXT

The Kilbrandon Report is a remarkable document. It was remarkable in its time and it still reads as a clear, fresh and enlightened document more than fifty years later. In May 1961, John Maclay, then Secretary of State for Scotland and later Lord Muirshiel, appointed a committee "to consider the provisions of the law of Scotland relating to the treatment of juvenile delinquents and juveniles in need of care or protection or beyond parental control". It was chaired by a distinguished lawyer and judge, James Shaw, Lord Kilbrandon. It contained in its membership two sheriffs, a professor of law, a solicitor, a headmaster, a chief constable, justices of the peace and a child psychiatrist.

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