Observations of an ex pat…The law

The British like to think they invented the law. It is true that thanks to empire and successful European wars, British law is the foundation of many of the world’s legal systems.

It is certainly the cornerstone of the American judicial system and  the old imperial countries. British lawyers rewrote the law books in Germany following World War Two and contributed heavily to the European Court of Justice with which they are currently having so many problems.

Actually, the principle that the rule of law MUST underwrite civilized societies dates back to at least ancient Egypt. It is there  where we find the first allegorical representation of the Goddess Justice holding the scales in which the rights and wrongs of a case were impartially weighed.  The Egyptians called her Anubis.

The Greeks called her Dike, and added the sword to represent the finality of legal decisions.  The Romans provided the moniker Justitia, or Justice, and the Swiss added the blindfold in the 16h century.

But the British—and by association the United States– have for centuries been the keenest exponents of what is generally termed “the rule of law.” They have argued that the laws built on centuries of parliamentary debate, court precedents, seasoned with a bucketful of common sense and administered by judges trained for their impartiality must always be above the variable winds of politics.

Representative politics represent the majority view.  The law in the form of an independent judiciary protects not only the majority but also the minority so that all of society is protected, hence the blindfold and scales.

All of this makes it surprising that Britain and America appear to be subtly undermining the rule of law and following the examples of authoritarian countries such as Russia and China in trying to subjugate the law to the political will.

The latest manifestation is the aftermath of the horrific Grenfell Tower fire. The current indications are that the fire was the result of local government and contractors saving pennies at the expense of safety. Theresa May has ordered an inquiry and appointed the respected upper crust Cambridge-educated  judge Sir Martin Moore-Bick to head it.

But Grenfell Tower was public housing. Its residents were from the poorest sections of society who have for years felt exploited by establishment figures such as Sir Martin. They don’t want him. Their acute dislike was echoed by local Labour MP Emma Coad who demanded his replacement and said: “I don’t understand how anybody like that can have any empathy for what those people have been through”

So why is Sir Martin the right person for the job? Because he is trained to be impartial and make decisions based on facts rather than empathy and social connections. Justice is blind.

The other side of the British class divide is just as guilty of bending the law to their political position, as demonstrated by the legal battles that preceded the invoking Article 50 of the EU Lisbon Treaty which was needed to start the formal Brexit process.

The Conservative government claimed that the referendum result overruled the sovereignty of parliament.  Not so said the High Court and ruled that the Brexit process could not start until after debate and vote in parliament.

The right-wing, anti-EU tabloid The Daily Mail branded the judges “Enemies of the People”. The government—which is sworn to uphold the law—remained silent for over a day before reluctantly defending the need for an impartial and independent judiciary. Even then, it spent millions appealing the decision to the Supreme Court—where it lost. The journalist who wrote the Daily Mail headline, James Slack, became Theresa May’s official spokesperson.

Donald Trump is not much better. He undermined the rule of law when he attacked the “so-called” federal judges blocking his Muslim travel ban. He did the same when he abruptly sacked 46 Obama-era federal prosec utors and again when dismissed FBI director James Comey for being too dogged in his investigation of the Russian hacking scandal.

It is often said that the law is an ass. Personally I would rather be judged by an ass than a political hack.

 

* Tom Arms is foreign editor of Liberal Democrat Voice. He also contributes to “The New World” magazine and lectures on world affairs. He is the author of “America Made in Britain,” two editions of “The Encyclopaedia of the Cold War” and “The Falklands Crisis.”

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6 Comments

  • Richard Underhill 14th Jul '17 - 9:08am

    After the fire it has been said that illegal sub-letting and illegal immigration will not be prosecuted. There is therefore doubt about how many people were in the building. It may not be possible to count or identify corpses because of the very high temperatures in the fire. The count stopped at 79/80, which is causing distrust o the police to increase.

  • It seems it is necessary to threaten legal action when dealing with any government department today.

  • The law has always existed on a spectrum running from the idealised vision of justice represented by the goddess atop the Old Bailey to an instrument of systematised oppression when the levers of power have been seized by a small clique.

    Naturally, everyone claims to support the former interpretation; in practice there is always some backsliding towards the latter which, at times, has been extreme – think medieval barons or eighteenth century slave owners. The current term of art is ‘oligarchs’.

    In general I think that keeping the rule of law tolerably close to the good end of the spectrum only happens if society has both strong cultural norms and is not too unequal. Both of these have been (and continue to be) eroded in the UK: some politicians have clearly been dazzled by the riches available for facilitating oligarchs’ interests by enabling them to sit above the law. In the US/UK this is deemed acceptable provided politicians take their payoff only *after* leaving office.

    For example, we have seen an epidemic of criminality within the banking sector which is hugely profitable for a handful but terrible for the rest of us. All the markets that the City trades – oil, gold, silver, shares, commodities etc. – are widely believed on good evidence to be “fixed” by insiders and yet no senior banker has been charged. It was once the City’s proud boast (before Thatcher’s “Big Bang” deregulation) that “my word is my bond”. Sadly no longer; customers are now seen as prey to be fleeced.

    This amounts to sawing off the branch on which we sit since a complex modern economy absolutely depends on the freedoms and level playing field provided by the rule of law. This is the lowest of low-hanging fruit yet the Lib Dems have nothing much to say (except when on the side of the oligarchs – the ISDS provisions of TTIP for instance).

    And that goes to the heart of their electoral difficulties.

  • Ed Shepherd 14th Jul '17 - 9:16pm

    British judiciary impartial, unbiased and making decisions only on the facts? A look at decades of cases and inquiries confirms that this is not true.

  • Martin Walker 15th Jul '17 - 3:14pm

    I think that it is wrong to complain that justice and an examination of the facts are being subjugated to political agendas, and then declare that “The current indications are that the fire was the result of local government and contractors saving pennies at the expense of safety” before the inquiry has even properly started. There are any number of potential causes or factors – financial, technological, managerial, contractual, and expertise – and it may well have been a combination of these. Why not wait and consider the findings that are based on the evidence?

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