The Rule of Law was given its capital letters in the nineteenth century by Professor Dicey, who identified it as requiring legal authority for any actions by officials attempting to interfere with the freedom of citizens. No-one was to be punished ~ to suffer in person or land or goods ~ except after a fair trial before impartial courts of law for a clearly-defined wrong. In the Latin phrase, nulla poena sine lege ~ there was to be no punishment without a law to authorise it. And they were to be clear and definite laws ~ nothing as vague as, say, ‘crimes prejudicial to the state’. Only a minimum of discretion could be allowed to officials. We were to be ruled by law, not by other people’s discretion and whim.
These are all very sensible ideas, and they simply have to lie at the heart of any legal system that places any value upon human freedom. If officials ~ Ministers of the Crown or judges, policemen or dog control officers, anyone ~ were able to punish us without just and clearly-defined cause; if officials were able to use their own discretion in administering the law ~ then to that extent we simply would not be a free people.
Dicey ~ writing, of course, a century and more ago ~ believed that England, above all, displayed these characteristics. He would be very sad and surprised about what England has become since.
The amount of discretion given to numerous officials under New Zealand law is also dispiriting. Discretion is of course an open invitation to corruption. The Resource Management Act again, for a start. There is legal corruption, of course, as well as the illegal sort, and it may be hard to draw a precise line sometimes.
It would be fair to say, though, that laws can conform to Dicey’s description and yet still be very oppressive. Laws can be clear, and administered without discretion, but still be very harsh. And so, perhaps inevitably, more recent writers have tried to give the Rule of Law a bit of substance. In so doing, though, they have, again perhaps inevitably, hijacked the idea in their own desired direction, so that it can now be claimed to necessitate whatever political programme the author supports. As already mentioned, judges of our very own Supreme Court now insist that the Rule of Law involves the ongoing process of ‘decolonisation’ ~ and since the Rule of Law is so self-evidently a Good Thing, then obviously decolonisation has to be good too. Q. E. D. No further evidence is required!
Certainly, the Rule of Law is one of those concepts which becomes more nebulous as one seeks to come to grips with it. But it would be better to understand it as simply the long tradition of a settled and law-abiding community. It certainly involves respect for legal authority and legal processes; but that respect will have been earned over a long period. It must also, therefore, involve respect on the part of those who have authority for the just and reasonable limits of their authority. It is like so much else, a bargain. Nothing is free. The Rule of Law is more than just the idea that some people make laws and other people obey them. That is no more than the ‘principle’ that we have to do as we are told. The New Zealand legal system, like that of England, has as its underlying principle the idea of parliamentary supremacy ~ the idea that parliament is supreme, and can do whatever it likes. This is a good idea in many ways ~ it is certainly better than the idea that judges ought to be in charge. But that principle has been tolerable, and has become established, precisely because Parliaments have chosen, wisely, not to exceed the bounds of reasonable and acceptable behaviour. We respect the law because the law respects us.
That agreement is breaking down. Judges increasingly foist their own political agendas on us. The widespread attempts by government agencies to suppress opinions not in tune with our official state ideology provide abundant evidence that those in charge now simply cannot trust the people to think the correct thoughts. And if we cannot be trusted to think correctly, of course, it surely follows that we cannot be trusted to vote correctly. Why should the state stop at censorship, then? If the state is right and we are wrong...well, anything is justifiable in the name of rightness, surely....
Increasingly, such seems to be the attitude of European, and British, and American governments. It is quite fair for us to assume that the same forces are at work here ~ that where other countries go today, we may go tomorrow. We must be very grateful to splendid organisations such as Hobson’s Pledge and the Free Speech Union. More strength to their arm! Perhaps we will survive as a lonely beacon of freedom and common sense. But the battle is ongoing. The price of liberty is eternal vigilance.
In the last decade or so a ‘sovereign citizen’ movement has arisen in the United States, and is beginning to surface here. According to the very unsympathetic article on the subject in Wikipaedia, ‘sovereign citizens have a pseudo-legal belief system based on misinterpretations of common law, and claim not to be subject to any government statutes unless they consent to them.’ (This was, incidentally, an ancient, although long obsolete, legal principle ~ St Hugh of Lincoln, in the twelfth century, considered himself free of any obligation to pay taxes over and above the ancient established levies unless he himself had consented to them.) It cannot be denied that the sovereign citizen movement has been a justification for some very dubious behaviour, although many of its ‘crimes’ ~ the evasion of taxes and regulations ~ spring naturally from its founding principles. Before we mock too much, though, we might recall the much-praised Henry David Thoreau, widely applauded for refusing to pay tax in protest against the United States’ government’s complicity in slavery and its unjust war with Mexico. It was his consequent imprisonment (admittedly, only for one night, before a well-wisher paid the levy for him) that prompted his famous Essay on Civil Disobedience. Civil disobedience is a large topic best left for another time; but we tend to approve of Thoreau and his high principles. Would any of us actually maintain that we are under some sort of duty to obey absolutely and at all times every single existing law, down to its last jot and tittle? I suspect not. To mention an extreme example, the defence of just ‘following lawful orders’ was not successful at the Nuremburg war trials. And after all, what about New Zealand’s own fine tradition of protest? The Springbok Tour.....Surely it cannot now be the official ideology of this country that citizens have no right at all to protest against laws or government actions they think to be unjustified? When a Labour Minister of the Crown described anti-vaccination protesters at Parliament as a ‘river of filth’, that was surely just a personal opinion, if one widely held among members of the Cabinet.....?
Moreover, if we are under some duty of absolute obedience, then of course we are entitled to ask how that duty arises. To say merely that ‘we have to obey the law because it is the law’ is a very circular argument.
So most of us, I think, would be prepared to concede in principle that there does come a point when we are no longer under any compulsion to obey laws. We may never have thought much about the question; we may have no arguments beyond a vague feeling; we may recognise that the question is full of nuance and serious practical implications. Physical resistance to laws is a good servant but a bad master. But if we accept that there are, somewhere, some limits to the authority of governments over us, then I do not think we should be too harsh about the sovereign citizen movement. By established law, its views are nonsensical; but they do express a healthy instinct. They are also, surely, a sign that public patience ~ ‘social cohesion’ ~ is beginning to fray.
They say that two things threaten the world. One of them is Disorder. The other is...Order.
David Round, a sixth generation South Islander and committed conservationist, is an author, a constitutional and Treaty expert, and a former law lecturer at the University of Canterbury.
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