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 editor of LookAheadnews.com

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1 Comment on "Observations of an Expat: The Law"

  1. The strength of the law book of any system like ours is that although it is written politically, it is rewritten continuously by practical experience, often not by the politicians. And, unlike dogma, it can be overturned and changed as we realise how stupid we have been, for instance with the abandonment of anti-gay laws.

    The weakness is that although there are good reasons to trust the printed word of the law, trusting those who practice the law is more awkward.

    Our society has a long history of division, of “us and them”, and although the division is far, far less clear or abhorrent than it was in the 19th century, it is still there, at least in the eyes of those who would use it for their own purposes.

    It should not matter what part of society a judge hails from, but when the majority of the judiciary come from similar backgrounds or at least are perceived to, then trust in the process is going to be very hard to win.

    A mistake we make sometimes is attaching “a character” to a process, in this case, a judge. More sensible would be a panel where legal authority and guidance is represented but the overall nature of the panel is broader. The committees in Parliament work well in this way, though I would not wish to see something so big.

    In the long term, the real answer is to make sure that the upper hierarchy of society is drawn from all sections of society, but that means that not only does that have to be accessible to all, but all are encouraged to apply.

    If the non-elected parts of our governance and law, judges, police chiefs, senior civil servants and so on, really do represent fully our population, then it becomes far more difficult to accuse them of being out-of-touch or anti the will of the people, whether that accusation is fired by understandably angry citizens or politically charged aggression from the press.

    Mind you, I am not confident that we will ever get there or how we get there from here.

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