Uncommon Law

“I emerged from my spell of jury service with an enhanced respect for the law; any ruler who is above the law — as EU institutions are in effect — is a tyrant”

Justice Manchester Square

In January of this year, I found out what it is like to be on a jury. Southwark Crown Court, the scene of many a famous trial, is the busiest in London. It was there, a few weeks later, that the man who until recently had been Secretary of State for Energy and Climate Change pleaded guilty to perverting the course of justice. Chris Huhne’s ignominious fall is a reminder that the rule of law requires equality before the law. The three Algerians who were convicted of robbery by the jury in which I served received exactly the same quality of justice as the former Cabinet minister. It is true that his former wife, Vicky Pryce, was badly served by the jury in her first, abortive trial. In my experience, however, the English criminal justice system works as it was meant to do. It is not meant to deal with the fallout from failed states in North Africa or elsewhere, much of which settles in London, the Mecca of the Muslim diaspora.

My jury service taught me three very important lessons about the rule of law. First, it is incompatible with relativism — whether moral, cultural or epistemological. You cannot be a juror unless you accept the distinction, written in our hearts, between good and evil, right and wrong, innocence and guilt. We may disagree about which deeds fall into which category, or whether an action that is wrong should be criminalised, or how to make the punishment fit the crime. But a jury cannot do its work unless there is general acceptance that moral absolutes are absolutely necessary.

You cannot be a juror, either, unless you accept that these moral absolutes can and must be upheld over and above cultural differences. In a court of law, “culture” in the anthropological sense of the word does not trump everything, as it often does elsewhere. Race, religion, tradition or language may figure in a plea of mitigation, but they cannot suffice as a defence to a criminal charge. Cultural relativism is anathema to the rule, or even the concept, of law.

Least of all may a juror afford to adopt a relativistic attitude to the concept of truth. You cannot do your job if you act as if all truths were “social constructions”, or dismiss the distinction between fact and opinion, or pretend that human beings are incapable of objectivity. It is right to take a properly sceptical attitude towards the witness’s solemn oath to tell the truth, the whole truth and nothing but the truth. But that is only possible if there is such a thing as truth and it may be ascertained in a given case. A court of law is no place for the nihilist who denies all values or the solipsist who creates them for himself. 

Secondly, helping the law to take its course, not merely as a spectator but as a participant, is to understand why it is so important that we be ruled impartially by law rather than by arbitrary fiat. It shows why, if we detach our legal system from its foundations in Judaeo-Christian, Graeco-Roman, Medieval, Renaissance and Enlightenment thought, we aid the enemies of Western civilisation, secular and religious, to whom the rule of law is an abomination. We must not, for example, compromise the protections that the law offers to women by devolving family law to sharia courts. Nor do we wish to repeat the experience of totalitarian states, where “bourgeois” justice gave way to people’s courts and revolutionary tribunals. In some such cases, it has proved extraordinarily difficult to rebuild respect for the rule of law. Russia and China are examples.

Thirdly, it became very clear to me in my work as a juryman that the rule of law is rooted in the nation state, not in supranational bodies such as the EU or UN. This insight is not shared by many, particularly on the Left, who see the rule of law purely as a means to a political end. The grand old man of German philosophy, Jürgen Habermas, makes the suggestion that the eurozone crisis is an opportunity “for the peoples of Europe to regain, at a European level, the sovereignty that was stolen from them by ‘the markets’ a long time ago”. To this end, he demands “a new politics of self-empowerment”, because “to abandon European unification now would be to quit the world stage for good”.

This seems to me exactly the wrong way round. It means that nations must sacrifice their traditions of law, legislation and liberty in exchange for a “place in the sun” (as Kaiser Wilhelm II would have said). The “politics of self-empowerment” means the empowering of politicians. It won’t be at the expense of the markets, but of millions who depend on them for their livelihoods. For instance, the Tobin tax on financial transactions, far from empowering “the peoples of Europe”, will actually impoverish them by driving business away from London and Frankfurt to New York and Hong Kong. “Fiscal union” means Europe is replacing democracy and the rule of law with oligarchy and the rule of bureaucrats. On the world stage, Europe cuts a pitiable figure by abandoning liberty under the law. 

I emerged from my spell of jury service with an enhanced respect for the law, if not for lawyers. Beyond the Anglosphere, the blessings of common law are actually quite uncommon; without it, the world would be a much worse place. That pioneer of constitutional monarchies and republics, John Locke, put it best in his Two Treatises of Government: “Where law ends, tyranny begins.” And any ruler who is above the law — as the EU institutions are in effect — is a tyrant.