Unravelling the Rule of Law

Anyone old enough to remember the Cold War will have winced to hear terrorist murderers of soldiers and policemen in Northern Ireland described on the BBC last month as “dissident republicans”. To dignify the thugs of the “Real” and “Continuity” IRA with the name of dissident is to insult Sakharov, Solzhenitsyn, Sharansky, Bukovsky and countless others who were the real heroes of the Soviet Union. Yet every other media outlet followed the BBC’s lead, just as they follow the practice of treating Hamas and Hizbollah as “resistance” movements, or describing al-Qaeda and Taliban killers as “militants” and “insurgents”. The term “terrorist” is now used mainly in the abstract, seldom of individuals and never in connection with Islam.

Yet the media are not the sole or even chief culprits. Just as the government is rapidly debasing the currency, so it is debasing the language of public discourse – in both cases to postpone the day of reckoning with the electorate. The chilling phrase used by the Deputy Leader of the Labour Party was “the court of public opinion”, which she explicitly contrasted with the rule of law. Now, the Rt Hon Harriet Harman QC MP knows all about the law. She comes from a family of lawyers. She made her name as a civil liberties activist. She was Britain’s first female Solicitor-General, Minister of Justice and now Leader of the House of Commons. Yet she did not blush to threaten to confiscate the pension that had been negotiated with Sir Fred Goodwin, the former chief executive of the Royal Bank of Scotland. “It might be enforceable in a court of law, this contract,” she said, “but it is not enforceable in the court of public opinion and that is where the government steps in.”

The idea of a people’s court dispensing with the rule of law goes back to Robespierre’s Committee of Public Safety, but even more than the Jacobins, Ms Harman’s words echo the Bolsheviks. Lenin was the first dictator in history to abolish an entire legal system. Nikolai Krylenko, the public prosecutor entrusted by Lenin with creating Revolutionary Tribunals and People’s Courts, regarded “bourgeois law” and “bourgeois justice” as bulwarks of private property. According to Krylenko, the abolition of private property would “destroy in embryo” the “psychological emotions” that produced crime. No property, no law; no law, no crime. In practice, this was a formula for totalitarianism, because the rule of law is the citizen’s last line of defence against the state. A state without property rights and the rule of law proved to be a state in which millions could be arbitrarily proscribed and exterminated on the basis of class, religion or ethnicity. “We must execute not only the guilty,” Krylenko declared in 1918. “Execution of the innocent will impress the masses even more.”

Commissar Krylenko would have been proud of Harriet Harman, but she is by no means the most eminent figure to have undermined the common law tradition. The former Lord Chief Justice, Lord Phillips, and the Archbishop of Canterbury, Rowan Williams, have both defended the informal sharia courts that now operate throughout Britain and which threaten to create enclaves where not all citizens are equal before the law. The Real IRA has rudely reminded us that the rule of law, which was never fully re-established in Northern Ireland, is a seamless garment: no-go areas for “the British state” ensure that terror eventually re-emerges as a threat to society as a whole. The government has compromised the rule of law because it fears the violence of Irish republicans or Islamists if it were to enforce the universality of its jurisdiction. But the very idea of law unravels if some people are above it – or deprived of its protection.

Our distinguished new legal columnist, Joshua Rozenberg, will not only comment on legal affairs in general but help us to identify threats to the rule of law. There is, after all, no more fundamental pillar of Western civilisation.

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