Features Australia

Attacking the rule of law

25 March 2017

9:00 AM

25 March 2017

9:00 AM

The rule of law has been a trending topic this year, both in Australia and overseas. Much of the discussion has revolved around Donald Trump and whether the rule of law can survive his presidency.

It began in early February when the President expressed his frustration with the close scrutiny by the appeals court of his US travel ban on seven Muslim countries.

‘Courts,’ said Trump, closing his eyes and sighing dramatically, ‘seem to be so political.’

This statement prompted a torrent of outrage on social media and long tirades in the media. The President was ‘throwing a tantrum against the rule of law,’ one news website warned. He was ‘breaking down the legal system,’ cried another.

Last week, the President again blasted the courts, this time when a judge in Hawaii blocked a revised edition of the travel ban. He called the decision ‘a terrible ruling’ and an example of ‘unprecedented judicial overreach.’

Cue the heightened reaction, the frenzied warnings of the coming autocracy.

But questioning the validity of the legal system is not just a tendency of the new administration in Washington. The legitimacy of law – both statutory and common law – is under attack in all Western countries, including Australia. And the attacks are coming from all sides – from ordinary people and public figures, both sides of the political spectrum, even lawyers and judges themselves.

It is an extension of the guiding spirit of the times – the relativising of all opinions and judgements, the defiant collective cry that ‘no one can tell us what to do!’

We see it when young offenders abuse magistrates, when the accused refuses to stand for a judge, when the media heaps scorn on legal figures and Royal Commissioners, and when sitting judges reject judicial appointments. We see it when critics misinterpret the finality of court decisions, thinking they are simply one version of the law, one way of looking at things.

It’s not a great step from this relativism to questioning any and every law. And right on cue, we have Sally McManus, the new head of Australia’s union movement, who, in a brazen introductory interview on the ABC explained that she only believed in the rule of law ‘when the law is fair and the law is right.’

The opposition leader, Bill Shorten, had no choice but to reject this line of attack, pledging his faith in the rule of law and the democratic process. But McManus had enough support to stand by her claim, enough people happy to justify her rejection of the rule of law.

‘Good on her,’ said Greens leader, Richard Di Natale. The new ACTU secretary was simply following a ‘long tradition in this country and many countries,’ explained editor of Guardian Australia Lenore Taylor on the ABC’s Insiders. Not unlike the ‘conscientious objectors to Vietnam War,’ added the host, Barrie Cassidy, helpfully.

It seems that the rule of law is only sacred when it is attacked by your enemies, and not by your friends.

The remarks by McManus, and the rationalisations offered by her supporters, are shallow and self-serving. But each one is also a small stone hurled at the legitimacy of our legal institutions.

Once we lose sight of the foundational purpose of the legal system, the order and protection that is imposed by legal certainty is threatened. Many experienced jurists believe that the rot has already begun, and that the legal system is in irreversible decline.

We attack the law at our peril, but we also do so in ignorance. In peaceful Western societies, the rule of law is so entrenched and so effective that we believe that peace is natural, that human relations are inherently cordial, and that violence is the exception.

We have forgotten that the rule of law exists to make a final ruling on events, to restrict the exercise of arbitrary power, and to circumvent the cycle of retribution and violence. In earlier societies, the threat of violence was better understood, because episodes of uncontrolled violence were closer in time and memory.

But even in the West, our popular culture reveals a subconscious understanding of the true nature of human relations. Francis Ford Coppola’s Godfather film trilogy is a prime example of this. Coppola depicts a violent world, whose inhabitants recognise that uncontrolled, contagious violence is only a moment away. Thus, when a man is killed, so too are his male heirs and relatives, and anyone else who might harbour resentful thoughts.

The propensity for violence to spiral out of control is also evident in any number of contemporary conflicts in the modern world. Think of the way that violent incidents escalate between groups such as the Israelis and the Palestinians – an Israeli is kidnapped, Palestinians are arrested, someone is killed, three more die in retaliation, a car is driven into a market, soldiers are deployed, and so on.

In earlier periods of human history, the power to decide was granted to tribal chiefs or royal figures. Our modern, sophisticated system has attempted to remove the arbitrary nature of this power, and to create a system that is measured, predictable and procedural. This hierarchical structure is an absolute value of any functioning legal system

Even Donald Trump, for all his faults, recognises this in his statement about the Hawaiian ruling. ‘We’re going to take this as far as we need to,’ he said, ‘right up to the Supreme Court.’

Trump has made a wobbly declaration that he will not ‘call a court biased’. The President’s real test will come when the Supreme Court rules against him – an unlikely outcome in this case, according to many legal experts including Harvard law professor, Alan Dershowitz.

So the breathless claims that Trump refuses to acknowledge the rule of law are premature. The same cannot be said about the many public figures and political commentators in Australia, who have failed to understand that once we grant ourselves the right to individually decide which laws are fair and right, we attack the foundations of our social stability.

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