In November 2017 I presented a paper at a Rule of Law conference at the Centre for the Study of International Peace and Security at the University of Westminster in London. The title of the conference was ‘Democracy and the Rule of Law: Relationships, Challenges and Conflicts’. I was presenting my further work on the security theory of the English philosopher Thomas Hobbes, 1588-1679. (For a previous summary of this theory, see: https://uclanlaw.co.uk/2017/10/23/security-from-islamist-terrorism-locke-and-hobbes-liberty-versus-tyranny/). At this conference, I was translating this theory of Hobbes into a collective right of security post 9/11, and Islamic State in Iraq and the Levant (ISIL) in particular. Unlike Sir Jeffrey Jowell (see below), the Rule of Law, for me, is not a neutral, value-free concept; it is merely a liberal construct reflecting a liberal bias within Constitutional law, which views the state as something individuals need to be protected from. I wanted to move the liberal, Rule of Law discourse away from an emphasis on individualism to considerations of collectivism, community etc.
Sir Jeffrey Jowell QC was the keynote speaker. Sir Jeffrey was a former Head of Law at University College, London (UCL), and Director of UCL’s Bingham Centre on the Rule of Law. It was an absolute privilege and an honour to hear Sir Jeffrey speak (despite our disagreements about the nature of the Rule of Law – see above). Sir Jeffrey is a legend of Constitutional Law scholarship having been responsible for writing the principal works on the Rule of Law for many years eg. ‘The Rule of Law Today’ in Jowell and Oliver, The Changing Constitution, 8th ed, 2015, Oxford University Press. The title of his keynote speech was ‘Is the Rule of Law a Universal Concept?’
Sir Jeffrey began by saying that the Rule of Law had received a bad press in recent years. Scholars such as Jeremy Waldron had described the Rule of Law as a ‘confused’ and ‘uncertain’ concept. But, for Sir Jeffrey, the Rule of Law’s continued importance was evident from the recent speech of Lord Reed in the Supreme Court in Regina (Unison) v. Lord Chancellor  UKSC 51. Here the Lord Chancellor’s raising of court fees in employment proceedings was unlawful because of the degree to which it had been a denial of access to justice.
Sir Jeffrey reminded us of one of Constitutional Law’s foremost scholars, A V Dicey. For Dicey there were two important constitutional principles in the UK: Parliamentary supremacy and the Rule of Law. The latter served as an important constraint on the former. Sir Jeffrey noted that more recently Lord Bingham had identified eight key ‘ingredients’ of the Rule of Law; of these Sir Jeffrey wanted to concentrate on four: ‘legality’; ‘certainty’; ‘equality’; and ‘access to justice’.
‘Legality’ requires that we are all under the law; it distinguishes between arbitrary power and rule through laws. It includes the settlement of disputes through law. It also means government according to law; it controls the exercise of discretionary powers and ensures that these powers are exercised for their correct purpose. It permits some governmental discretion but is a constraint on that discretion.
‘Certainty’ permits accessible laws; laws can be changed but there must be a fair warning. ‘Equality’ means that the law is enforced equally between the rich and poor. Sir Jeffrey noted that some countries in the world like China and South Africa claimed to exercise the Rule of Law. But they were ‘legalistic’, they didn’t adhere to ‘legality’; indeed they didn’t subscribe to the fourth and most important element of the Rule of Law: ‘access to justice’. ‘Access to justice’ means a fair trial before an independent judiciary.
Are these four key ingredients of the Rule of Law ‘universal’? Between 2001 and 2011 Sir Jeffrey was the UK’s member of the Council of Europe’s Commission through Law (‘the Venice Commission’) where he assisted with the constitutional and public law of a number of countries. In 2016 the Venice Commission produced a Rule of Law checklist –http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2016)007-e – which continues to be translated into a number of different languages. For Sir Jeffrey the popularity of the checklist, particularly the intention of translating it into so many languages, clearly supported the idea that the Rule of Law was indeed a universal concept.
The four Rule of Law ingredients identified by Sir Jeffrey are all ‘procedural’. I asked him if he thought the Rule of Law should have a ‘substantive’ component. He was pleased with the question. In reply, he thought that human rights such as freedom from torture, Article 3 of the ECHR; a right to liberty, Article 5 of the ECHR; and a right to fair trial, Article 6 of the ECHR, were all examples of the Rule of Law acting ‘substantively’. Indeed, he thought ‘access to justice’ had a substantive component as it allowed individuals to pursue claims of a substantive nature in court. Another question from the audience about the Rule of Law was whether Sir Jeffrey thought that it was an example of ‘natural law’ ie it was a ‘higher order’ law. To this Sir Jeffrey believed that it was; he identified with natural law. He said Lon Fuller (eg the Morality of Law, 1964) was his PhD examiner and, when he was Head of Law at UCL, he persuaded Ronald Dworkin (eg Taking Rights Seriously, 1977, and Law’s Empire, 1986) to leave the University of Oxford and join him at UCL.
There were other presenters at the conference. After Sir Jeffrey’s presentation, I particularly enjoyed the presentation of Mariya Ilyas. Mariya is a Master’s student at the Fletcher School of Law and Diplomacy at Tufts University, Boston, USA. The title of Mariya’s presentation was ‘Religion in American Democracy’. Mariya was critiquing the continued references to Christianity in American democracy, notwithstanding the separation of church and state when the new United States was first created. Examples Mariya gave included: the God-like images of the first President of the US, George Washington; the Christian references in the US ‘pledge of allegiance’ ie ‘one Nation Under God’; and the motto of the US, ‘in God We Trust’, inscribed on the back of the US One Dollar bill. Christianity also featured heavily in the Civil Rights Movement in the 1950s and 1960s, and the speeches of Dr Martin Luther King Jr in particular; as well as the terror actions of the Ku Klux Klan (KKK) in using burning crosses. God Bless America!
Dr Ian Turner
Reader in Human Rights and Security