On the dangerous dishonesty of Rule of Law

With an outbreak of interest in and ignorance of two legal precepts, Rule of Law and the 1500-year-old lex iniusta non est lex an unjust law is no law at all, here is a bit of background on origins, authors, influences, and adherents.

The bones of the debate are this: the highest placed union leader in Australia, Sally McManus, was asked by Leigh Sales on 730 (ABC1) if she “believes” in the Rule of Law. McManus based her reply on the natural law philosophy that laws must have a moral dimension and a relationship to justice – and ought not cause injustices.

Over the years, philosophers have disagreed on the correct response to an unjust law, and have attempted to codify types of injustice. Do we leave the state which makes unjust laws for a more just society which does not? Do we obey the unjust law for the sake of some greater social good, such as stable government? Is an unjust law nullified by its unjustness, is it neither valid nor authoritative, because it does not meet an essential criterion for being a law? Are we justified in disobeying this unjust command which is not a law? Are we morally obliged to resist the command that is not a law?

Surely participating in and contributing to injustice is an objective moral wrong?

It will surprise nobody that these nuances were lost in the ensuing debate, which has (rightly) been overshadowed by the strategically brilliant and intelligently articulated reply from South Australian Premier Jay Weatherill to yet another poorly-conceived federal government thought bubble on energy supply.

But as I was writing a jurisprudence lecture on Aquinas and friends today anyway, I decided to post an explainer on the debate, and the origins of its false assumptions.

The incoherence of conservatism, then and now

Despite their fondness for identifying longevity with authority – the longer a principle has been around, and survived, and invoked through the ages, the greater legitimacy it carries – conservative thinkers reacted to McManus with predictable clickery and conformity.

Like most conservative incoherence, these people reject identity politics, yet judge a clear statement of principle not on what is said but who is saying it. So when McManus says that unjust laws can and should and will be challenged, your local conservative reporter frames her sentiment as imminent anarchy. This is despite the fact that McManus is drawing on an ancient (in European years) tradition found in the works of Augustine, Aquinas and Locke, works which provided the rationale for the American War of Independence, ideas which inspired Martin Luther King.

In contrast, when laws which do not suit the conservative agenda are challenged – such as the mining industry campaign against a perfectly sensible and just attempt to establish some kind of sovereign wealth mechanism – the ‘news’ is merely ‘reported’. As though vested advertising from the mining industry is impartial and reasonable, rather than an affront to principles of equality, democracy, and justice.

Following the 730 interview, prominent voices and high traffic sites – Buzzfeed, Fairfax, the ABC – immediately started peddling the angle that challenging unjust laws is some kind of unprecedented call to arms. In fact, it was the top union leader in the country sensibly discussing workplace safety and the human cost of employer negligence that sees human beings killed on construction sites. (And shout out to Crikey, who lined up left of Buzzfeed, and to Guardian journalist Paul Karp, who took on two Fairfax heavyweights.)

Workplace safety and union solidarity sit squarely within the remit of Sally McManus’ job description. A philosophy that rejects unjust laws also lies squarely within her expertise. Yet she does not enjoy the faux-neutral reportage – acceptance – that is enjoyed by the mining industry, for example, or the passing of profoundly anti-democratic laws by conservative governments. These laws are specifically designed to safeguard mining industry interests; and massively increase fines and maximum custodial sentences for protestors. Additional laws dramatically reduced the maximum penalties for toxic spills and other forms of destruction of country caused by big mining.

Conservative commentators could draw the most rudimentary and relevant comparisons between huge fines for striking unions and insultingly small penalties for employers who create conditions which kill workers. The edgy performative crew of political writers and editors could read a book, or google, before tweeting out ahistoric ignorance (and clumsily walking it back, complete with auto-correct error). But they do not.

Their hegemonic response relies on Hobbesian authoritarianism, which is coded into all Australian Constitutions. This tradition says the lead task of the political leadership is ‘peace, order and good government’. While the US chose Lockean revolutionism to throw off English colonial rule, Australia chose Hobbesean order. We are not the loveable anti-authoritarian larrikins we like to think. We still have a foreign national as our head of state.

Both Hobbes (1588-1679) and Locke (1632-1704) were deeply influenced by the English civil war from which the version of liberal democracy that is practiced here sprang. This model relies on the doctrine of separation of powers for power-sharing arrangements across the executive, the parliament, and the judiciary. Those fighting for a sovereign parliament – where sovereignty is the legitimate authority to make laws governing over a population in a defined territory – prevailed over the absolute monarchy that preceded it.

Theology and theory for population control by church and state

Social contract theory thus has its origins in a period of turmoil and bloodshed, of the English people rising up against tyranny. It was also an age of secularisation and the declining influence of the church as the lead source of moral authority. The theory proposes that citizens are born into a social contract with the state. The social contract replaced original sin as the prevailing belief system imposed on new born babies by members of the ruling classes, the academy, and the judiciary – none of whom ever gave birth to a baby.

If Rule of Law is closely associated with the social contract, original sin was a favourite fetish of Augustine of Hippo (354-430). The earliest coinage of lex iniusta non est lex is attributed to this famously sexually confused man of god, a man who rejected the pleas of Pelagians seeking refuge from the fall of Rome. The ‘reason’ was that Pelagius rejected the Augustinian cult of baptism.

It is beyond me (as it was Pelagius) how anyone could hold a new-born baby and think ah yes, so sinful, best get a self-hating turned-celibate man to half-drown the wee one before she can grow into a professed christian who refuses asylum to refugees fleeing imperial violence. Augustine thought it necessary to cleanse new-borns of the taint of the fall in the Garden of Eden. This kooky nonsense prevailed over the sensible and obvious truths of the innocence and blessings, the beauty and joy, of a living, breathing baby.

Aquinas (1225-1274) came along around 800 years later. He, too, made his name by theorising the norms imposed by a patriarchal and cruel church on the most precious and demanding (and life-threatening) imperative of humankind: birthing new humans. In a common technique, Aquinas looked to the works of Augustine, and re-interpreted that with which he did not agree.

He also christianised the philosophy of Aristotle, and retrospectively justified the rampant slaughter of Muslims that was the Crusades. For this immensely immoral rationalisation of the seemingly endless violence of the christian west, Aquinas was canonised by Pope John XXII in 1323. His jurisprudence continues to be taught today as a reformist and enlightened force for good (an altogether different take is taught in my classes). His Summa Theologica is quite literally part of the western canon.

Because the men who theorised our relationships with church and state were confused and deluded, the contemporary discourses which draw on their legacy also tend toward a confused babble of mostly conservative white blokes bickering over how best to govern (regulate/control) various sectors of the population.

There is nothing new under the sun, as my grandmother was fond of quoting from Ecclesiastes, a book which, fittingly, also gave us vanity of vanities, all is vanity! For the enthusiasm of some journalists to happily make themselves the story is not only an exercise in vanity, it is in breach of first principles of their own profession.

Rule of Law, in the news and in real life

Speaking of first principles, the Rule of Law is one. Do you believe in the Rule of Law? is a question by and for simpletons, which does not (or should not) fit any description of a host or guest on the national broadcaster. It is tacky gotcha journalism, it is joining the outrage machine, it is creating and participating in manufactured controversy. This is dismaying at best coming from 730 and the ABC. It shows bad faith, and displays zero intention for a nuanced and meaningful dialogue which will educate rather than divide an already divided populace.

The interview was immediately and, I suspect, unspontaneously disseminated across social media by journalist colleagues with significant followings. The posts gave every impression of their authors being on notice to make the 730 program the story. The technique is getting old: tried and tested at QandA, and to a lesser extent on The Drum, it seems 730 and Insiders have boarded the clickbait bus – which (I hope) is in decline.

Meanwhile, the robust defence of Rule of Law from conservative quarters came with deep ignorance of its content, origins, meaning, and status. If there is an upside to this embarrassing clamour, it is that people with a clue will be invited to speak clearly on the biggest lie of common law legal systems. The claim that all are equal before the law; and no-one is above the law is not true, and was never true. Maybe we will get to learn about this in the wake of McManus’ comments.

The noble idea of equality before the law – symbolised by a blindfolded Lady Justice – is what lawyers call the content of the Rule of Law. It travels alongside its blue blood cousin, which describes democracy as a government of laws and not of men. Both principles perpetuate mythologies of objectivity, neutrality, and impartiality to which conservatives earnestly subscribe. White law tends to look impartial to white people. But neither principle bears up under the most cursory, let alone critical, scrutiny.

Our jail populations reveal the truth of a violent and racist patriarchal state: a government of propertied white men, for propertied men, by propertied white men. Our jails are full of Aboriginal people, of poor people, of illiterate people and people with intellectual disabilities and mental illness, people who are survivors of child sexual assault.

You will not find Rule of Law in the Commonwealth of Australia Constitution Act 1900 (Imp), the authorising legal instrument for the creation of the federated nation. That is because Rule of Law is not a law. It is a foundational principle of the common law, and the common law is a product of the class-riddled imperial mind set of upper-class Englishmen.

These same people traversed the globe, slaughtering whole populations, claiming ownership of vast tracts of land, plundering the resources of territories which were sustainably managed for millennia. Backed by military force, they attacked the institutions and traditions of First Peoples, of Indigenous governance and learning, spirituality, and law-making – and then told them everyone is equal before the law.

All this was also backed by the soft power of theory and principle, of tropes and lies like Rule of Law, produced by the complacent and comfortable men of god and state and the academy.

Their descendants, and direct beneficiaries, are a dominant minority to this day. A demographic elite who overwhelmingly constitute the executive (highest decision-making power and authority) of every institution in our society: private and public, government and political parties, corporations and industry, universities and religions and the fourth estate. This lot are still out in force promulgating the lies and violence of yesteryear. Like their forefathers, they deploy positional privilege to belittle and oppress those who speak truth to, and challenge, and make visible, inherited and unmerited power.

This is not some social media storm in a teacup. Aboriginal people killed in custody and workers killed on construction sites are real people, in life and in death. And if there is one thing every culture treats seriously, it is the taking of the life of a fellow human being. But in our culture, not all humans are seen as fully human by the dominant group. It is members of this group who ensure that when it comes to the errors and horrors of their own, there is still nothing new under the sun.

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