The Exception - Not The Rule - Of Law... In Defence Of Black Lives Matter

What is the rule of law? In my opinion, it does not exist. It simply cannot exist. There are too many contradictions, too many gaps, and too many criteria that even the most utopian society could not declare itself subject to the rule of law. But to disregard it, we must first understand what it claims to be.

Nick Barber wrote that the rule of law “asks what it means to be governed by law, rather than men.” The first societies decided their own unofficial laws based on the ideas of their leaders, whereas the first civilisations decided their laws based on the ideas of their people, with the advent of agriculture 10,000 years ago. For a period of about 2 million years, hominid groups (primarily hunter-gatherers) appeared to have distributed justice based on the views of a council of elders, or often a simple individual Their laws were likely based on superstition, natural ideas of justice, and the hocus-pocus of the leaders themselves. When civilisations were developed, while brutalisation continued, justice was a broader concept of the people, and eventually not an oligarchy. Instead of individuals handing out justice on their own ideals, such as an execution for doubting the King’s religious beliefs, a lawful society will instead ask judges to interpret written law. Instead of the power of judge, jury, and executioner being in the hands of the monarch, the powers are in the hands of others, who do not use their own ideas, their own beliefs, but the words written in front of them. This is what it means to be governed by law, and not men.

Indeed, a society governed by law will inevitably mean no one is above the law, as Bracton says: “The King shall not be subject to men, but to God and the law: since law makes the King.” No matter who writes the law, be they dictators or legislators, everyone must be subject to the law for a society to be governed by it. In English law, the Magna Carta and the Bill of Rights affirmed that the monarchy was subject to the rule of law, because they forced the monarch to govern through Parliament, rather than through royal decree. Similarly, the case of Entick v Carrington decided that even the royal prerogative – those powers exercised by the Prime Minister in the name of the Crown – are subject to the rule of law.

There are, however, two main ideas interpreting this: the ‘thin’ conception, and the ‘thick’ conception.

The thin conception, espoused primarily by Raz, makes no demand for the presence of human rights. Among his criteria for a society under the rule of law are the principles that laws should not change too frequently, the judiciary should be independent, and the courts should be accessible. Raz says that we should not confuse the rule of law with things that we would like to see our governments do. Under Raz’s theory, Nazi Germany was a society governed by the rule of law. The Reichstag, in passing the Enabling Act, afforded Hitler numerous extensive powers and permitted the Holocaust, invasions of neighbouring countries, and the indoctrination of judges, teachers, and civilians. All sane people undoubtedly agree that Hitler’s policies were, at the very least, not moral policies, but they were lawful policies. For Raz, that is enough: Nazi Germany was governed by the rule of law.

The thick conception, proposed by Fuller, Dworkin, and others, demands the presence of human rights in a lawful society. Fuller, while setting out very similar criteria to Raz, stated that law does not exist in a vacuum: it must be moral to be good law. He says the purpose of the law is to serve justice, provide social order, and allow for human advancement; the law is inherently moral, and therefore immoral laws are impossible under the rule of law. Some theorists, such as Barber, go further and require a minimum level of education or material well-being, so that not only are people governed by moral law, but they can understand it, and pursue justice under it. Dworkin, widely regarded as the expert on the matter, argues that judges have a duty to interpret the law in line with human rights, and so if a law blatantly abuses these human rights, such a law will be ignored by the courts.

These two theories both agree on two important concepts: for a law to be regarded as being under the rule of law, it must apply to people equally, and it must be enforced by the correct authorities.

This is where the theory of the rule of law falls apart.

As Fuller says: law does not exist in a vacuum. We must take into account the context in which that law is made and applied. British history is crowded with acts of mass brutality, genocide, and worse. From the religious persecutions under Henry VIII, Mary I, and Elizabeth I to the creation of concentration camps under the Marquess of Salisbury, to genocide committed by Winston Churchill in the British Empire. Our laws have been written and re-written to allow for these atrocities to go ahead, and those responsible to avoid repercussions. It was only in 2015 that the government stopped paying slave-owners compensation for the emancipation of slaves in 1833. Slave-owners were not tried, convicted, and punished for their abhorrent crimes against humanity, but instead compensated for their lost property by a legal system who has, undoubtedly, time and time again reduced minorities to nothing.

Despite the passage of the Equality Act, the Race Relations Act, the Sex Discrimination Act, and more throughout the 20^th and the 21^st centuries, laws still exist on the British statute book that create and permit glaring inequalities, and more are created in every Parliament. It is not merely a failure to create new law that pushes such discrimination, but the absence of concerted efforts to repeal bad law. The Gender Recognition Act is widely regarded by the transgender community as outdated and ineffective, and females still cannot be convicted of rape, to give just two examples.

Under the thin conception of the rule of law, these statutes are permissible. Our government is, according to Raz, operating well within the confines of civility.

However, law must be applied to everyone equally, and without the arbitrary exercise of power. It is an undeniable fact that minority populations, particularly black Britons, are massively overrepresented in arrest rates and prison populations. These laws are not being enforced equally, when there is no substantial evidence that black people commit more crimes than white people. Indeed, a 2005 study by the Home Office found that white people were more likely to have committed a crime, and a further 2009 study found no racial factors in the prevalence of criminal acts, anti-social behaviour, or drug abuse. Black people, and other minority groups, are no more likely to have committed crimes than white people, but are 10x more likely to be stopped and searched, 3x more likely to be arrested, and 2x as likely to be denied bail, all while serving comparatively longer prison sentences than their white counterparts, and dying in custody at a much higher rate.

The facts, provided by our own government, give us one important conclusion: the law is not applied to everyone equally, and therefore the British government is not abiding by the rule of law, but rather contravening it.

This brings us to the matter of protests. People, predominantly of colour, but joined by many white individuals too, are protesting the racial inequalities prevalent in modern British society, namely in the criminal justice system. Black people are more than twice as likely to die from police restraint than white people, and this isn’t down to biology: it’s down to police brutality.

We have already seen how the British legal system was constructed to oppress minority groups, including people of colour, and how police forces often arbitrarily mete out justice to these minorities. They do so both within the confines of the legal system, but also outside. In essence, they commit murder. For a society to be governed by the rule of law, not only must the law apply equally to all people, but the powers afforded to the government must not be exercised arbitrarily.

The judiciary provides a powerful counterbalance to arbitrary exercise of government power. As was seen in the Miller (No 2) prorogation case in late 2019, the Supreme Court of the UK is extraordinarily powerful in preventing the government from abusing its power. But the judiciary has one important limit: it is a purely reactionary body. Cases have to be brought before the court in order for the counterbalance to be imposed, and, when groups are disenfranchised, their ability to bring cases before a judge are severely hampered. Through the devastating cuts to legal aid, the dearth of wealth in minority communities, and the victimisation of people of colour, minority groups are increasingly unable to bring claims against the government, with its vast resources, and win. Furthermore, the doctrine of standing also prevents many cases from being brought before the courts by those who might have the resources, but lack the individual damage. The case of Fleet Street Casuals permitted any “public-spirited taxpayer” to bring an action to vindicate the rule of law, but this was promptly narrowed in the Rose Theatre case and the Pergau Dam case. This means that wealthy minorities cannot bring actions against the government for crimes committed against poor minorities, thereby depriving a massive swathe of people of access to justice.

The main concern that is heard when dealing with the current Black Lives Matter protests in the UK is its inherent illegality when coupled with the threat of coronavirus. Large gatherings have been banned by the government to prevent the spread of COVID-19, and a protest is inevitably a large gathering. However, black people are also 2x more likely to be fined by the police for violating lockdown rules, when there is no clear difference in the propensity of different minorities in actually breaking these rules. Once again, the law is being applied in an unequal way, and the powers are being exercised arbitrarily to further the racial biases, not of the police officers themselves, but the institution of the police as a whole. Genuine concerns have been raised about the risk of protesters transmitting the virus, particularly given the vulnerability of ethnic minorities to more severe cases, but these concerns are heavily outweighed by the necessity of the act of protest.

Never once has there been legal change without protest, and these protests came during immensely challenging periods in our past, from the English Civil War, which started as a protest against an unruly monarchy, to protests against the Iraq War.

These protesters are breaking the law by protesting, just as the white supremacist protesters are doing also, but there is one crucial difference in how the law must perceive these: the white supremacists are protected by the law, they are governed by the rule of law, black people are not. The rule of law in England only applies, through the actions of our government to the statutes in the book, to white people, as these are the only people to whom it applies equally and without arbitrary exercise of power. The Black Lives Matter protesters, through gathering in large numbers to tearing down statues of slavers, are not operating outside the rule of law, because there simply is no rule of law that can be applied to them.

By depriving them of recourse to the courts through the narrow doctrine of standing, the absence of legal aid, and the wider effects of systemic racism, the United Kingdom has consciously denied the rule of law to minority groups, black people in particular. Their protests are outside the letter of the law, but actually are one of the only ways they can receive the protection of the law. Whilst concerns about COVID outbreaks are valid, the concerns of decades of systemic disenfranchisement, degradation and abuse is far more deadly, and has far more legal consequences.

This essay has sought to argue that, not only are the Black Lives Matter protests in London valid, but they are entirely necessary for establishing a rule of law in our country, something we have lived for far too long without.

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