July  2018

The rule of law that is- whatever else would I be going on about?! And it a BIG deal because the rule of law is at very heart of what makes civil society work.

Without the rule of law, we live or die at the whim and convenience of those with power. With the rule of law, there are defined rules for behaviour, and provided we live within these, have a degree of independence and security. Which, from thousands of years of hard-won gains, has become the reality for many. Not that the rule of law requires that the laws which govern our lives will be fair and reasonable- Apartheid in South Africa was fully supported by legal structures, for example. But under the rule of law there are at least some protections (as there were, however inadequately, for blacks in pre-1994 South Africa), whereas without it, tyranny and oppression have full reign. Rule by individuals may not have been too unbearable in the hunter-gatherer communities we generally lived in before the rise of cities- though jealousy, bullying, and sexual abuse were no doubt ever present, as they still are amongst remnant hunter-gatherer groups in New Guinea, and the Amazon. But the combination of hereditary, popularity, and violence by which rulers get power, didn't change much as communities scaled up. And when farming and food storage developed (from roughly 10,000 years ago), humankind coalesced into larger groups and the elites came to control vastly greater resources- while no longer being constrained to behave themselves by strong family connections. This is when tyranny and oppression really slipped the leash- like amongst the Aztecs of Tenochtitlan (now Mexico City) with their 130,000+ human sacrifice skull racks.

To counter tyranny, we have slowly developed the rule of law. Its origins go back to pre-history; codes of behaviour that became codified with the development of writing, by lawgivers such as Hamurabi, (Babylon, 1725 BC)

and , - from whom we get the term "draconian". But even draconian laws are preferable to arbitrary authority and every(?) country in the world has now signed up to the rule of law- in theory. In practice, with corruption and abuse of power widespread, many have barely a semblance of the reality as yet.

This is because while laws provide protections for citizens, they are inconvenient for rulers, who use every means they can to avoid limitations to their power. Historically, the main way they have done this is to exclude themselves and their cliques from its most basic principle: that everyone is equal in law. Kings and emperors traditionally put themselves above the law, but this privilege has been gradually chipped away, especially with the rise of representative government. Some echoes remain: In English law (which NZ follows), until quite recently citizens could not take legal action against the "Crown" (which now refers to the government rather than an actual monarch). Richard Nixon's said: "When the president does it, that means it is not illegal" (which wasn't quite true as it turned out). And China's ruling communist party carried over their exemption from a long line of emperors and have extended it even further by requiring all judges to do whatever party bosses tell them to.

But even in countries that have independent judiciaries and treat litigants tolerably equally, governments still like to have ways to shut down those pesky individuals who make trouble and embarrass them, while annoyingly remaining within legal bounds. The powerful government departments that now control our lives- sometimes characterised as the 'deep state'- have found a way to do this. Nor have our elected representatives held them back, even when they could have. I suspect departmental heads quietly convince them as to the convenience of this tool for keeping people in line. And it's not trivial, but comprehensively subverts the protections against the abuse of authority that have been gradually established since we were roaming around in family groups hunting woolly mammoths.

Here's how it works: Not special exemptions for favoured people but rather its reverse; laws selectively applied. And it's perfectly "legal"; those who are accused have all the usual legal protections; a fair trial, rights to appeal and so on. But the one defence they are not permitted is exactly the one they need; that authorities are prosecuting them, but not others who have committed the same crime. They may use this argument to mitigate their sentence, but generally not in the matter of guilt or innocence, which is determined solely by whether they have broken a law.

Rolleston road sign

Here's an example: This road sign has been erected along many roads on the outskirts of the city of Christchurch New Zealand, and particularly on popular routes to the airport. Very few drivers have ever actually ever read it, assuming erroneously that it's about restricting big truck access. It says: "no entry to vehicles under 3,500kg Monday to Sunday between 9pm and 5 am" Yes, you read it right: In effect, driving a car on these roads at night is illegal. But when relevant authorities are asked about it informally they say "Oh no, don't worry, it doesn't apply to you"- but won't be quoted on this of course. Its effect is to give police powers to stop and prosecute anyone they choose to. Everyone (or very nearly, there is an exemption for residents) who drives a car there at night is breaking the law. I doubt it's used to stop even 1 vehicle in 10,000, but if the police decide they don't like you for some reason, you'll be guilty as charged, no defence. This example is not particularly sinister, being aimed at stopping assemblies of "boy racers" who plague some of these roads. At best it's incompetent law making and shows a stunning failure to understand an essential principle of justice; that we should be ruled by law not the personal whim of those with (in this case petty) power. At worst it is a step towards the complete undermining of the rule of law. We started down this path accidentally I think; it was initially an unintended consequence of the ever-increasing number and complexity of laws that developed countries accumulate. Over centuries, every perceived problem spawns a raft of new laws, which usually don't get deleted even if the original purpose is long gone. Western countries now have so many laws that no one can ever know all of them- and a stage has quite clearly been reached when every person is breaking at least some laws all the time, usually inadvertently. This is dangerous, because when someone annoys those in authority, for example by making a complaint against a powerful official or drawing attention to lack of action against criminal gangs, they can readily find charges to threaten the complainant with, not only shutting them up but sending a message to other critics as well. A surprising number of people I talk to, personally know someone who has been targeted in this way, or have been themselves, even if only over a minor matter.

None of which matters too much in countries with shared values and common purpose (Japan for example), because the said authorities can then generally be trusted to use such arbitrary authority in the community's interest. But the Western world is entering a phase which many commentators describe as incipient civil war. At street level, the USA seems irretrievably split over Trump, the UK over Brexit and Europe over immigration, though it seems to me that at a deeper level, the division is more fundamentally about whether status should be conferred by your value as an individual or by your membership of some group- a very dangerous perversion of the traditional individual versus collective tension which we are continually striving to balance. Dangerous, because valuing people by their membership of some group and its position in a postulated victimhood hierarchy, is a descent back into tribalism, which will not make the world a better place for anyone. But I digress. When communities are at war with themselves is when the rule of law is most needed, not the time to throw it away for short term administrative convenience or partisan advantage, in ignorance of history.

Peter Lynn, Ashburton, New Zealand, July 1st 2018