Constitutions and the Rule of Law

Rev'd Prof Helen Hall, Nottingham Law School https://www.ntu.ac.uk/staff-profiles/law/helen-hall

via Wikicommons

In 1634 Sir Edward Coke lay dying. He was eighty-two years old and a name to conjure with in legal and political circles. During a glittering but sometimes controversial career, he had served as Chief Justice of the King’s Bench, Chief Justice of Common Pleas, Attorney General for England and Solicitor General for England. He had been entrusted with the prosecution of high-profile figures like Sir Walter Raleigh and Robert Devereux Earl of Essex (the “favourite” of Queen Elizabeth I). However, he had also been a thorn in the side of Stuart monarchs, insisting that royal power was no absolute, but limited by the Rule of Law and the Constitution. This was why as the elderly lawyer’s life ebbed away, government agents raided both his chambers and his study.

King Charles I took an active part in these events. A trunk of papers was delivered directly into the royal hands, and he opened it personally. Like so many of that monarch’s schemes, the violation of Coke’s property and papers was destinated to backfire in multiple ways. Firstly, the optics were atrocious. The intention was to demonstrate the might of kingly authority, and to suppress material attacking it. To many observers, these were not the actions of a strong leader, but the tactics of a callous bully. Worse still, in seeking to prevent Coke’s final writing from going public, the authorities advertised its importance. Like countless regimes before and since, they discovered too late that attempts to silence political speech often have the reverse effect and amplify the voices of dissent.

Many parliamentarians were not prepared to forget the incident and move on, and the House of Commons eventually forced the publication of the papers in 1641, as the country spiralled towards Civil War. Coke’s Constitutional analysis, and insistence that the Rule of Law applied to kings, fuelled the ideological engine of the Parliamentary cause. It helped to convince wavering individuals that the struggle was justified, and a vindication of legal rights, enshrined in the Magna Carta and the Common Law, rather than a self-interested struggle and rebellion against God. Challenging a king was a disturbing notion for Early Modern people, even for those with radical religious and political views. Figures like Edward Coke mattered because they provided not just moving rhetoric, but the reassurance of reasoned, legal argument.

However, to what extent did things appear this way back in 1634? It must have seemed as though the rule of law counted for very little. Coke certainly talked to his family and friends about the importance of the Magna Carta, and its guarantees of the rights of subjects. These of course include the right to a fair hearing, and protection against arbitrary confiscation of property. It must have all seemed bitterly ironic as armed men carried away documents that represented weeks of work and a lifetime of study. In a digital world with back up versions of our text available in a single click, it is easy to forget how precious and vulnerable written papers can be.

However, despite the fragility on one level, the power of ideas and values ultimately proved stronger than oppressive force. Maintaining the rule of law is always a battle, because there are social and political forces that pull in other directions. Coke was by no means the last person to have state officials rifling through his belongings in an alleged quest for seditious material. A government arranged burglary for exactly this purpose was the core of the famous Entick v Carrington decision, when the courts firmly rejected the argument that ministers could give their agents carte-blanche to break the law. In the contemporary UK, judges are tasked with balancing competing rights and considerations when confronted with a clash between the freedom of individuals and the need for the state to maintain security. Consider for instance the Belmarsh Case, in which the House of Lords ruled by majority that foreign terror suspects could not be detained indefinitely without trial.

Challenges and complexity over the rule of law are to expected, but this does not mean that we can be complacent about threats that it faces. The rule of law depends upon enough citizens in any particular jurisdiction being willing to insist on its value. Much like Peter Pan’s plea to children to clap if they believe in fairies, the collective power of belief in the rule of law is what enables it to operate at a societal level. This is very apparent in the current struggles taking place in the United States, and reaction of popular protest to unlawful detentions and killing by masked and seemingly unaccountable ICE operatives.

In short, it is at the moment when the rule of law seems to be at the greatest jeopardy, that it needs to be most forcefully asserted. Even in the 17^th century, ideas could not be erased from the collective consciousness. In our own era, we have unparallelled access to means of communication and dissemination. If we allow the rule of law to be attack, society as a whole will pay the price. The converse of this, is that we have a shared responsibility to be vigilant in protecting it.

Further Reading

A and Others v Secretary of State for the Home Department [2004] UKHL 56