“The rule of law” as a system or orderly law enforcement is clearly crucial to the functioning of any urban civilisation but individual laws are no guarantee of justice and the use of the police by a government to assert their coercive power over a disenfranchised electorate it is not “the rule of law”, it is structurally the same misuse of state power as that undertaken by Stalin, Hitler, Pinochet and the Burmese Generals. (not in terms of severity but in principle.)
The concept of the “rule of law” also implies that the forces of law and order are legitimate, that their coercive power is exercised justly and on behalf of a legitimate authority. In The West we regard a democratic electoral system as the only way of establishing a government with legitimate authority over its citizens. When the police are used to assert the coercive power of non-elected governments we are the first to condemn.
In the UK today, a government who do not have a mandate for such a policy is rapidly and systematically dismantling the post war welfare state. The Conservatives are only in power because of the LibDems, most of whose supporters voted for them specifically because they were opposed to such a policy (and in terms of the demonstration on last wed, very publicly opposed to an increase in student fees). What the ConDems are doing to our country today has not been democratically mandated and the use of the police to enforce government policy and hound those who oppose it is not “the rule of law” – it is a very British coup. Those who benefit most from freemarket hyper capitalism and have no respect for concepts of social justice and equality of opportunity have hijacked our government. To fight to stop them acting in this profoundly anti-democratic way and destroying the values of our nation is not to oppose the “rule of law”, it is to believe that the law only has legitimate authority when it is exercised by a legitimate authority.
One might reply that our democracy is “representative” and our MPs are delegates who simply carry out the mandate of the electorate; that they are thinking political men of conscience and have to be free to act on that conscience. This may be true (although not a picture of MPs that would be recognised outside the palace Of Westminster), but the question then arises as to who the current government “represents”. For our democracy to mean anything there has to be a correlation between the underlying values and political intentions of candidates and those who vote for them. For an election process to mean anything it is reasonable (even crucial) for me to be able to rely on the fact that the politician I vote for will pursue the policies I approve of. If not then it is quite literally a con, I have quite literally voted for one set of policies and get another, I was conned.
Jean Jacques Rousseau famously said: “The English think they are free. They are free only during the election of members of parliament.” I think there is a lot of truth in this and certainly since 1979 UK Governments of all persuasions have seen the electorate as a problem-to-be-overcome rather than the legitimating authority of their actions. This consciously elitist and self-serving attitude has profoundly undermined what little real democratic power existed in the UK and has increasingly reduced us as citizens to passive “victims” of government policy – policies which more-often-than-not they invent after the election thus rendering the pre-election discourse entirely meaningless.
If what I am saying is even partly true how are democratic citizens to assert their authority over governments who simply ignore them -except as “consumers” of electoral rhetoric during elections?
And so we come to the concept of Civil Disobedience as a legitimate form of political activity in an open society. In a representative system it is possible that an elected government can and will act in ways that are entirely at odds with the impressions and promises they gave during the election. It would be possible for example for a fascist or communist party to “guarantee” that elections will continue if they became the government. Then when in power if they had a sufficiently large majority they could pass laws to end democracy. They could claim that once in power and with access to inside government information, they have released the seriousness of the countries plight and feel that an election could destabilise the country. They could also claim that as a legitimately elected democratic government they have the moral authority to take this action.
In the German elections of 1933 Hitler’s Nazis were the biggest single party but had no overall majority, they were only able to form a government with the support of coalition partners that gave them a majority of 16. However, he needed a two-thirds majority of parliament to suspend elections. With the help of black shirted Nazi storm troopers who encircled the Reichstag and intimidated MPs he got his majority with only the 84 Social Democrats voting against. And so “the rule of law” had brought about the end of German democracy and led to WWII and the Holocaust.
Surely, it would have been right for the German citizens to riot and fight on the streets in an attempt to reclaim their democratic rights? They did not do so partly because of the brutality and ruthlessness of the police and army, i.e. due to the assertion of the coercive power of the state, who through quite legitimate democratic methods, had come under the command of a totalitarian party.
I am sure I will be accused of hyperbole here and it will be claimed that the situation with our CondDem government is not in any way comparable. I would reply that while there is some truth in the accusation of hyperbole what the Hitler scenario does illustrate is that there are circumstances when it is perfectly legitimate for citizens to fight their own government and even the coercive forces of power that such a government seeks to use against its own citizens.
Another example is of course the Polish union Solidarity led by Lech Walesa. This trade union broke every Polish political and union law you can think off and was supported by Margaret Thatcher in doing so. While Thatcher was describing UK Trade Unionists as “the enemy within”, she was celebrating Lech Walesa as a freedom fighter.
“The rule of law” is not some universal principle that can be applied without reference to the contingent situation in which the law is being enforced and to whom it is being applied and why.
Civil Disobedience, including rioting, maybe necessary to call illegitimate governments to account and in my opinion this current government is illegitimate by our own ineffective first-past-the-post system they did not have anything like majority support and under any form of proportional representation they would be nowhere.
I Am Not A Number
Political and Philosophical Dispatches From An Individual Living In A Society