The rule of law

Brave New World (The Star)
3 April 2013

When the law is seen as being used in a discretionary manner, that is to say it is being applied to some and not to others, not only is this clearly wrong, but it will also lead to extreme anger.

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AS a concept, the Rule of Law is like the “Stairway to Heaven” of jurisprudence.

Everyone knows it, but everyone seems to have their own understanding as to what it means.

One thing that the informed have agreed upon is that the Rule of Law does not mean rule by law.

The latter implies that any law, be it wicked or good, is valid and will be enforced.

The former is a more complex proposition, for it means that we are ruled by laws and not the discretion of man (or woman) and, furthermore, that law has to guarantee certain principles.

When A.V Dicey formulated his version (and this is now considered the classic version) of the Rule of Law, his primary concern was for the avoidance of arbitrary, and thus unjust, power.

To this end, he identified three main principles of the Rule of Law and these were: a person can only be punished after a fair trial, the law is to treat everyone equally and the rights of individuals are to be protected by law.

Dicey’s work has of course been discussed and refined many times since its publication in the 19th century.

One of the issues is the concept of “equality”. Taken at face value, Dicey’s “equality” sounds very much like the Aristotelian concept of “formal equality”, where the government treats all persons the same.

Of course this is not pragmatic nor is it desirable.

For example, a child caught for stealing should not be given the same punishment as an adult caught for stealing.

However, the ideal is a strong one and it can be understood to mean that like should be treated as like.

So a 26-year-old thief should face roughly the same consequences as another adult thief, and a 12-year-old wannabe Artful Dodger should face the same consequence of another pickpocket in his age group.

When speaking to people with regard to concepts of justice, equality almost always comes up.

People are not stupid, they understand the subtleties and the sophistication of this concept, but nonetheless, the ideal of equality is a powerful one.

The reason for this is obvious, equality, or the closest approximation to it is considered fair, and conversely unequal treatment is deemed a tremendous injustice.

It is so basic, so primal and so fundamental to the human concept of justice that it is instinctive even in children.

To test this, just try giving one sibling a larger piece of chocolate than the other.

Due to the power of this concept, it is of vital importance that those in power understand and respect it.

When the law is seen as being used in a discretionary manner, that is to say it is being applied to some and not to others, not only is this clearly wrong, but it will also lead to extreme anger.

If a thug destroys my enemy’s property, and if I am in power, that thug must be apprehended and punished even if his actions may give me personal pleasure.

That is the burden of power and that is what anyone who deems himself worthy of holding office must bear. Any less and you are nothing more than a tyrant.

The need to use the law equally on all becomes even more important when the law itself is flawed. For nothing sticks in the craw more than an unjust law applied unequally.

The hypocrisy of such actions only goes to show that the wielders of the law are only using it for their own nefarious purposes, whatever that might be.

Interestingly enough, these are two deeply philosophical legal concepts in our Rukun Negara – Constitutionalism and the Rule of Law.

I am glad they are there; I only wonder whether they matter today.