THE RULE OF LAW
Melbourne Argus, June 18, 1949.
The Fifth in a series connected with a study course conducted by
the Victorian League of Rights.
One of the major tragedies of these critical times is the lack of general understanding concerning the vital importance of a Constitution as a guarantee of individual rights and liberties. Most human activities are governed by the idea of a Constitution of some description; the idea that it is necessary to define in advance relationships between individuals, and between individuals and groups such as governments.
The Upper House.
Upper Houses are a Constitutional safeguard. Anyone who doubts the value of Upper Houses as a part of the Constitutions of Australian State Governments should recall the fact that the 1944 referendum, at which the electors of Australia overwhelmingly rejected Dr. Evatt’s demands for sweeping powers for the Canberra planners, was mainly the result of the Tasmanian Legislative Council’s refusal to be a party to the Tasmanian House of Assembly’s proposal to grant the powers without reference to the Tasmanian electors. Although all the usual arguments were hurled against the Tasmanian Upper House — it was “reactionary,” it was a “House of privilege thwarting the will of the democratically elected Lower House,” &c. — the 1944 referendum enabled the majority of Tasmanian electors to indicate that the Upper House had more accurately interpreted their wishes than had the Lower House.
What could be more genuinely democratic than Upper Houses and, if necessary, the Crown and its representatives, insisting that electors should be able to express directly their opinions on any controversial legislation or proposed Constitutional changes? Although always talking about democracy, the Labour-Socialists have over a number of years made it clear that they are irked by the fact that they must submit all proposed changes to the Federal Constitution to the electors.
The Need for Stability.
It is, of course, argued by most opponents of the Federal Constitution that it is very difficult to have this Constitution changed. But there can be no stability if a constitution of any description can be altered comparatively easily, perhaps by a small number of power-lusters temporarily stampeding [the] people. Stability is essential for genuine progress in all types of organisations. Stability permits a continuous growth based upon tradition.
An important aspect of the British political tradition is the idea of the Rule of Law, which has been defined by Professor Hayek in his famous book, The Road to Serfdom, as meaning “that the Government in all its actions is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty how the Authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of knowledge … within the known rules of the game the individual is free to pursue his personal ends and desires.”
But the Socialists and other totalitarians do not like the idea of the Rule of Law. The idea of the Rule of Law should be clear to all English-speaking peoples in particular, because they are the heirs to the tradition of common law, the fundamental principle of which is that “all persons, officials, no less than private individuals are equal before the law, are judged by the same tribunals and are subject to the same rules.” The supporters of the idea of omnipotent governments desire to be free to make their own rules to suit their own requirements. They believe in what has been termed Arbitrary Law as opposed to the Rule of Law.
Arbitrary or Totalitarian Law.
The difference between the Rule of Law and Arbitrary Law can be simply explained by a brief reference to road laws. It is right and necessary that a Government representing the electors of any area should lay down the road laws to be observed in that area. Although the Socialists are for ever advancing the superficial argument that all laws are a restriction of the individual’s freedom and’ that a modern community automatically necessitates more laws, a little thought should convince all reasonable people that road laws, for example, do not restrict the individual’s freedom of movement.
These laws actually make for greater freedom of movement and security:
Within the framework of these laws the individual is free to travel when and where he likes.
He knows in advance that he will be penalised if he breaks the laws.
All individuals travelling on roads, including those in the pay of Governments, are equal before the law.
The Rule of Law operates successfully.
But if Governments took it upon themselves to say who should travel on the roads, directed people to travel where and when they thought fit, and passed a stream of regulations to make their policies prevail, the Rule of Law would be destroyed by Arbitrary Law. The individual always rightly regards Arbitrary Law as a restriction on his freedom, and therefore not worthy of his respect. When the Rule of Law operates successfully in all spheres of human activities — political, economical, financial, &c. — little compulsion and policing is necessary because individuals realise that this type of over-riding law makes for greater individual liberty and independence. The increasing imposition of Arbitrary Law necessitates increasing compulsion and policing to try to compel individuals to do what they don’t want to do.
The time has arrived when electors must protect themselves against the threat of complete despotism by insisting that governments, along with individuals, must be subject to the principle of the Rule of Law. In his classic work, Law and Orders, the eminent English constitutional authority, Australian-born Professor C. K. Allen, writes “that the (constitutional) position in the Middle Ages was the converse of that which exists today … all enacted law was subordinate in the last resort to a supreme over-riding Common Law.”
Christian Origin of the Common Law.
An increasing number of students of history and organisation are beginning to assert that the salvation of the British way of life is only possible by the retracing of our steps, in the face of bitter opposition from those who assert that all change means progress, to that fork in the road of history where the wrong turning was taken. It is now obvious that we are on the wrong road, the road which can only lead to the creation of the Monstrous State and the destruction of all individual rights.
There is one major aspect of the subject of constitutionalism which must be courageously faced if there is to be a restoration of the supremacy of the common law and the consequent pruning down of Government powers which this will require, and that is the fact that the common law is in its origin a Christian system of law. The common law was evolved to protect what our forefathers termed the individual’s “natural” rights. These rights were accepted as axiomatic by those who unreservedly accepted the Christian philosophy.
Anyone who takes the trouble to read that profound document Magna Carta cannot but be struck by the fact that the underlying purpose of this Bill of Rights was the desire to establish every individual in the community in his own rights, rights which no one, not even the King, could take away. Magna Carta insisted that even when an individual was thrown into prison for some crime, he should not be deprived of his tools of trade; the right to make his living in his own way. Modern governments display their “progressiveness” by robbing individuals of their tools of trade by nationalising them! The steady destruction of the supremacy of common law is a deadly menace to practical Christianity. Common law was based upon an acceptance of the Christian principle that there are moral laws inherent in human nature and that all human associations, including governments, must conform to these laws. All realistic constitutionalism must conform to the laws of the universe, which obviously transcend human thinking.
The Socialist Principle.
But the totalitarians deny all this — Professor Laski says that Christianity has failed as a basis for human associations — because they will not accept the idea that the purpose of governments is to protect constitutional safeguards of the individual’s inherent and inalienable rights. They claim that there are no immutable principles of human conduct, no ultimate standards of justice, and that governments are responsible to nothing but their own unfettered wills.
The inevitable corollary of all this is that, as the individual has no inherent rights, rights granted him by God, he must obtain all rights from the state. And what the state grants, the state can take away. Man therefore exists to serve the state, and a blatant mockery is made of the Christian principle that the Sabbath was made for man and not man for the Sabbath — that individuals are superior to institutions and organisations.
The threat of the Omnipotent Government, the destruction of constitutional safeguards of individual rights, and steady whittling away of the rule of law are challenges which must be taken up by every person who claims to be a Christian.
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