THE ENABLING ACT was passed by the Reichstag on 23 March 1933. With this single piece of legislation, every act of the Reich Government and its Chancellor, Adolf Hitler, was given the force of law. Any conscientious German lawyer seeking to test the legality of the Nazis’ subsequent, democracy-crushing, edicts in Germany’s highest courts, would have been reassured that the “Rule of Law” remained inviolate.
Quite rightly did the nineteenth century British novelist, Charles Dickens, proclaim: “The law is an ass!” Laws do not rule – people do. This is the incontrovertible fact which Mr Andrew Borrowdale, the man who required the High Court to rule on his challenges to the legality of the Covid-19 Lockdown, singularly failed to grasp.
Not that Mr Borrowdale lacked encouragement for his Quixotic endeavour. All manner of pedants and purists were quick to figuratively pat him on the back for his services to the “Rule of Law”. As if the judgement of a few lawyers – albeit lawyers in flowing robes and horsehair wigs – should somehow be permitted to stand above the straightforward, self-protective judgements of ordinary men and women threatened by a global pandemic. As if the decisions made by the people’s elected representatives – for their protection – can be reasonably and responsibly struck down by a gaggle of job-for-life jurists elected by nobody at all.
Thank God the judges of the High Court turned out to be a great deal more intelligent than the individuals who put so much stock in Mr Borrowdale’s appeal. Andrew Geddes, a law professor at the University of Otago summed it up nicely:
“So it’s not that the Court got the decision wrong. Rather, it seems clear that the Court’s perception of its job, and the law at issue, was very much coloured by the same collective concerns that drove the government’s response to the virus. Preventing lots of people from dying from a disease is perhaps the government’s highest obligation, and the law has to be seen as enabling the government to carry out that task.”
Or, as the celebrated Roman statesman, Marcus Tullius Cicero (106-43 BCE) so succinctly put it: Salus populi suprema lex – The safety of the people shall be the highest law.
Obviously, preserving the people’s safety is, above all else, a political obligation – not least on the part of the people themselves. Consider the passage of the Enabling Act in 1933. Had the German Social Democrats and Communists not been at daggers drawn; had the German army not been so consumed by its desire to wipe out the humiliations of the Treaty of Versailles; then the farcical conditions in which the Enabling Act was passed (the German parliament was ringed with Nazi Stormtroopers, and the Communist Party MPs, having all been taken into “protective custody”, were absent from the Chamber) could not have arisen.
Thirteen years earlier, in 1920, an attempt by extreme German nationalists, backed by the army and right-wing paramilitaries, to overthrow the Weimar Republic had been foiled by the decisive action of the Social-Democratic Party-led government. Its call for all German workers and civil servants to come out in a nationwide general strike was backed by all the other parties of the German Left. Twelve million workers and civil servants responded. The country ground to a halt. It was the largest and most successful strike in Germany’s history. The so-called “Kapp Putsch” collapsed.
Three years after Kapp, in 1923, Adolf Hitler’s attempt to stage his own putsch (coup) was foiled by the Munich police. Formed up in a skirmish-line, the armed policemen ordered Hitler’s brownshirts to halt their march through the city. The Nazis (also armed) refused and came on. The Police commander gave the order to open fire. Those Nazis who still could (sixteen of them were killed) fled.
In both cases, the German judiciary had nothing useful to contribute. It was not the Rule of Law which saved the Weimar Republic in 1920 and 1923, but the German people themselves. Just as, in 1933, it was not the Rule of Law which transferred all effective executive power into the hands of a political psychopath. That was the work of a Depression-ravaged and politically exhausted German population – just enough of whom were ready to trade their liberty and decency for economic security and an end to the Weimar Republic’s intractable political divisions. As clear a case of “be careful what you wish for” as one could hope for.
In New Zealand, in 2020, the people have also prevailed. A leader they trusted, and who very clearly had their interests at heart, implored New Zealanders to unite against Covid-19 by staying home inside their bubbles. The New Zealand people responded by doing just that. Thus did Jacinda Ardern’s prioritisation of her fellow citizens’ welfare elevate her words to the status of suprema lex – the highest law.
Jacinda acted hard and early on our behalf, and we should all be exceedingly grateful that she refused to abdicate her responsibility to the courts. That the courts appear to agree is welcome proof that there are at least three judges left in New Zealand who still understand Latin.
This essay was originally posted on The Daily Blog of Friday, 21 August 2020.
A problem with this approach is that it is the thin end of the wedge. Why bother with a parliament at all then? Save a lot of money and time to just elect a leader for a term and let them get on with it. Except that the leader might then decide to be a Leader. The Rule of Law has quite a lot going for it.
History will tell Jacinda's decision was the right one.
The rule of law is fundamental to a free, civilized society. The alternative is thuggery. That is the fate the people of Hong Kong are now so stoutly resisting. Ardern and certain senior officials massively exceeded their authority, while stripping us of our fundamental civil liberties. The cause may have been "just" to some but the disregard for the law and the abuse of our trust are deeply alarming. Thank you Mr Borrowdale for taking this important case to court.
Chris, the "rule of law" is not the same thing as obedience to whatever law happens to be imposed by any given ruler. Rule of law is a system under which actions that are illegal are clearly defined without reference to the powers of particular personalities, groups or institutions. So under rule of law the police, security forces, and government generally are subject to the same legislation as any citizen. The police and the Chief Censor, for example, would have no greater rights or powers than you or I, and in fact under rule of law there is no Chief Censor, because the law itself defines what is prohibited. Neither would there be bureaucratically proscribed "terrorist organisatons" or "criminal gangs". People could only be punished for actions which violate the laws which apply to every other citizen and every other organisation.
Similarly, bureaucratic and police discretion, and the potential for abuse of discretion, is absent from a society which operates under the pure rule of law. So rule of law is the opposite to administrative rule, where individuals in power make arbitrary decisions on what is or is not permissible.
That is why "rule of law" is anathema to all the main factions within the colonial regime and to fascists wherever they may be found.
Adolf Hitler did not promote the rule of law. He enforced its opposite, the "fuhrer principle" which gave absolute discretion and power to himself and his party.
You are on a wrong and dangerous track.
The rule of law did not apply in Berlin at the Reichstag in 1933. It did apply in Nuremberg at the Palace of Justice from 1946 to 1947.
The rule of law means no one is above the law; not a Nazi in 1930s Europe who murders Jews and homosexuals nor a New Zealand policeman in 2020 Aotearoa who stops a New Zealander from going for a drive, just because Jacinda Ardern said so.
The best analogy, I think, would be Abraham Lincoln suspending habeus corpus during the American Civil War. Let's just say that history has been kinder to Lincoln than Taney.
Strictly speaking "The safety of the people" is not a law at all, let alone "the highest law".
It is a political objective, nothing more and nothing less.
And I am not sure that it is the real objective of the present New Zealand government.
If it was, why would we have people going homeless in a cold climate? Why would we have families struggling to feed themselves? Workers being killed on the job? Pillars of society amassing wealth through the sale of alcohol and tobacco? Ordinary folk under such financial and social stress that they suffer from suicidal depression?
So Cicero's dictum was, and is, no more than a slogan intended to justify arbitrary rule with the power to over-ride any and all laws.
We are simply telling Jacinda's government that while we respect its efforts to control the pandemic, and will cooperate fully in that, we have not given it a license to exercise arbitrary power.
But for the sake of argument and enlightenment - do the laws on the physical level of Nature - which cannot be altered by humans - rule over humans, or are they ruled by humans ?
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