Benjamin Bestgen: Reaffirming the rule of law
I’m following with interest the current debate around a declaration of around 291 English barristers and solicitors refusing to prosecute climate change protesters and further refusing to act for clients in the fossil fuel industry on new projects. The Daily Mail made this declaration the subject of its Orwellian “Two Minutes Hate”, directing its manufactured outrage against these “woke barristers”.
Jolyon Maugham KC, one of the barristers who signed the declaration, takes a principled philosophical stance as he explains his reasons to add his name to the declaration. His article is short, easy to understand and worth reading.
On the surface of it, it appears what these barristers are doing is strong stuff, at least in England and Wales:
- They openly declare prejudice against a certain type of clients who may need legal representation, in this case members of the fossil fuel industry.
- They refuse to accept instructions to prosecute climate change protesters under laws, which, as long as they are enacted through the accepted legislative process, would be valid law (to legal positivists anyway).
- The second point also implies that they intend in certain cases to break with a well-established rule of the English bar, the cab-rank rule, thereby risking a charge of professional misconduct.
But philosophically, none of this is necessarily radical nor should it be seen as such. It is the logical reaction of lawyers committed to the rule of law and how it is meant to work if you accept that the rule of law should contain at least an element of substantive content rooted in a commitment to justice. Let’s look at it closer.
How law and justice relate
It is not a given that law and justice relate at all. There are jurisdictions in this world where the relation is tenuous at best and the law is wielded as an arbitrary instrument of coercion by the lawmakers against those they wish to suppress.
But the idea of the rule of law demands not only that absolutely everybody, including the government and lawmakers, are subject to the law, that the judiciary is independent or that the law must guarantee fair trials. For some thinkers it also demands that each law is based on or connected to the idea of justice. Justice, at heart, is a core ethical principle, concerned with setting out what people may be entitled to and deserve, with what is fair, equitable, balanced.
To illustrate this, laws sometimes have outcomes that can be hard to stomach, but if these outcomes are the consequence of a law rooted in justice, we can generally be expected to live with it. Imagine a murderer being found not guilty because the law demands that their guilt must be proven beyond reasonable doubt. The prosecution is pretty sure the accused likely did it but isn’t certain. That’s not good enough to convict, so the accused goes free. The underlying principle of justice in this example is that it would be worse for the law to permit the conviction and punishment of innocent people than the release of someone who is probably, but not definitely, guilty.
Laws which are designed to target protesters with draconian penalties while protecting and enabling businesses who knowingly destroy large parts of our planet for profit (profits they mainly hand over to their private shareholders and executives) are difficult, if not impossible, to root in justice. Such laws are not merely unwise or have unintended ugly outcomes which will be corrected at once. They are deliberately enacted by lawmakers who are ideologically committed to use the law as a weapon against activists who embarrass or inconvenience these politicians or who disrupt the interests of powerful lobbies these lawmakers are beholden to. Such laws are inherently unjust because it could be argued that justice was never a consideration that went into making them.
Prosecuting under unjust laws – agents of injustice
As independent law agents, barristers encounter a dilemma. Making law is for Parliament while lawyers are only meant to interpret and apply it. If Parliament makes an unjust law, barristers, bound by the cab-rank rule, may find themselves in a position where they are called upon to prosecute people under that unjust law. Thereby they’d be doing their job as legal workers but actively facilitating injustice. That cannot sit comfortably with any legal professional committed to upholding the rule of law.
Enabling those who do grave harm under the shield of law
In the same vein, barristers may find themselves called upon to assist clients whose actions are not merely controversial but on the whole, downright harmful to society at large. The tobacco, alcohol, sugar, firearms or gambling industries come to mind. But in case of the fossil fuel industry, the harm done is even more fundamental; it affects the planet we live on, the water we drink, the food we eat, people in far-away countries significantly poorer and less protected than ourselves. It harms the wellbeing of future generations to inherit a habitable planet, capable of providing the opportunity for them to try and enjoy a good life.
While philosophically it falls more into the “natural law theory” camp instead of the widely taught “legal positivist” one, it is rational to argue that the law should not enable or protect anybody who deliberately conducts activities that bring about such extreme levels of harm. If the world becomes a place where people struggle to enjoy even a basic quality of life, the rule of law itself will be replaced by the anarchy of people fighting for survival and resources or the dictatorship of a mighty few who are able to uphold a modicum of order through force.
Loss of trust in the rule of law
A problem with the rule of law is how vulnerable it is to political abuse. When politicians enact laws whereby they increase their own powers, remove themselves from scrutiny or punishment and use the various forces at their disposal to crack down on dissenters, the rule of law transforms into the autocratic “rule by law”.
The rule of law is also threatened when, as it is sometimes put, the courts of England are open to all, like the Ritz Hotel. Law professor Katharina Pistor, in her insightful book The Code of Capital, details how English law, from contract law and company law to trust and property law, was and remains tailored to suit the interests of the rich and powerful and how lawyers are often complicit in this. The notion that the law only works for those who can afford to use it and have wealth or powerful backers is most corrosive to the stability of a justice-based legal system and social order at large.
For various reasons, I normally tend to keep my personal opinion out of my articles. But for what it’s worth, I agree with Mr Maugham when he writes that our history books note with horror how the law in past times permitted rape, racism, murder and other ills. Tomorrow’s history books, I’m certain, will likewise condemn how present lawmakers enabled the continued exploitation and destruction of our planet, causing harm to billions of people currently alive and yet to be born.
Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh. He is the author of “Practical Jurisprudence – Attempts to make legal philosophy interesting” (2022).