What is law?
24 Apr 2019
From the moment that we humans began to sort ourselves into communities, we have had to work out how to control ourselves for the greater good of all. How can we resolve disputes without laying into each other, causing mayhem? Every society chooses authority over anarchy – but whose authority? The governance of the King or Queen was once good enough, and the rule of the priests still is in quite a few places. Custom and tradition do the same for some cultures, even today.
The rule of law is a different way of doing authority, replacing the will of the monarch, priest or cultural leader with a set of rules that are based on explicitly agreed constraints on power. It is not just our power as ordinary mortals to do what we want that is controlled by these rules standing above us. King John at Runnymede in 1215 didn’t have his head chopped off to be replaced by a new version of himself; instead, he signed on the dotted line at the end of Magna Carta promising to behave in future, with penalties for non-compliance waiting in the wings if he misbehaved. Just pause to think how amazing that is: a few words on a parchment, governing the conduct not just of potentially unruly neighbours, but of the most powerful of all as well.
It is surely a wonderful thing that, for all its faults, there is at least one remaining space in our political culture where words still matter.
That basically is what law is, though of course, it has grown into something much larger and richer over the centuries. In Britain, we now have sophisticated ways of making laws – no dragging of the Queen to Runnymede anymore, but instead a much more civil requirement that she sign what our representatives tell her to sign. We have also seen the evolution over time of a special class of experts who are steeped in the law, indeed, who make up big chunks of it; what we now call ‘the common law’. These judges have to be independent of all the parties before them and they are always by valuable tradition (and thanks to revolutions in the past) independent of the government as well.
Now as with any special framework, there are layers of complexity. The study of law is all about these deeper dimensions to what is, in essence, a very simple story. A big debate right now, for example, is over whether our judging class should be more diverse than it presently is (all those white men) – how above politics are these guys, really? Another lively discussion is about how much the judges should use their own sense of right and wrong in order to be free to say that some laws that they think are really nasty are not, after all, really laws at all, even if they have been passed into ‘law’ by parliament. Inflammatory stuff for sure, as are the judges’ rulings on things like marital rape, the reach of human rights into military adventures abroad, and much else besides.
Law is a technical subject, without doubt, but it courses through with large questions about the kind of world we live in and how best to protect the values that we as a society hold dear. The biggest, most extraordinary thing about law is something that we wouldn’t even have remarked upon just a few years ago, but at this time of ‘fake news’ and feelings about stuff driving policy is worth saying – and celebrating. Law is about reason – argument, logic, facts and evidence are its daily bread and butter. Now of course, behind that reason will often be the power of conservative reaction, willing and able to deploy the force of authority to crush dissent. Law will always be, and almost by definition is, wedded to preservation of the status quo. That said, it is surely a wonderful thing that, for all its faults, there is at least one remaining space in our political culture where words still matter and where promises made in the form of written undertakings (‘laws’) have consequences. A society that stops being governed by the authority of law and reverts to that of the ‘populist’, the priest or ‘the people’ is not a place where freedom will long survive.
Conor Gearty FBA is Professor of Human Rights Law at the London School of Economics and a Barrister of Matrix Chambers.