How the Law Came to Rule, Part III

Dear readers,

part three of this series focuses on more recent developments in the sphere of the rule of law. Just like in the previous parts, we're taking a look at the book 'The Rule of Law' by Tom Bingham.

VIII. The Constitution of the United States of America

What made the Constitution unique in its time was the fact that it could be deemed the first attempt at creating a central government whilst preserving the autonomy of the individual states. Another one of a kind feature was the inclusion of the ten amendments meant to protect the rights of an individual.

Unlike most legislatures at the time, the Constitution was produced not by a ruling class elite but by a ‘wide-ranging, high quality debate and genuine democratic endorsement.’

The historical context helps us understand why the Constitution became the highest authority in the US. The leaders of the American revolution had many former British lawyers among them. As a result of this the common law of England as well as the Magna Carta inspired their own legislature. Magna Carta ruled over the monarch, so the revolutionaries drafted the Constitution in a way that would make it a similar kind of authority - higher law unalterable without a strong popular mandate.

We can contrast the legislative branches of the USA and Great Britain. The Congress of the US had clear limits to their competences and power instilled in the Constitution, whereas the British Parliament had absolute powers that made it possible for them to abolish the Magna Carta itself.

IX. The French Declaration of the Rights of the Man and the Citizen 1789

Inspired by the enlightenment era of Rousseau and the American Declaration of Independence, the just returned Marquis de Lafayette drafted the Declaration of the Right of the Man and the Citizen.

It declared that:

• Men (in this sense person) were born and remained free and equal in rights

• The aim of all political association was to preserve the rights of man

• The sovereignty of the state rested upon its nation

• That liberty was the freedom to do anything as long as it didn’t harm others

• The law could only prohibit actions truly harmful

• The law was a reflection of the will of the people

• No one should be imprisoned or arrested or accused without a lawful reason

• The law should only punish when necessary and not permit retrospective penalisation (being penalised for a past crime)

• That the accused should be presumed innocent until proven guilty = presumption of innocence

• No one should be harassed for their opinions and religious opinions unless they’re causing public disturbance

• Freedom of expression is fundamental

• Military for the protection of the rights is necessary

• The public should have a right to vote on taxation, they should however all be taxed

• That public officials may be held accountable for their administration’s acts

• That a state with no separation of power and no observance of the law had no constitution

• The right to own property and not be deprived of it. If the situation absolutely requires it, property may be confiscated but the owner must be compensated

Many of these provisions are similar to modern documents.

X. The American Bill of Rights

The first ten amendments of the constitution of the US are also known as the American Bill of Rights. Let’s have a look at what the 10 amendments stated.

Article I

• Limited the exercise of the legislative branch of power.

Article II

• A well regulated military is necessary for a free state. The people of America shall have the right to own and carry arms.

Article III

• Is related to the issue of housing soldiers at a time of peace which was important after the American Revolution.

Article IV

• People are entitled to be secure in themselves and their possessions. No unspecific searches or seizures of property of persons is to be authorised (every search/seizure must be specific and with reason).

Article V

• No person can: be tried for the same crime twice, be a witness against themselves, be deprived of their property without due compensation, be punished without a lawful trial being performed - ‘nor be deprived of life, liberty or property, without due process of law’

Article VI

• Compiles the rights of the accused regarding their trial.

Article VII

• The right to a civil trial by jury in any case where the sum in dispute exceeds 20 dollars.

Article VIII

• No excessive bail, punishment or fines. No cruel punishment.

Article IX

• Retention of existing rights outside of the Constitution.

Article X

• Reservation ‘to the States of powers not delegated to the Federal government by the Constitution’

XI. The law of war

Though many have labelled the laws for conduct of warfare and protection of civilians and prisoners of law unenforceable and ineffective, they have undoubtedly contributed to a less brutal version of warfare and spared the lives and psyches of many.

If you’d like to read more, feel free to check out a more in depth blog on the subject.

XII. The Universal Declaration of Human Rights

Drafted by a diverse global community and prompted by the evolution of society and the horrific events of World War II, this Declaration is a milestone that must be mentioned.

It was drafted by a community from all over the world, and led by the chairwoman Eleanor Roosevelt in 1948. Then it was adopted in December of 1948 by the General Assembly (read more here) of the United Nations with 48 votes in favour, 8 abstained and none against.

Against the wishes of René Cassain (FR) and the British, the Declaration was not and still is not binding.

It drew from most of the documents mentioned earlier and in PART I as well as PART II. Similarly it inspired quite a few more recent Covenants, Charters and Conventions all across the world.

More on the Declaration

* Please note that at no point in this blog am I providing legal advice or claiming to be a professional. These blogs are for entertainment and educational purposes only.*

*All excerpts are taken from Tomas Henry Bingham (2011). The rule of law. London: Penguin Books.