BBC 2012 Third Reith Lecture: The Rule of Law

John Curran

Prof Fergusson

The Aspen Institute Photostream

In Naill Ferguson`s third Reith Lecture the Professor focuses on the evolving nature of Anglo-American common law a comparative exercise allowing him to refer to alternative legal jurisdictions, most notably China where no separation of power or independent judiciary exists. In the West argues Ferguson the rule of law has degenerated into the rule of lawyer`s, especially in the USA, which was once the gold standard other legal jurisdictions measured themselves by the “United States was the rule of law” according to Professor Ferguson.The halcyon days Ferguson identifies are difficult to reconcile with America`s constitutional arrangement built on the premise that African-Americans were three-fifths human, the so called compromise of 1787. Jefferson author of the `Declaration of Independence` was also a slave owner and as Malcolm X quipped “we didn’t land on Plymouth Rock, Plymouth Rock landed on us”.  Indeed, women were also denied the vote prompting the Seneca Falls Convention 1848 to campaign for democratic rights a goal not achieved until 1920 a measure excluding African-American women living in the Deep South.  

Professor Ferguson is of course conscious of this; his commentary on John Locke at the end of his talk indicates his awareness. Jefferson was influenced by the notion of `natural rights` life, liberty and the pursuit of happiness but Ferguson reminds us that Locke who is identified with `natural rights` also wrote the Constitution for the slave state of Carolina. However, rather than focussing on deficiencies in the USA arrangement Ferguson states “at the heart of the expansion of England was a huge hypocrisy which in some ways Locke personified that the property rights were peculiar to white men.” This is slippery stuff because Ferguson appears to forget the tension that existed between the American colonists and the British Empire; the Dunmore Proclamation in 1775 promising to free all slaves if they joined the forces of the crown was met with horror in the south further motivating white colonists to take up arms against Britain while paradoxically encouraging African-American slaves to fight for Britain.

African-American are now equal validating Fergusons thesis but the civil rights movement received scant help from his vaunted independent judiciary.  The Supreme Court established in Marbury v Madison the authority through judicial review to set aside legislation breaching the constitution. The example of the fourteenth Amendment is a good illustration of this: nor shall any state deprive any person of life, liberty, or property, without the due process of law; nor deny to any person within its jurisdiction the equal protection of the law.

This amendment introduced after the civil war was enacted to secure the rights of African-Americans released from slavery, as the south imposed a racial apartheid system the Jim Crow laws, breaching the `equal protection` clause forcing African-Americans to seek redress before the Supreme Court. In Plessey v Ferguson the Supreme Court determined that Jim Crow did not infringe African-Americans constitutional rights they were “separate but equal”. This legal sophistry created a de jure racially separate society that remained in place until the 1950s, overturned in Brown v Board of the Education. While aristocratic Britain found slavery repugnant the United States the champion of the free world did not properly qualify as a democratic state until it passed the Voting Rights Act 1965.

A written constitution is as good as the Judges who interpret it and in times of threat it appears unable to stand up to an overbearing executive. The list of failures include the red scares in the 1920s and the 1950s which saw HUAC reduce those before it to mumbling automatons citing the fifth amendment. There were a few exceptions such as Paul Robeson who bravely stood up to this committee his statement before HUAC should be recommended reading for Professor Ferguson. The parallel hearings in the Senate chaired by Joe McCarthy allowed the Senator from Wisconsin to trounce the Constitution. The terrible treatment of Japanese-Americans after the bombing of Pearl Harbour was also sanctioned by the Supreme Court. Eventually the Supreme Court checks the executive as it did in 2004 over Guantanamo Bay but as all lawyers know `delay defeats equity`.

While Britain in 1765 held in Entick v Carrington that a search for seditious materials was unlawful in the USA during the Presidency of John Adams a nation in the grip of fear forced the government to introduce the Alien and Sedition Act effectively setting aside the rule of law that `freeborn` John Lilburne had valiantly helped establish in England in 1649. While the Common Law altered and changed it did so through struggle by radicals and this issue is seemingly outside Professor Ferguson`s remit.

Ferguson does examine civil liberties “it’s always a choice between habeas corpus and hundreds of corpses” saying this while commending the Mansfield judgement for removing the legitimacy of slavery. The Professor appears to forget that the case of James Somerset only came to light as a result of habeas corpus, it`s not to be sneered at, the concept is the cornerstone of the rule of law.

On November 5, 2011 Professor Noam Chomsky gave the 7 Edward Said Memorial Lecture where he made mention of the fact that the Anglo-American principle of a `presumption of innocence` no longer applied a concept he argued so outmoded as to appear to belong to the “Stone Age”. Professor Chomsky cited historian Mark Curtis`s notion of “unpeople” (Chomsky also identified the fourteenth amendment as part of the process that creates this situation) such “unpeople” are individuals devoid of humanity and therefore basic rights. This concept argues Chomsky allows the American government to carry out political assassinations throughout the world including executing US citizens. Professor Ferguson claimed “China does not lack law but the rule of law” sadly there have been many occasions to apply this same logic to the USA itself, perhaps the BBC will check Professors Chomsky`s availability for next year`s Reith Lecture?

This article was first published last summer by LLBonline. The first lecture was reviewed on this site by the same author.

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One Response to BBC 2012 Third Reith Lecture: The Rule of Law

  1. Paul Crofts says:

    Critical race theory/critical legal studies have a great deal to offer to this debate.

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