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Why different rules for different people doesn’t work: reflections on the rule of law in America, Australia and the United Kingdom.

When explaining western prosperity the ‘rule of law’ is generally bundled together with other unique attributes of western civilisation and usually implies one concept – property rights. Historian Niall Ferguson, for example, has put forward six “killer apps” of western civilisation “that set the west apart from the rest”: competition; the scientific revolution; modern medicine; the consumer society; the work ethic; and property rights.[1] Amid these important attributes it is worth reflecting on the contribution of private property rights.

During an interview in 2002, the late Milton Friedman rhetorically asked: “What does it mean to privatize if you do not have security of property, if you can’t use your property as you want to?”[2] Indeed, it is difficult to envisage the United States without its early and firm responses to questions like these. From champion nineteenth century industrialists like John D. Rockefeller through to the property seeking individual, one could only prosper if they were guaranteed a firm degree of legal protection for what they owned.

This concept of protection for one’s property had its roots in Britain where, by the seventeenth century, private property had come to be viewed as “the holiest of holies”.[3] Such thirst transposed firmly onto Colonial America, illustrated by the hugely popular land grants that were used to establish settlements, mission and farms. Important to recall is that land was not viewed as simply open space – it was vigorously pursued as a productive asset.

A contrast with other world powers of the time captures America’s uniqueness. Alexis de Tocqueville, in his landmark Democracy in America (1835), observed that through its careful legal scaffolding, the United States made a more deliberate commitment to the rule of law compared with his home nation of France.[4] Fused with an enterprising spirit, a strong degree of self-organisation and an increasingly steady political system, de Tocqueville effectively gave his scorecard on the two systems. “In America it works through elections and decrees,” he wrote, “in France by revolutions”.[5]

British colonial legacy, although uncomfortable for many to acknowledge, explains a great deal. Today the countries of South America, for example, which were colonised largely by the Portugese and Spanish – also great powers of that era – did not pursue property rights to the same degree as their British competitors.[6] Over time, confused property regimes can have profoundly negative consequences for the economy, which is symbolised today in the large informal sectors dominating the region.[7]

Although law and order did take time to establish itself, Australia more or less replicated Britain’s commitment to the rule of law. Ironically, the status given to private property in Britain during this time was fuelling the arrivals of convicts to Australia.[8] For example, minor offences against property – stealing a chicken or loaf of bread – met unusually harsh sentences to Australia’s then-penal colonies.

Convicts were not the only new arrivals gracing Australia’s shores. From the mid-1800s a resources boom, looming gold rush and the associated commercial activity required considerable external labour and expertise.[9] Much like the United States during its early period of growth, property was given strong political and legal support by colonial authorities. Even many ex-convicts, for example, were able to secure professions in industries where a decent legal regime was critical including banking, shipping and real estate.[10]

A commitment to the rule of law during this period of growth produced some interesting results, especially around immigration and social cohesion. As an example from Keith Windschuttle highlights, in the early 1800s, “although colonial governments did use legislation to try to restrict Chinese immigration, the rule of law in the Australian colonies during the gold rushes by and large defended the Chinese and gave them the same rights as Europeans”.[11] While one can imagine some social unease surrounding these moves at the time, a commitment to the law saw that Chinese immigrants were given protection and rights.

Similar to the United States, Australia proved unique for the times. “Before 19^th century pressures from the imperialism of Europe and America,” the sinologist W.J.F. Jenner contrasts, “there was nothing remotely like the notions of positive political freedom or political rights within the public life of society that have developed at the western end of Eurasia over the last 2500 years”.[12]

Such exception implies more than just the establishment of courts, clerks and contracts. History, after all, is littered with regimes that have strictly applied laws yet failed to bring long-term economic fruit or lasting social cohesion. Although Ferguson’s ‘killer apps’ are suitable explanations for western success there is clearly something more subterranean at play within western democracies.

This is where the discussion of values becomes important. As the political scientist Francis Fukuyama suggests, successful states appear to require a strong degree of “correspondence between [the] law and social norms”.[13] If a state’s laws, shaped by legitimacy and consent, are considered to be ‘the glue’ that binds a community together, account must be made for the core values that the community holds. People matter, in other words, not simply the mission statements of institutions.

What values, then, are most compatible with the western notion of the rule of law? More directly – what values do the United States and Australia appear to share? In his 2008 Irving Kristol Lecture former Australian Prime Minister John Howard answered: “They are the values of personal liberty and individual freedom; the belief that decency and hard work define a person’s worth, not class or race or social background; and the confidence that all of the peoples of the world will embrace democracy if they are given the opportunity to enjoy its benefits”.[14]

Howard makes an overwhelming case for collective identity and social cohesion from the values he identifies – commonality versus fragmentation, similarity over difference and, most important in the disposal of ideas like ‘legal pluralism’, unity over division.

Despite its attachment to economic advancement and social cohesion, some have grown weary of the western notion of the rule of law. An abundance of cultural, ethnic and religious groups within western democracies, it is argued, requires a parallel set of culturally-specific legal jurisdictions.[17] A rule of law derived from Britain and adapted to local circumstances – like that in the United States and Australia – is seen as coarse, ‘mono-cultural’ and unsuitable for managing a complex society.

While these pronouncements are made under the banners of ‘progress’ and ‘social justice’ the results are wildly unimpressive. The United Kingdom, for example, has for years permitted the function of quasi-Shariah courts to preside over commercial and civil disputes.[18] Not only has this encouraged division and a weakening of British collective identity, it has opened the gate to instances of honour killings, arranged marriages and other activities that, in the words of UK Prime Minister David Cameron, “run completely counter to our values”.[19]

Muslim women are not the only direct losers from this kind of subversion – scores of young men in Britain and elsewhere are taught not to respect the state but instead secure their identities in an extreme religious code of conduct. Both the message and outcomes are clear – some state rules apply, some do not.

In a textbook example of this in Australia in 2006 one radical cleric underlined that, for some Muslims, “This is a problem. There are two laws – there is an Australian law and there is an Islamic law”.[20] As then-Commonwealth Treasurer Peter Costello responded, “No this is not a big problem. There is one law we are all expected to abide by. It is the law enacted by the Parliament under the Australian Constitution. If you can’t accept that then you don’t accept the fundamentals of what Australia is and what it stands for”.[21]

A duplicitous legal regime, where some are covered by state laws and others are not, clearly jeopardises the fabric and character of western democracies. Any attempt to implant separate and parallel bodies of law, based solely on someone’s background, has fundamental consequences for social cohesion and western prosperity. Indeed, it is difficult to envisage the success of great democracies like the United States and Australia had such rigidly divisive legal regimes been pursued from their humble starts.

The United States and Australia have shared a deep and historical respect for the rule of law, emphasised through property rights and social cohesion. As developments in the United Kingdom show, entertaining a small degree of legal pluralism, even under seemingly harmless pretences, has invited a stream of undesirable outcomes.

Legal pluralists will do well to remember the Latin phrase E pluribus unum inscribed on the seal of the United States, which translates to ‘out of many, one’. Although no comparable phrase is as widely broadcast in Australia, there is perhaps no need for one – it is fused within the laws, history and the people of the nation.

This essay is adapted from a category winning submission to the 2012 Conservative Essay Writing Contest (ran by Australia’s Conservative Leadership Foundation).

Sources

[1] Niall Ferguson, “The 6 killer apps of prosperity,” TED Talks, July 2011, http://www.ted.com/talks/niall_ferguson_the_6_killer_apps_of_prosperity.html (accessed Jun. 28, 2012).

[2] Milton Friedman, “Economic freedom behind the scenes: Preface to Economic Freedom of the World Report 2002,” Cato Institute, http://www.cato.org/special/friedman/friedman/friedman4.html (accessed Jun. 28, 2012).

[3] Niall Ferguson, Empire: How Britain Made the Modern World (Camberwell: Penguin, 2003), 104.

[4] Alexis de Tocqueville, Democracy in America, Abridged edition by Scott A. Sandage (Sydney: Harper Perennial, 2007), 49-51.

[5] Ibid., 70.

[6] Niall Ferguson, Civilization: The West and the Rest (Camberwall: Allen Lane, 2011), 105.

[7] Hernando de Soto, for example, has written extensively on the challenges of establishing property rights and its negative consequences in South American economies.

[8] Ferguson, Empire, 104.

[9] Thomas Barlow, The Australian Miracle: An Innovative Nation Revisited (Sydney: Picador Pan-Macmillan, 2006), 74.

[10] Ferguson, Empire, 106-107.

[11] Keith Windschuttle, The White Australia Policy: Race and Shame in the Australian History Wars (Sydney: Macleay Press, 2001), 172.

[12] W.J.F Jenner, “China and Freedom,” in Asian Freedoms: The Idea of Freedom in East and Southeast Asia, eds. David Kelly and Anthony Reid (Melbourne: Cambridge University Press, 1998), 37-64.

[13] Francis Fukuyama, “Transitions to the Rule of Law,” Journal of Democracy, no. 1 (2010): 37.

[14] John Howard, “Keeping Faith With Our Common Values: 2008 Irving Kristol Lecture,” American Enterprise Institute, 5 March 2008, http://www.aei.org/speech/society-and-culture/keeping-faith-with-our-common-values/ (accessed Jul. 4, 2012).

[15] See, for example, Indian Prime Minister’s Manmohan Singh’s 2005 address at Oxford University: 8 July, 2005, The Hindu, http://www.hindu.com/nic/0046/pmspeech.htm (accessed Jul. 1, 2012).

[16] Keith Windschuttle, “English law and the spread of civilisation,” New Criterion, January 2011, 19-22.

[17] Jamila Hussain, “More than one law for all: Legal pluralism in Australia?” Paper presented to the Fifteenth Annual Public Law Weekend, Australian National University, Canberra, 4 September 2010, http://law.anu.edu.au/cipl/Conferences&SawerLecture/2010/Hussain.pdf (accessed Jul. 2, 2012).

[18] Melanie Phillips, “Melanie Phillips on the Archbishop of Canterbury and Islamic Sharia Law in Britain,” ABC Radio National, 13 February 2008, http://www.abc.net.au/radionational/programs/religionreport/melanie-phillips-on-the-archbishop-of-canterbury/3281536 (accessed 10 Jul. 2012).

[19] David Cameron, “PM’s speech at Munich Security Conference,” British Prime Minister’s Office, 5 February 2011, http://www.number10.gov.uk/news/pms-speech-at-munich-security-conference/ (accessed Jun. 20, 2012).

[20] Ben Brika cited in Peter Costello, “Worth Promoting, Worth Defending: Australian Citizenship, What It Means and How to Nurture It: Address to the Sydney Institute,” 23 February 2006, http://www.petercostello.com.au/speeches/2006/2111-worth-promoting-worth-defending-australian-citizenship-what-it-means-and-how-to-nurture-it-address-to-the-sydney-institute-sydney

[21] Ibid.