When the Rule of Law Becomes the Rule of Lawyers

In simpler times, at least in the leading democracies, it was the government that ran the country, the parliament that made the laws, and the courts that decided what was illegal. In Westminster systems, the executive was formed in the legislature and generally controlled it. And the executive has normally nominated judges and often determined whether they’re appointed. Because each arm of governance generally respected the prerogatives of the other, the system more-or-less worked: governments got things done; legislators co-operated with each other “across the aisle”; the civil service was responsive to the government of the day; and courts didn’t try to second-guess governmental decisions.

That’s not how it is now. Election results aren’t respected, as in the America of Trump and Biden. There are revolving-door prime ministerships, as in Britain and Australia. Unelected officials often seem to be in charge, sometimes because voters prefer it that way, as in the pandemic; and sometimes because the administrative state seems impervious to democratic direction, as in the botched implementation of Brexit. And, in particular, prosecutors and courts often seem to be the agents of injustice rather than justice.

“Things fall apart, the centre cannot hold, mere anarchy is loosed upon the world”, one might say. Yet for liberal democracy to work, as John Howard often said, the things that unite us should be bigger than anything that divides us.

These aren’t the first times the social fabric has been under strain: economic deprivation, during the Great Depression; and lingering institutional racism and opposition to government policy, during the 1960s, sometimes brought cities and even countries to the brink of civil disorder.

But these times feel different, and more dangerous than anything since the 1930s. In the face of deep challenges—from a militarist dictatorship in Moscow, from an Islamist dictatorship in Tehran, and from a communist dictatorship in Beijing—the Western democracies are feeble and divided, having militarily, industrially, and even culturally disarmed in the years since their seeming triumph in the Cold War against the old Soviet Union.

This is a “civilisational moment” because others clearly don’t believe in us, as they were supposed to after the “end of history”; and we no longer quite believe in ourselves, despite all the objective evidence about the merits of the Western achievement.

One of the reasons why Russia is now slowly grinding down gallant Ukraine is because Ukraine’s friends in the West have helped it enough to avoid defeat, but not enough actually to win: partly from fear of what a humiliated nuclear-armed tyrant might do; partly through internal division over the extent to which other people’s well-being is our business too; and partly through resistance to the industrial mobilisation needed to match an economically-declining but geopolitically-driven dictatorship.

After initially being the largest non-NATO contributor to Ukraine’s defence, primarily through the delivery of some hundred Bushmaster armoured vehicles and by helping to train in Britain the Ukrainian infantry, Australian support has now almost dried up; with even a recent request for coal refused, presumably because that might add to the temperature in Kyiv.

Likewise, one of the reasons why Israel is bogged down in Gaza, hesitant to destroy the Hamas leadership, is because its friends can’t quite grasp the moral distinction between a liberal democracy prosecuting a just war against a terrorist statelet pledged to its destruction, and an apocalyptic death cult that uses civilians as human shields. Somehow, civilian deaths in Gaza are not the fault of the terrorists who put command centres and military stores underneath schools and hospitals but of the Israeli defence force, even though it’s been far more fastidious about avoiding civilian deaths than Bomber Command ever was. In a further perversity, global institutions, invoking bogus morality, have bid to arrest both Israel’s and Hamas’s leaders for war crimes; and to restrain the actions of Israel but not Hamas.

This is the moral confusion arising from the Left’s long march through the institutions, with a generation of students conditioned to see issues in terms of oppressors and oppressed, with Israel damned as a settler state with “white privilege”. And thanks to a generation of permissive immigration there are now Islamist sub-cultures within Western countries for whom sectarian solidarity is what matters most.

This growing conviction of the democracies’ decadence is emboldening Beijing in its intimidation of practically independent Taiwan.

They doubt our will to resist: partly because of the economic cost of de-coupling from China; partly because US commanders now question their ability to win an air-sea battle in the Taiwan Straits; and partly because societies that have had it so good for so long are simply unprepared for a potentially existential struggle, even on behalf of a country like Taiwan that testifies to the universal appeal of the Western way of life.

It’s telling that for the first time since the ANZUS treaty in 1951, Australia has just refused a US request for military help, declining to send a freedom-of-navigation frigate to the Red Sea. Our government is using its commitment to AUKUS submarines a decade hence to mask cuts to our fighting capacity now. Rather than admit to an instinctive pacifism, it would prefer to tell our allies that we’d like to help if only we could.

This general decline of the West is the dispiriting background to any discussion of the way particular institutions, like the courts, have been corrupted; and the rule of law, a safeguard against the capricious exercise of power, has been degraded into the rule of lawyers.

People have never had more access to information, yet rarely been so ignorant; never been more materially rich, yet rarely more culturally and spiritually bereft. And whatever might distinguish today’s leaders—in business, the academe, the law, the military, and the church, no less than in politics—it’s rarely character, conviction and courage.

Historically, at least in the Anglosphere, our most iconic institutions have worked for the protection of society against the state, and for the freedom of the individual against oppression. “Be you ever so high, the law is above you”, insisted the jurists and parliamentarians against the Stuart kings. “No taxation without representation”, insisted the American colonists against the British government. From centuries of trial and error, the king was under the parliament, the parliament was under the people, the people were under the law, and the law was under God—or at least some concept of the common good.

At its zenith, there was an expectation of humility. Even for exalted people and institutions, our pride was supposed to vest in the things beyond ourselves; an attitude most wonderfully conveyed in the statement of our late Queen on her twenty-first birthday when she vowed: “my whole life, be it long or short, shall be devoted to your service and that of the great imperial family to which we all belong”.

Our general malaise is not confined to the use of the law as a sword, not a shield, but that’s a key measure of it.

There’s the judicial and institutional harassment of President Donald Trump, from the US security chiefs’ public insistence that the Hunter Biden laptop story was Russian disinformation, to the abuse of judicial process on charges that are trivial, exaggerated, or (in the case of removing classified documents) could as readily be laid against his opponent.

Rather than the final nail in his political coffin, though, their effect has been to galvanise his supporters and make his opponents look as if they can’t beat him fair and square, in debate and at the ballot box. They’ve helped to turn a very flawed candidate into an object of sympathy, while further eroding respect for institutions.

A more sinister abuse of process, against a far more worthy character, has taken place in Australia. Cardinal George Pell was the first Catholic bishop to take decisive action against the plague of clerical sexual abuse, sacking wayward priests and reporting them to police rather than moving them to another parish and hoping they’d see the error of their ways. He set up the first formal mechanism to compensate victims without the need to go to court. While himself a pastoral priest, he was also an entirely orthodox churchman who occasionally questioned modern secular pieties like the climate cult.

In the absence of any specific evidence against him, Victoria Police set up a formal investigation into the Cardinal and even advertised for complainants. Eventually, a charge was brought without credible evidence; a conviction was finally secured after a hung jury at the first trial; and an initial appeal failed; before the High Court unanimously dismissed the charges against an innocent man who’d been made a judicial scapegoat for the crimes of others.

In the words of one of Pell’s critics, the Jesuit lawyer Father Frank Brennan:

The case against Pell was nothing more than an appalling police sting operation, protracted by grossly erroneous judicial reasoning by Victoria’s two most senior judges. Thankfully, his prison journals revealed a Christian grace in the midst of adversity and profound injustice.

Both the senior police officers in charge of the Pell case subsequently became police commissioners, and the two senior Victorian judges remained in their posts despite their professional humiliation.

But Pell’s is just the most serious case of religious persecution. The Tasmanian human rights watchdog began legal action against the Archbishop of Hobart for a pamphlet defending marriage as between a man and a woman. Taxpayer-subsidised trans-activists complaining under anti-discrimination law have bogged down a former head of the Australian Christian Lobby in two years of expensive legal jousting.

Even though the rights bureaucracy is plainly more concerned about the rights of some than others, there’s been no real attempt to rein it in. Indeed, my government’s brief attempt to make anti-discrimination law less injurious to free speech caused party-room unrest (either for going “too far” or “not far enough”) as this is yet another issue on which the conservative side of politics divides into more “conservative” and more “progressive” camps.

As well as persecuting those who offend against the canons of political correctness, the law is also now used to frustrate the decisions of government, in favour of Green fanatics who won’t take no for an answer. The Adani coal mine in Queensland was held up for a decade by environmental and native title court challenges, which ultimately failed to stop it, but which drastically reduced its scope, as the overseas investor spent billions before being able to receive any return.

Under Australian administrative law, courts can review ministerial decisions if the decision-maker has failed to take into account “a relevant consideration”. And under environmental law, Green groups can bring court actions without a direct interest in a case.

A Northern Territory offshore gas development, which had passed the most stringent environmental tests, was recently blocked by a sudden claim that it would interfere with the “crocodile dreaming” that had been attested to by a senior university anthropologist, even though Australian Aborigines have never been a maritime people. Eventually, the judge scathingly dismissed the objection, as tantamount to academic fraud, but not before the proponent had lost a reported $800 million. An even bigger gas field off the coast of Western Australia faced a last-minute hold-up because of an alleged failure to consult with one Aboriginal person, even though all the official indigenous representatives had been consulted.

Both these cases were brought with the support of the Environmental Defenders Office, an activist legal NGO, which, along with another such organisation, Environmental Justice Australia, the current government has just funded to the tune of $10 million over four years. Hence taxpayers are funding court cases that will make their own burdens heavier, because they end up frustrating fossil-fuel developments that would add to employment and revenue.

And the government is funding an entity that works to frustrate the decisions of government. The government wants to have it both ways: to say that it’s in favour of development to one audience; while to another, funding the entities that frustrate development.

What’s happened over recent decades is a tendency for unelected and unaccountable judges to insert themselves into political decision-making on the assumption that their decisions are “untainted” by politics and thus superior to those of elected and accountable ministers. Activists with a monomaniacal objection to fossil fuels are using the law to win through the courts what they could never win through the political process. They’re exploiting the judiciary’s own leftist mindset after a couple of decades of judicial appointments, mostly by Green-Left Labor governments.

Because the “process is the penalty”, the best remedy would be a government that changed the law to ensure that endless legal nitpicking can’t stop a project that has met all reasonable objections. But whether it’s changing Australian law to prevent people without a specific interest bringing an action; or whether it’s just routine reiteration that the world needs our resources, so we have a duty to make them available while they’re wanted, successive governments have been reluctant to alter the status quo.

The stumbling block has been the perception that legal processes are sacrosanct and that environmental protection is a higher cause. Even though some legal processes, like those utilising the European Convention on Human Rights to stymie British border protection, as if European jurisprudence is superior to British justice, are plainly meant more to thwart the elected government than to protect anyone who’s being oppressed. And even though environmental protection and the rights of foreigners should be balanced against economic advancement and the rights of citizens, if respect for law and legal process is to be maintained.

This abuse of the law to make political points is another example of the myriad problems that arise when people are ignorant of their own story, fail to understand how their culture has evolved, and haven’t grasped how society is a trust between the dead, the living, and the yet-to-be-born.

Respect for all cultures other than our own is now the mark of most Western countries. In Australia, for instance, there’s now no prime ministerial press conference that doesn’t take place in front of three flags: the national one, plus the Aboriginal and Torres Strait Islander ones. Institutions that wouldn’t dream of toasting the King at a formal dinner, or beginning any official proceedings with a prayer, now routinely begin their activities with an acknowledgment of the traditional indigenous owners, as if that’s the only cultural inheritance that matters; and even though Christianity, or “the coming of the light”, is almost certainly more important to more indigenous people than ancestor worship.

Until we have elected leaders brave enough to drop the pieties that imply that our country belongs to some of us more than to all of us; and to stop flying the flags of some of us co-equally with the flag of all of us, there’s really no hope of reversing the cultural decay that’s behind the abuse of legal process and much else.

Are we collectively capable of recovering the historical memories and cultural self-confidence required to face this civilisational challenge? Sterner times could soon force us to rediscover our better selves.

Tony Abbott delivered this speech to the Danube Institute in Budapest in May.