Governments breaking the law? Not good for democracy

“People demand freedom of speech as a compensation for the freedom of thought which they seldom use,” according to the philosopher Kierkegaard.

There certainly is a lot of talk (which I suppose is appropriate) about freedom of speech, whether from anti-vaxxers or the latest crop of conspiracy theorists. There is, as Kierkegaard suggests, far less inclination to make use of the freedom of thought. But lack of thought is becoming an increasingly serious threat to all rights.

The first matter to think about is just what is fundamental to a democracy.

Most people seem to think it’s voting. And certainly, as nations where it doesn’t exist demonstrate, being able to cast a vote freely and have it fairly counted, is vital. How poignant it was to see black voters in South Africa queueing in 1994 for hours under a blazing the sun, to vote for the first time ever in a Presidential election.

A moving sight: black South African voters in 1994
queuing to vote for the first time in presidential elections

A counterexample is Trump’s attempts to restrict access to voting in the US this year, to make it hard for opponents to register a vote against him.

But, moving though those images from South Africa are, and impossible as it is to imagine American or any other democracy without free elections, the right to vote is still not the foundation stone of democratic rule.

Is it individual rights, such as freedom of speech or thought?

Again, it’s hard to conceive of a democracy without them. If you can’t speak out against government, the opposition can never set out its case. So the right to vote, if it exists at all, is hardly free. Russia’s a case in point.

Still, even that may be vital but isn’t fundamental. After all, freedom of speech can never be absolute. Even democracies ban the abuse of free speech: libel, incitement and conspiracy, are generally and rightly illegal. To give the old, iconic example, surely no one would defend the right to shout ‘Fire’ in a crowded theatre.

Well, unless there actually is a fire, of course.

I particularly value the protection of minorities in democracies. It’s obviously right that the majority should select the government, and through its majority, make law, but I’d like to see that happen with proper respect of the minority and its rights too.

That’s particularly true when it comes to minorities defined by permanent characteristics. Gays. People of colour. Anyone subject to persecution only for what they are rather than for anything they do. The Black Lives Matter movement is a legitimate answer to the continued denial to black people of basic rights enjoyed by others.

But even this key concept isn’t the foundation on which democracy depends.

That foundation is the rule of law.

This is the notion that the law applies to everyone. That’s whether it concerns actions it allows or actions it forbids. If I’m not allowed to travel from London to the North of England during a pandemic lockdown, then nor is anyone else, however rich or powerful he is.

Similarly, if I am doing something entirely legal, such as sleeping in my bed in the small hours of the morning, I should be safe from being shot by the authorities. Police who turn up at my house and fire their guns recklessly into it, shooting me in the process, have committed a crime and should be punished for it.  

Breonna Taylor: innocent victim, asleep in her bed, 
shot dead by police firing from outside her home in Louisville, Kentucky

What’s more, no government authority may arrest me simply because it doesn’t like my ideas, because my face doesn’t fit, or my face is the wrong colour. Legal action may not be taken against individuals, without good grounds to suspect them of genuine breaches of the law.

No one can be made the target of action by the arbitrary decision of the authorities. In other words, we don’t want law being made, or applied, only on the basis of the will of the authorities. On the contrary, the will of the authorities has to be subject to the law itself.

Why is the rule of law so much more vital than any of the others?

Because all the others are guaranteed by law. The right to vote, freedom of speech, freedom of thought and the protection of minorities are all ensured only by legislation. If government can start to break the law with impunity, then none of the other rights are safe.

That’s why it’s serious that Boris Johnson was so casual about his chief adviser Dominic Cummings breaking lockdown regulations to travel to Durham. The offence itself may not have been serious. What is central is the implicit claim by Johnson that he can decide, without reference to anyone, to tolerate illegal behaviour, simply because he has a personal relationship with the perpetrator.

What Johnson was calling for was the right to arbitrary power.

Now he’s decided to breach an agreement he himself made and signed with the European Union. He knows, as one of his own Ministers has admitted to Parliament, that this action breaks international law. But he intends to go ahead anyway.

Once more, he’s exercising arbitrary power.

We know that Trump is actively trying to undermine democracy in the United States. But Brits, shocked observers of Trump’s shameful behaviour, need to look closer to home too. Because what Johnson is doing is knocking out the very basic piece of the Jenga tower of all our rights.

If you want to protect our democracy, then Johnson’s flouting of the law has to be stopped and stopped fast.