Rule of Law: Guiding Principle

The question posed: Is the rule of law a guiding principle or a mere catchphrase?

For the United Nations, the rule of law is not just a guiding principle, but the guiding principle.

The UN states the rule of law is the foundation of friendly and equitable relations between states and the base of fair societies.

It is fundamental to international peace and security and political stability; to economic and social progress; to protect people's rights and fundamental freedoms.

The rule of law is an all-embracing concept.

Despite divisions worldwide, in 2004 Professor Brian Tamanaha stated there was global agreement the rule of law is a good thing

Support for the rule of law has been orthodox among Western states.

Other supportive statements have come from Vladimir Putin, Chinese leaders, Robert Mugabe, and others.

Diverse supporters of the rule of law may have different views from that espoused by the United Nations.

Differences are reflected in the academic debate on whether the rule of law should be formal (thin) or substantive (thick).

The thin or formal notions of the rule of law include requirements, such as clarity and non-retroactivity.

Proponents generally don't pass judgement on the content of laws.

Thick or substantive views include formal requirements, but engraft other requirements like democracy, human rights, and access to justice.

United States prides itself on being the oldest democracy and the land of freedom.

Isabel Wilkerson notes for the first 246 years, African-Americans lived under the terror of people who had absolute power over their bodies.

There was no sanction for atrocities they could conjure up.

In 1860, of the 4.4 million African Americans, approximately four million were slaves who were legally classed as property.

There was an almost 90% chance you were a slave and, therefore, legally classed not as human but as property.

It took a civil war, the deaths of 750,000, the assassination of a president, and the Thirteenth Amendment in 1865 to end slavery.

After Reconstruction, the federal government withdrew from the South, leaving liberated slaves in the hands of those who had enslaved them.

As Wilkerson says, these people designed a labyrinth of laws to put black citizens into indentured servitude, taking their voting rights to seize labour.

These laws became known from the 1880s as Jim Crow laws, after a character created by Thomas Dartmouth Rice.

Rice performed in blackface, acting like a buffoon and speaking with an exaggerated imitation of African American Vernacular English.

Jim Crow laws spread throughout the South and even to a degree in the North and basically legalised racial segregation.

Backed up by extreme violence against African Americans by individuals and organizations such as the Ku Klux Klan.

Perpetrators operated with impunity to large crowds of onlookers

Acquittals were rare and prisons provided another form of forced labor.

Segregation was present in every aspect of society.

African Americans were excluded from transportation, sat in remote corners of venues, and could not enter most establishments.

They prayed in specific pews, were educated in segregated schools and punished in segregated prisons.

The Courts were complicit right to the top concerning segregation laws

Segregation laws were given the seal of approval in 1896 by the United States Supreme Court decision of Plessy v Ferguson,.

Plessy v Ferguson concerned a Louisiana law segregating carriages on railways.

The Supreme Court upheld the constitutionality of racial segregation under the "separate but equal" doctrine.

Justice John Marshall Harlan famously wrote in his dissent “Our constitution is color-blind" and that “The arbitrary separation of citizens...is a badge of servitude".

The majority decision ensured the survival and expansion of Jim Crow laws.

It appeared that the extent of those laws wondered even the Nazi policy makers who were, in the 1930s, using them as their model

Wilkerson points out that, even for the Nazis, some of the American laws went too far.

She notes the rule where one drop of African American blood meant classification as black was seen as too harsh for the Nazis.

Jim Crow laws remained in place for some 100 years and are often taken up by the civil rights movement after World War II.

Their dismantling has not meant equality.

Some of the restrictive laws have resurfaced but in another form.

Voting rights are focused on because of the importance of democracy in some conceptions of the rule of law.

According to the World Economic Forum, the United States is classified as the oldest democracy in the world, clocking up some 219 years as at 2019.

Democracies have to be continuous in order to count.

The definition of democracy requires an executive directly or indirectly elected in popular elections and responsible either directly to voters or to a legislature.

The legislature must be chosen in free and fair elections and a majority of adult men must have the right to vote.

The United States only granted the vote to women in 1920.

Slaves could not vote, although the United States could still claim that a majority of men could vote.

The passage of the Fifteenth Amendment in 1870 guaranteed the right to vote to men of all races, including former slaves.

During the Reconstruction era, black voter turnout in many elections exceeded 90%.

Registration rates surpassed white registration rates in Louisiana, Mississippi and South Carolina.

In States such as Alabama and Georgia, black citizens made up nearly 40% of all registered voters.

Southern states began implementing policies to suppress black voters, leading to a reduction in black voting.

One main way to disenfranchise voters was poll taxes to pay a fee before voting

Another was literacy tests to examine reading ability

These measures were designed to affect black voters and succeeded in almost total disenfranchisement.

The laws were outlawed with the Voting Rights Act in 1965.

A 2018 report of the United States Commission on Civil Rights would suggest voter equality in the United States has not happened.

The report concluded that in states, there are voting procedures to prevent some voters - including voter identification laws and voter roll purges

These measures have a disparate impact on voters of color and poor citizens.

Various laws have been introduced by Republican-dominated state legislatures after the last election purportedly to deal with voter fraud.

The provision in Georgia prohibits anyone but a worker at a polling place from handing out water within 150 feet of a polling place or within 25 feet of the line.

The consensus seems to be that the provision is not so limited

Long queues to vote are the norm largely only in black and poor neighborhoods.

Felony disenfranchisement in the United States is estimated to deprive 6.1 million citizens of the right to vote, disproportionately affecting African Americans.

Then-president, Donald Trump, dismissed a Democrat-led push for vote-by-mail, same-day registration and early voting designed to keep voters safe during COVID-19.

Gerrymandering was coined in reaction to an 1812 bill which redrew the Massachusetts state senate election districts to benefit a particular party.

This was signed by Elbridge Gerry, later Vice President of the United States.

The term gerrymander stuck.

Gerrymandering remains a thorny issue, especially with the upcoming redistricting cycle this year.

The Supreme Court has refused to deal with the issues, holding partisan gerrymandering a political question beyond the reach of the federal courts.

Little headway has been made with voting rights reform at the federal level.

Courts have been accused of being complicit, with a number of Supreme Court decisions neutralizing aspects of the Voting Rights Act.

New Zealand has prisoner disenfranchisement laws.

These laws disproportionately affect Māori as they are overrepresented in prisons.

There has been a poll tax which was not designed to suppress voting but to restrict Chinese immigration.

Passed in 1881 pandering to anti-Chinese sentiment and followed the lead of Australia and Canada.

Literacy tests were used as well.

From 1907 up until 1952, all arrivals had to sit an English reading test as part of restrictions to Chinese immigration.

The poll tax was not repealed until 1944, although its use had diminished in the 1920s.

The New Zealand government formally apologized to the Chinese community in 2002 for the injustice of this tax.

The law has a lot to answer for regarding treatment of Māori, despite the guarantee to Māori of unqualified exercise of chieftainship over their lands.

These guarantees all gave way in the face of the hunger for land from the colonising English settlers.

Substantial areas of Māori land were confiscated after the Land Wars under the New Zealand Settlements Act 1863.

In confiscating land, the government did not discriminate between tribes who had fought against the government and those who had fought as government allies.

Continued with the establishment of the Native Land Court under the Native Lands Acts of 1862 and 1865 to investigate titles to Māori land.

In practice, however, virtually all land still in Māori ownership in 1865 was brought before the Court and converted to freehold title.

The result was individualised titles that took little or no account of the collective nature of Māori society.

In traditional Māori society, land was not something that could be owned or traded.

Māori belonged to the land and it formed an essential part of their collective identity

About ⅔rds of Aotearoa passed out of Māori hands (including virtually the entire South Island) primarily through the pre-emptive purchases by the Crown.

Māori freehold land comprises slightly over 1.4 million hectares which is approximately five percent of New Zealand's land mass.

Treaty settlements have only restored a fraction.

Māori women, if anything, fared worse than Māori in the native titles debacle.

The Native Land Act 1873 provided that husbands had to be party to all deeds executed by married Māori women.

Land alienation had profound effects on Māori society as it destroyed the collective relationship of the whanau to the land.

There are serious effects which are felt today with inequalities in health and massively overrepresentation.

A definition of the rule of law that limits itself to merely formal requirements cannot be supported.

All laws must recognise basic human rights.

It is recognised that the rule of law is only one of the virtues by which a legal system may be judged.

Regimes that do not respect fundamental freedoms cannot be ‘complying with the rule of law' by merely formal compliance.

The World Justice Project has a soft spot where the definition is based on four principles: accountability under the law, just laws, open government and access to justice.

Under the umbrella of its definition the project uses eight particular factors in an index designed to measure adherence to the rule of law

This means that legislation will be interpreted consistently with treaties to the extent that the words and purpose of the statute allow.

New Zealand’s law is subject to international law obligations, including international human rights obligations

International obligations are part of the values, norms and principles to be taken into account when developing the common law.

Concentrating in particular on the position of the Treaty and tikanga in our law.

Tikanga has been recognised by the Supreme Court as a relevant factor to be considered by an executor

One of these requirements is that the custom cannot be part of the common law if it was repugnant to justice and morality.

The imperial eye law was pre-eminent among the gifts of an expansive civilization.

References to tikanga have started appearing in statues; it also is a relevant factor for an executor or for whether it should proceed from the death of a person.

There is the concept of legal pluralism, where two or more legal systems exist in the same State, raising conflict of law issues

There is concern that incorporation in the common law may end up distorting tikanga.

There is the issue of working out the proper approach to reconciling collective and individual rights.

It is recognised that distortion is not for the courts but that any distortions are for Maori women to address in the appropriate manner.

This would require a wholly different education and mindset, which take into account sources well removed from written sources.

There is the indigenising of legal education, where a first of its kind program combines Canadian law with Indigenous law in Canada.

It has been suggested that an inquisitorial methodology may be better suited to dealing with tikanga issues.

Mechanisms available for questions of tikanga for referring to the Maori Appellate court or for appointing pūkenga.

Decolonisation means that the rule of law is only to be considered a work in progress.

The rule of law is a guiding principle as long as it includes human rights, access to justice, and redress.