Can a rule be less arbitrary if it is imposed by parliament rather than by the police?

GIOVANNI BIRINDELLI, 15.1.2021

In a truly beautiful article, Jonathan Sumption (a former judge of the UK supreme court) makes two statements.

The first is that today the UK is a police state: “What is a police state? It is a state in which individuals are answerable to the police for the most routine acts of daily life. It is a state in which the police and not the law decide what is allowed. It is a state in which people have to hide their doings from their neighbours for fear of the twitching curtain and anonymous call to the police. It is a state in which ministers denounce activities of which they disapprove and the police are their compliant instruments. … We are unfortunate to live at a time of national hysteria, when that tradition [of of rule of law] has been cast aside and every one of these classic symptoms of a police state can be seen all around us”

The second statement is that a police state is opposite to the rule of law: “If the law says that it is reasonable to go out to take exercise, it is not for a policeman to say that it isn’t. If the law does not forbid driving somewhere to take exercise, then it is not for the police to forbid it. … It is not the function [of the police] to enforce the wishes of ministers. It is not [its] function to do whatever is necessary to make government policy work. [Its] function is to apply the law. If the law is not tough enough, that is not a matter for them but for ministers and Parliament“.

While the first statement is not problematic, the second one in my opinion is.

The differences between a police state and the rule of law obviously depend on what one means by “law”. For example, if by “law” one means the decision of the police, then the police state and the rule of law are obviously one and the same.

By “law” Mr. Sumption does not mean the arbitrary decision of the police, but that of parliament (“the law is a matter for ministers and parliament”). However, would the ban on outdoor exercise be less “unreasonable” (or less arbitrary) if the parliament had imposed it rather than if it had been enforced by the police? If the “law” is the arbitrary decision of parliament, how can the individuals be protected against arbitrary (and potentially “unreasonable”) coercive impositions?

If by “law” one means the arbitrary decision of parliament (as Mr. Sumption explicitly does), then a police state is not opposite to the rule of law but just a procedurally different form of the same positivist paradigm, in which the law is the arbitrary decision of an authority (whether elected or not is irrelevant in relation to the arbitrariness of the decision). On the contrary, if by “law” one means a non-arbitrary rule which exists independently from the authority and its decisions, then the rule of law and the police state are in fact opposite to one another, and mutually exclusive.

In other words, the rule of law is a concept that makes sense only in opposition to the rule of men. However, both the rule of parliament and the rule of the police are different forms of the rule of men (i.e. of positivist law).

In order for the rule of law to be opposed to the rule of men (and therefore to make any sense), the law in question must therefore be non-arbitrary.

Is there such a non-arbitrary law? Is there a rule of just conduct (i.e. a rule of individual conduct whose violation it is believed to justify the recourse to legal coercion) that is non-arbitrary?

So far, only one such rule has been discovered. This is the Non-Aggression Principle (NAP). This is non-arbitrary because, unlike any other kind of rule of just conduct, it is logically compatible with the principle of equality before the law. Being logical and logically consistent, such compatibility is non-arbitrary, and therefore the NAP itself is. In this sense, the NAP is a “natural law”, independent from (and actually pre-existing) any authority and its decisions.

In conclusion, rule of law and police state are opposite only if the law is the Non-Aggression Principle and therefore if state action is judged on the grounds of the same moral standards of individual action (e.g. if taxation is considered to be extortion).

Having a different (positivist) idea of law, in assuming that the rule of law and the police state are opposite Mr. Sumption is logically wrong.