Few terms bring a happy smile onto a political scientist’s face as readily as does ‘the rule of law’. I don’t quite get this.
Rather than being the ultimate political virtue, the rule of law strikes me as a cliché short of an adjective. And the adjective it’s short of is ‘just’, which should modify ‘law’.
In its absence, the implication seems to be that the rule of any old law is to be praised. That’s demonstrably not the case. In fact, one could argue that even the worst tyrannies are ruled by law.
For example, during its most carnivorous period the Soviet Union had a vast and intricate legal code. It included an article that provided for the execution of anyone undermining – or capable of undermining – the regime. That meant more or less anyone the state might wish to kill, which was the whole point.
That law was unjust any way you look at it, but I suggest we choose just one of those ways because it should suffice. That law was open-ended, which was by itself enough to make it despotic.
An open-ended law, one where the exact boundaries of the proscribed transgression aren’t meticulously specified, is ipso facto tyrannical because it leaves room for arbitrary prosecution. And that room is the kind of vacuum that’s guaranteed to be filled in any modern country.
Just law thrives on precise definitions, which puts it out of reach of our present government, made up as it is of either fools who can’t, or knaves who won’t, define things precisely. It’s comforting to see that Sir Keir Starmer’s personality is voluminous enough to accommodate both types.
Defining things precisely, indeed at all, isn’t Sir Keir’s most salient forte. For example, he tends to struggle with the definition of a woman, a task that wouldn’t defeat a babe in arms who has just learned to say ‘Mama’ and ‘Dada’. Nor is Sir Keir capable of identifying the proper owner of the appendage the same tot would probably describe as Dada’s weewee.
When the PM applies his semantic toolkit to more involved concepts, they fall apart before our very eyes. This collapse occurs even in the area of his professional expertise, jurisprudence. And when top public officials are at sea with legal concepts, the ship of justice heads for the rocks of tyranny.
To illustrate this point, the Labour MP Tahir Ali asked the prime minister yesterday if he would commit to “prohibiting the desecration of all religious texts and the prophets of the Abrahamic religions”.
I have to commend Mr Ali on his verbal dexterity. The way he worded the question one was supposed to get the impression that he afforded equal time and equal protection to Christianity, Judaism and Islam.
That got Mr Ali clear of any accusation of religious particularism and successfully concealed the kernel of his real message. However, Sir Keir displayed uncustomary mental acuity by responding to the kernel, not the outer shell.
“We are committed to tackling all forms of hatred and division including, of course, Islamophobia in all of its forms,” he said. The conspicuous absence of a bow towards the other two Abrahamic religions shows that Sir Keir got the message.
Alas, his vow is a contiguous open end. In fact it’s so open that much hot air escapes and nothing but.
Even Sir Keir isn’t so vague as to express merely a blanket dislike of hatred in general and hatred (that’s what ‘phobia’ means in woke but not in English) of Muslims in particular. He meant that his government was going to push through a law making Islamophobia illegal.
Since the word ‘phobia’ means irrational fear, it’s not immediately clear how it’s possible to legislate against irrationality, but then I did tell you Sir Keir was speaking woke, not English. In that convoluted language, we have no choice but to accept his understanding of Islamophobia in all its forms as one of all the other forms of hatred and division.
However, before any society, and especially one that describes itself as free, agrees to translating such general understanding into a specific law, it must demand that the crime be precisely defined.
Now, Labour’s national executive committee did adopt a definition of Islamophobia in 2022. Since Sir Keir hasn’t so far disavowed it, one has to assume the definition is still in force. According to it, Islamophobia is “rooted in racism and is a type of racism that targets expressions of Muslimness or perceived Muslimness.”
Now this is an open-ended definition if I ever saw one. What if Islamophobia were rooted not in race but in religion? Would someone be in the clear if he shouted at a group of Muslims that there is a God other than Allah and Mohammed isn’t his prophet? What about a wag asking a Muslim woman in jest to get her face out for the lads?
We already have a whole raft of laws against violent attacks on, well, anyone, including religious and racial groups. Hence the mooted legislation would just repeat what’s already covered by existing laws. For example, it would be superfluous to pass a law prohibiting violence against Muslims because we already proscribe attacks on all people regardless of race or religion.
The time-tested method of elimination thus suggests that what Labour has in mind is a law criminalising not actions but words. That digs the taxonomic hole even deeper.
After much soul-wrenching and hand-wringing, successive governments have only been able to define hate speech as something perceived as such by its recipient. In theory, I could have you arrested for calling me ‘Alex’, rather than ‘Alexander’, ‘Mr Boot’ or ‘Sir’ if I regard such egalitarian familiarity as hateful.
The whole thing about the law is that it’s passed by an authority extrinsic to potential victims. Grievous bodily harm isn’t illegal because the chap with the broken nose says so but because such is the law of the land, passed by the land’s duly constituted legislative body, the same law for everyone living in the land.
By the same token, one Muslim may react to a perceived insult of his religion by shrugging his shoulders and another by whipping out a machete. So is that same insult Islamophobic in some cases and not in others? If a law doesn’t apply to everybody, it applies to nobody.
This is the real problem with such laws, one that’s more serious than even the implied curb on freedom of speech. Not every restriction of speech is unequivocally tyrannical, but every open-ended law is.
Sir Keir’s intention to criminalise “Islamophobia in all of its forms” is unvarnished despotism in the absence of a precise and equitable definition of each form. Considering that vandalism laws already prohibit the abuse of public and religious buildings, and many different laws criminalise assault on person and property, the task of drafting such definitions won’t be easy.
I think the government should travel a well-trodden path and simply state that Islamophobia is anything any Muslim says it is. And never mind exponents of the other Abrahamic religions: Christians whose religion is routinely offended by all and sundry, and Jews who are attacked in our streets more often and more violently than Muslims (and usually by Muslims).
Just as long as we understand that what we are witnessing is an exercise in glossocratic tyranny, not genuine concern for the down-trodden. And in conclusion let me ask Sir Keir another question to struggle with: What’s a Muslim? And can a dark beard be seen as “perceived Muslimness”? Especially if sported by a woman, however defined?
I just wish he pondered such conundrums as far away from Westminster as possible. May I suggest Patagonia?