“British Leader Seeks Public Housing Evictions for Rioters and Their Families” reads a New York Times headline from Aug. 12. It was Prime Minister David Cameron’s response to what his government said was the worst civil disorder in a generation.
The prime minister’s pronouncements both to the House of Commons and on television suggest a troubling disregard of what is the most basic axiom of any legal system – guilt is individual. No democratic nation today sanctions collective guilt. Yet the prime minister’s demeaning reference to “phoney concerns about human rights” implied that such claims are not to be treated as real.
His advocating that families be expelled from public housing if one of their members has committed a crime is not the creation of a brilliant new punishment, but a reversion to the ancient practice of a blood feud. By the time of the Old Testament, which called for “an eye for an eye and a tooth for a tooth,” the blood feud and collective punishment had been rejected.
The rule that guilt is individual is so deeply embedded in the concept of law that it does not appear in the United States Constitution; nor in the French Declaration of the Rights of Man, nor in the Universal Declaration of Human Rights, nor in the European Convention on Human Rights. It is a principle so axiomatic that every nation which possesses a system of law simply assumes it.
When the mafia executes an entire family, including wives, brothers, sisters and their children because someone in that family has betrayed them, we are appalled because it not only punishes the person who violated its code, but goes well beyond that in practicing the far more ancient, pre-law custom of blood guilt.
During the era of the Soviet Union the public prosecutor in a novel of that period argues that “hundreds of innocents should be condemned rather than allow one enemy to go free.” That kind of Soviet law argument rejected all that is encompassed by the term “the rule of law.” So too does a provision in the German Penal Code of the 1930s that gave judges the power to punish acts not prohibited by law. The judge needed only to find that the act offended “the sound sense of the people.”
If we ask, then, what is meant by the rule of law, the eight criteria suggested by the late Harvard professor and legal philosopher Lon Fuller provide a useful guide: (1) there must be rules; (2) the rules must be published; (3) they must be prospective, (4) intelligible, (5) free from contradiction, (6) possible to comply with, (7) not constantly changing, and (8) the declared rule and official action must correspond. David Cameron’s call to evict entire families for the acts of a single family member violates at least five of the eight criteria. It is not a ringing endorsement of the rule of law.
Just a generation ago in another troubled period across the Atlantic, Justice William Douglas wrote that “an overwhelming sense of futility possesses the young generation. There is in the end a feeling that the individual is caught in a pot of glue and is utterly helpless.” Britain is now passing through a similar period. Yet rather than seeking to calm the fury aroused by anarchic destruction, the government seems to be advocating collective guilt, which is a radical break from its historic rule-of-law tradition.
To talk of “phoney” human rights concerns and to advocate collective guilt and the eviction of entire families from public housing may or may not be good politics. But it amounts to a leader undermining the laws of his own nation, and implying that a European human rights treaty can be ignored.
For people around the world who look to Britain for guidance and leadership in legal matters, not to mention the British people themselves, it is a sad commentary.
Ronald Sokol is a member of the bar in France and in the United States. He practices law in Aix-en-Provence. He is the author of Justice After Darwin, Federal Habeas Corpus, The Law-Abiding Policeman and other books and articles. He gives an annual lecture on “What is justice?” at Imperial College, London.