Is the ‘rule of law’ oversold?

When members of the legal profession talk about ‘upholding the rule of law’, one can often leave a lengthy message after the high moral tone. It is publicly invoked to protect human rights and to uphold contracts – things that keep the world decent and turning.

But is too much claimed for ‘the rule of law’? Cambridge law academic and former MP David Howarth finds it somewhat oversold. Do we not simply mean ‘compliance’ has been achieved, he asks? Are we not wrong to conflate compliance with high ethical standards?

Answering him is not just an exercise for a rainy day in an ivory tower. Howarth points to important examples of where the ‘compliance’ mindset has led lawyers astray, notably in the creation of the complex financial instruments that unraveled so dramatically with the financial crisis of 2008.

A greater stress on comprehending the context and environment in which advice is delivered would result in better, ‘safer’ legal advice. This is what engineers are required to do, he argues, and lawyers would do well to emulate their approach. In the absence of such efforts, lawyers are in no position to claim the moral high ground.

Howarth’s academic and political support for human rights is rock-solid and well documented, so it is difficult to dismiss his critique as part of an industrial, depersonalised view of the law. He has started a debate worth having.