Don’t let retrospective rules put out the lights

THE laws of physics have apparently been reinstated. The suggestion from Cern at the end of last year that neutrinos could travel faster than light sent our models of the universe atremble – but Cern, having turned everything off and on again, now puts the effect down to some faulty wiring.

The rule of law, on the other hand, has started to defy physics. The government this week effectively sent a law back in time to prevent an existing tax avoidance scheme from having ever been born. While the government has reserved the right to act retrospectively in these circumstances, such power is not honoured by its exercise. Law is lawless if it is not predictable.

It’s hard to remember now a time when London was not a lawful place. In the opening of Joseph Conrad’s classic novel Heart of Darkness, Marlow looks out at the Thames and says to his companions “this also has been one of the dark places of the earth.” He is referring to the Britain the invading Romans found two thousand years ago – a dark, cold land far from the Italian sunlight that must have looked to them like the mythical Cimmeria, “enshrouded in mist and darkness which the rays of the sun never pierce, but the poor wretches live in one long, melancholy night.”.

After conquest, the Romans drew Britain into their own networks of law and trade, helping to transform the country. But then the Roman empire retreated and lawlessness returned. It took generations for such a developed legal order to be restored. Still, by the eighth century, the father of English history the Venerable Bede refers to London as “the mart of many nations, resorting to it by sea and land.” London has been a market to the world ever since, for more than a thousand years, and while that status has sometimes had to be defended, it always rested on the certainty and stability afforded to merchants, citizens and businesses by the rule of law. It is no surprise the phrase was popularised for modern use by a British jurist, a man called Albert Dicey, in the nineteenth century.

Yet having so long a legal tradition is not only a blessing. It is generally accepted today that helping developing countries to establish the rule of law is critical to their continued growth and success, but we are more cavalier at home. Among the critical principles of the rule of law is that the law should be such that people will be able to be guided by it. Predictable regulation, that does not bend back over itself in time to punish what was legal, that does not change incessantly or grow unchecked, is the basis for justice and prosperity. It is a rare gift, and both justice and prosperity have been rare in the history of the world as a result.

The rule of law, as reliable a basis to build an enterprise upon as the constants of nature, is not to be tinkered with lightly. As Marlow goes on to say in Conrad’s novel, the light of civilisation “is like a running blaze on a plain, like a flash of lightning in the clouds. We live in the flicker – may it last as long as the old earth keeps rolling! But darkness was here yesterday.” There’s no point in plunging ourselves back into darkness. Watch out for the wiring.

First published: City A.M., 2/3/12

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