Rumble in the legal jungle
“For English jurisprudence has been and still is predominantly analytical in character….”
The Province of Jurisprudence Determined, (1954:XVI)
A lengthy legal saga, some would even argue to call it a legal thriller, unfurled in the UK when the European Court of Human Rights (“ECHR”) issued in its legal decision Hirst v UK that the UK's blanket ban on voting by convicted prisoners as encapsulated in the Representation of the People Act 1983 breached Article 3 of Protocol 1 to the European Convention for the Protection of Human Rights. The judgment unleashed immediate constitutional ramifications for the UK jolting the institutional arrangements of the country.
Britain obstinately defied the judgment and subsequent ones and some members of the parliament even threatened with what I would - with the benefit of the hindsight - call a Blexit, a hard rupture from the European treaties. For legal connoisseurs reading the parliamentary debates, consultation documents, position papers and the argumentative volleys back and forth pertaining the Hirst v UK decision and the contentious controversies and emotions it stirred up is quite entertaining. It was less entertaining for Mr. David Cameron, the now former Prime Minister of the UK, who said in Parliament in 2010, 'It makes me physically ill even to contemplate having to give the vote to anyone who is in prison.'
A whirling dervish dance around question marks
The UK Government had argued extensively in front of the European bench that taking away voting rights for the duration of a prison sentence was part of the punishment. Only Westminster and not Strasbourg had the prerogative to determine this. The government argued that “Convicted prisoners had breached the social contract and so could be regarded as (temporarily) forfeiting the right to take part in the government of the country.” (Hirst v UK, no. 2, section 50) and therefore the law served a legitimate aim and was proportionate. This ‘civil death’ reasoning is a concept that stretches back to antiquity.
The Court disagreed, saying in particular that an “general, automatic and indiscriminate restriction on a vitally important Convention right” (section 82) was incompatible with art. 3 Protocol 1. Much of the criticism in the UK concerned the fact that the Court did not respect the sovereignty of Parliament in such matters, saying that such an issue should be decided by the democratically elected national parliament rather than by a European court.
Positioning and posturing
I myself concur with this landmark decision on prisoner disenfranchisement and reject the simple version of Westminster-based parliamentary sovereignty precepts. I wholeheartedly agree with the ECHR when it invalidated a “purported” act of parliament disenfranchising prisoners from their voting rights via a general and blanket ban. This right should be left unharmed and unscathed by national legislation.
The first argument I proffer to ascertain my opinion is that in a democratic society political franchise and universal adult suffrage is a human right. Although human rights law allows some restrictions on the right to vote, such restrictions must be reasonable. Denying the vote to a citizen is robbing and divesting him or her from dignity and personhood.
Contemporary debates in legal theory are dominated by three theories with contrasting approaches and their own rigorous virtues namely legal positivism, natural law and legal realism. All three of them though failed to provide a settled freeze-frame as to the nature and area of study of jurisprudence.
In my opinion natural law theory can be plausibly deployed to defend the argument that a in a democratic society political franchise and universal adult suffrage is a human right. The legal maxim originating from Augustine of Hippo (354-430 CE), later used by Thomas Aquinas (1225-1274 CE) and quoted by Martin Luther King Jr. (1929-1968 CE) during the Civil Rights Movement lex inustai non est lex i.e. an unjust law is not law at all.
Even though this view is strongly associated with natural theorists, modern natural law theorists such as John Finnis (born 1940) do not endorse this view. He lambasted this view in his Natural Law and Natural Rights, and argued that the proverb ‘an unjust law is not a law’ doesn’t in any way characterize the deep trenchant tradition of natural law thought.
Natural law provides enduring structures of meaning and value in jurisprudence. Natural law theory is a mode of systematically and rigorously thinking about the connections between the cosmic order, morality, and law, which, in one form or another, has been around for thousands of years. It started from antiquity when Aristotle (384 – 322 BCE) postulated that it is natural law which ‘everywhere possesses the same authority and is no mere matter of opinion’. It resonates by the great Roman orator Cicero (106 – 43 BCE), who taught that ‘Nature herself has placed in our ears a power of judging’. It was the view of Aquinas for whom the natural law was ‘the participation of the eternal law in the rational creature’. And it can be found in the legal theory of today’s natural lawyers such as John Finnis who view law from the perspective of its ultimate moral function which is taken to be the ability of law to co-ordinate human activity for the common good.
The ECHR rightly stated that the UK was a party to Protocol 1 to the European Convention on Human Rights, a treaty binding on states in international law. Article 3 provides rights to free elections "The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."
This does not sound like a strong assertion of a universal right to vote, but the ECHR interpreted it in the light of other human-rights treaties, including Article 25 of the International Covenant on Civil and Political Rights (1976), to which the UK is a party, and of the constitutional traditions of member states of the Council of Europe.
On this basis, the Court held that there was a right to universal adult suffrage unless there is a legitimate justification for restricting a particular person's right to be a candidate or an elector: Mathieu-Mohin and Clerfayt v. Belgium (1987). To establish such a justification, a state would have to show that the restriction served a legitimate aim and was proportionate to it.
In the light of the above we can conclude that close reading of the legal decision brings one to believe that the ECHR’s ruling is best understood in the light of natural law theory. Natural law states that law can’t violate certain moral codes. Human law should be based on certain eternal universal principles, which are in accordance with nature and reason, and ultimately based on the nature of human beings. A legal system is recognized as having a substantive ethical purpose.
Legal positivism dominated by the work of H.L.A. Hart (1907- 1992 CE)) and Joseph Raz (born 1939) argue for a strict conceptual separation of law and morality. In this case it would do not do the trick. Though a dyed in the wool legal positivist might argue that by virtue of its sovereignty in international law, the UK is entitled to enter into treaties and that abiding to those treaties is an exercise by the UK of its sovereignty. Like any other contract, a treaty is made to be obeyed: pacta sunt servanda. Contracting parties are not free to discard their obligations under a treaty unilaterally. To do so is to breach international law. A reasonable argument I riposte leaving us with the conclusion: the jury still is out.
Wayne Morrison, Jurisprudence: From The Greeks To Post-Modernity, Routledge-Cavendish