The rule of law is perhaps one of the greatest achievements of humankind this millennium and will profoundly affect the next.
The rule of law has come in both science and society, replacing myth, superstition and arbitrary power. The rule of law has redefined the place of humans in the universe.
No longer are humans on a flat earth in the centre of the universe, uniquely created. No longer is it normal for some humans have unaccountable power over other humans, or even own them as slaves.
The Greeks and the Romans got to the verge of this achievement, without actually reaching it, but this millennium saw a transformation of society based upon the replacement of personal power by impersonal power. The former was individualist and stemmed in theory from the divine right of kings and in practice through the possession of force. The latter is universal and based on words.
At the beginning of the millennium in nearly every part of the world human conduct was governed by arbitrary personal power. Where one fitted in the hierarchy determined one’s rights, down to slaves and serfs at the bottom.
As the millennium wore on, law replaced power and religion in determining human conduct. In most parts of the world it became accepted that humans are born equal and the law applies equally to all of them.
Nowadays in societies like Australia we take this for granted. But it is an enormous achievement for humankind. It separates us from primitive and feudal societies and the animal kingdom where force and power determine events. In some parts of the world, alas, humans have no recourse to law and their conduct is determined still by force, power and position.
Perhaps the most eloquent statement of the rule of law can be found in the United States Declaration of Independence:
“”We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”
Later the US Constitution’s Bill of Rights stated, “”Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”
The law, rather than birth, governed relations between individuals and other individuals and relations between individuals and the state.
And the law has mushroomed, necessarily so as the arbitrary power it replaced needed few words.
If one of the major achievements of the millennium was the emergence of the concept of the rule of law, let us now look at how that might be exercised into the next millennium — presuming, if we dare, that the human race does not return to the barbarity of superstition and absolute rule.
Technology will pose the biggest challenge for the law. Going on past trends, legislatures will follow, rather than lead, events in the courts and laboratories.
Genetic research poses some big legal questions.
As the human genome program nears completion, medical science will be able to predict which humans will get particular diseases or have a higher risk of getting them. That will happen well before medicine gets methods of controlling or curing the diseases.
Legal issues flow. Should employers and insurers be able to demand full DNA disease check before employing or insuring someone. At present insurers charge people with added risk. Smokers pay more for life insurance, so that non-smokers can pay less. Young males pay more for car insurance so mature people can pay less. Why should those who get the genetically all-clear subsidise the life insurance or health insurance of those with greater genetic risk? Sound frightening? You can bet the selfishness and fear of humans will result in this one being argued in the courts.
DNA technology is already revolutionising family law and criminal law. Paternity is never fought these days. It is routinely proved or disproved beyond doubt.
But another technology poses strain on family law: in-vitro fertilisation. The juggling of eggs and sperm and the positing them in human host mothers gives rise to endless permutations of parents — biological, by marriage, by carriage of another’s child and so on. Next century, perhaps cloning of humans will pose similar problems. The courts usually take the best interests of the child as the over-riding consideration — perhaps the best approach given the emotions that frequently drive parents in creating children. The possibilities of IVF also give rise to taking sperm and eggs from dead people to create children. The law will have to grapple with “”ownership” claims of sperm and eggs.
In criminal law, DNA evidence has resulted in murder convictions in Australia several cases that otherwise would have gone unsolved.
Next century DNA testing will become more sophisticated and used more often and in less serious cases. The DNA database is being built up as convicted people are routinely checked and the DNA of crime suspects is being filed.
A tiny piece of hair, fingernail, skin, semen or saliva can be DNA tested. But DNA evidence in criminal law is a tricky question, especially with juries bamboozled with science. DNA evidence will tell you conclusively that a certain piece of body tissue came from a given individual, but that does not prove the owner of the body tissue did the crime. They (or the body tissue) could have got to the crime scene in a multitude of innocent ways.
Should we dispense with juries in cases with difficult scientific evidence. If one of the benefits of the rule of law is to get rid of superstition and prejudice and replace it with reasons and evidence, then maybe the role of juries will be questioned more severely next century as cases involve more science.
The other technology to pose problems for the law next century is that of information technology. We have only scratched the surface in the past five years.
(Incidentally, you might describe DNA and the genome project as just another piece of information technology.)
The big tests for the law will be protecting intellectual property and protecting privacy and reputation (or abandoning them).
Society has rewarded creators with protection from illegal copying of their art, music, words, inventions and designs. The reward usually comes in the form of monopoly rights to exploit the work for a period after which it becomes public property. Without the monopoly period people would not bother being creative. The trouble with new information technology is that perfect copies of music, art (especially photographs and video) and words can be made easily and cheaply. It may well be that technology comes up with solutions before the law.
Privacy is testing the lawyers. It is becoming cheaper and easier to store, search and retrieve information. Information given or collected for, say, a credit-card transaction, property or car registration, Medicare and other insurance, welfare application, tax and so on can be collected and misused. But it can also be well-used: to catch criminals or to directly market goods and services to people who might want them.
Next century the power of computers and the linking of information within them may make the protection of privacy impossible. Similarly with reputation. People wanting a good reputation will have to rely on their good actions rather than worry about what people might publish about them. With the internet it will become impossible to censor information. It can easily be stored overseas and accessed instantaneously in Australia. With the internet, dinner-table gossip can become international publication. Like privacy, protection of reputation might become a thing of the 20th century and not or the 21st. The law might become powerless to protect.
Similarly, the boundaries of commerce will widen beyond where the law’s writ can run. Gambling and pornography will be nigh impossible to stop. Even taxing transactions over the internet will become impossible, especially the buying and selling of information, art and music. It will be difficult to tax transactions for physical goods posted in from overseas.
In the 20th century the law and the courts spent a huge amount of effort preventing the free flow of information and ideas. In the 21st the technology could take it out of their hands. Our legislators and governments do not appears to have grasped this. Humans may just have to learn to deal with both the good and the bad of an utterly free-information society.
The 20th century was not free from courts ordering the burning of the books. Lady Chatterly’s Lover and Spycatcher were examples of Government’s suppressing material they thought the masses should not see on “”moral” grounds or grounds of “national security”. Cases like this will not get off the ground next century. The material will be on the internet and copied to a thousand sites so no law or court can suppress it.
Even in the last fortnight of the hundred or so years that begin with a one and a nine (he writes carefully avoiding the mathematical arguments about when the millennium ends, preferring the excitement that comes with every digit of the great western European odometer ticking over) the Australian Government took something mildly embarrassing off one of its internet sites, thereby attracting more attention to it than it would otherwise get. But too late, it had already been copied dozens of times and will find its way back on the internet. No law will stop it.
The masses are getting more things their way as consumers and makers of things as well as consumers of information.
Perhaps the greatest legal developments in the 20th century were the rise of consumer and worker protection.
In the 19th century capitalists could make faulty products in faulty ways and the law allowed them to hide behind rules such as the privity of contract. There were no general duties to provide safe workplaces and safe products. Then came Lord Atkin in the famous case of Donoghue v Stevenson. Mrs Donoghue was given some ginger beer with a snail in it. She sued the manufacturer (not the retailer or her friend who gave it to her). Even though she had no contract with the manufacturer, Lord Atkin said the manufacturer had a duty of care to the ultimate consumer and order it to pay. That was in the 1930s.
Nowadays lawyers have priced themselves out of the ginger beer market. No-one but the filthy rich can go to court on their own without help from legal aid or a more easily obtainable lottery win to argue over small matters.
But consumer and worker protection goes on. They may be the boom cases of the 21st century.
In the same spirit of workers in the past century uniting to get a better deal from employers, the consumers of the next century will develop the nascent movement of this century to use the law make manufacturers, professionals and other providers liable for misdeeds. Class actions are bringing together huge number of consumers to sue the providers of silicon implants, bad drugs, bad water. The movement is being widened by the actions of government. As government privatises utilities it exposes them to the private legal class action. The newly privatised gas supplier in Victoria is a case in point. An orderly queue of gas consumers is lining up for compensation, represented by lawyers who take such cases on the basis of no-win no costs.
Workers affected by asbestos and other harmful substances at work decades ago have also embraced the class action.
As cases at the high end become more costly and the law less accessible, class actions are becoming a of justice bulwark against high costs. They are likely to be the growth area next century.
They are also likely to be used in environmental cases and even against foreign governments who have assets here. They may be cumbersome and sometimes driven by greedy lawyers, but they can also be great catalysts for corporations and governments to behave themselves. It is not worthwhile, for example, for a single small aircraft owner to take on a giant fuel company for supplying contaminated fuel that resulted in grounding and loss of business. Put 12,000 aircraft owners together and they can easily fund a case.
On the smaller side, consumer power is exercised in a range of small claims courts and tribunals which have sprung up as a bulwark against high legal costs in the high courts which have more formal rules of evidence. It may be next century that courts and tribunals can get more efficient with the use of internet technology. In consumer cases and other smaller cases people could give written and oral evidence over the internet.
The internet is giving greater access to the statute and case law, making it more possible for people to prepare their own cases, at least with small claims.
The other big development next century is likely to be in international law. We have seen international criminal trials for war crimes. We may see a general international criminal code routinely enforced. On the civil side, a large number of treaties govern the conduct of nations, but they are frequently dishonoured without penalty, particularly in human rights and environmental fields. Next century, classes of individuals will take actions for civil rights and environmental breaches that foreign governments will have to take note of, lest their assets around the world be seized to pay damages.
Costs may be rising. The length and complexity of cases increasing. We may be seeing more lawyers than we need and greater use of the law as a threat. The rules of evidence seems to get increasingly complex and perverse that the rule of law is hugely handicapped. That is the downside of developments in the late 20th century. The up side for the this millennium and into next millennium has been the increasing resort to law to improve human conduct. The rule of law itself makes us all equal before it. It can even take the rough edges off the practice of democracy. The majority cannot arbitrarily vote to extinguish the life, liberty and property of individuals without legal process. Yes, the rule of law has been abused this millennium and no doubt next, but generally it has been a force of peace and order replacing arbitrary power and chaos.