It is an awesome honour to deliver this lecture, the more so because of the distinction and experience of those who have done so on previous occasions.
I know a little about the law, quite a lot about politics, have some experience of government, could never have survived except in the air of liberty, and I am America's best friend.
May I therefore tell you some of my experiences and views, and the thoughts and conclusions which flow from them.
The Rule of Law
Many years ago as a young MP, when preparing a speech on the extension of the franchise, I was amazed to discover that at the time of the First World War only 30%; of the adult population had the vote, although our Parliamentary institutions dated from the 13th century, and Parliamentary supremacy from 1689.
Nevertheless—we had adjudged ourselves to be a free people because of the strong rule of law. It was not until 1928 that every adult, men and women, had the vote at the age of 21.
Early in my life, I had given up a career in scientific research—where there are right answers although they may elude us—for pursuit of legal qualifications and practice, where there is less exactitude and more judgement. People used to ask me why?—surely these things were so different? Not really—both proceed to their conclusions by a similar method. First find the facts, then apply the law, and if the result is in some way deficient—then imagination and reason must be engaged either to create a new scientific hypothesis, or a new law in tune with the needs of contemporary times. The development of the Common Law was always fascinating for me. It reflected the Anglo-Saxon belief in fairness and equity, and it bears witness to the wisdom and courage of some eminent Judges like for example Lord Chief Justice Coke, who faced by the demand of James II to try cases himself, refused and retorted with Bracton 's earlier maxim, “The King is under no man, but he is under God and the Law” .
Or like Lord Mansfield adjudicating in the famous case of a citizen brought before the Courts because he claimed his servant was a slave, Lord Mansfield gave judgement that one man could not own another and that when the “slave” set foot in England he became free. He left the court a free man. [end p1]
To trace our law from Magna Carta through Habeas Corpus, and the Bill of Rights 1689, and the gradual extension of the franchise is to understand not only history, but the character and sense of the people—and the values by which they live. These are what make a family, a community or a nation.
And the law needs to be fashioned and administered with an awareness of the contemporary concerns of the people. It cannot stand separate from the society of which it is part.
This is the frontier on which politicians and lawyers meet and mingle. The desire for justice imposes firm requirements on the politician—
First: in proposing legislation, a duty to give an honest account of what is practicable and not merely a rhetorical account of what is desirable;
second: his unstinting support for the Courts which administer the law and the people who enforce it.
third to make it clear that the law must stand as a whole and be obeyed as a whole. “Liberty is the right to do anything which the law permits” wrote Montesquieu in 1745, “and if a citizen were able to do what the law forbids, he would no longer have liberty since all other citizens would have the same ability.”
The Rule of Law as we understand it exists in only a small part of the world of which your country and mine are the centre.
Historic Changes in the Last Four Years
Mr Chairman, it is hard to grasp the magnitude of the historic changes we have seen in the last four years. From August 1989 a seemingly stable world structure, one founded on Communist oppression and lies, has crumbled into nothingness.
Today one of our main purposes is to help if we can the ex-communist nations along the road to democracy and rule of law. They have little idea of the true meaning of either. How could it be otherwise? Their system had no respect for human dignity. Our institutions, laws and customs have grown over a long period, but others can learn from our experience in a much shorter time.
In its heyday, communism believed that it would inevitably dominate the world, subsuming all national feeling and everything which gives life its infinite variety, replacing it with what was alleged to be a scientific system of conformity and uniformity. The very inhumanity and arrogance of the proposition makes one wonder how anyone could ever have believed in it, for Communism is so plainly contrary to the human spirit.
Not that there is anything inevitable about the spread of democracy. If anything, the difficulties of sustaining it are greatly under-estimated. The heady sense of freedom which comes from throwing off totalitarian rule is short lived. Building a true democracy is a rather lengthy and painstaking task. [end p2]
It is easy enough to transfer the institutions of democracy from one country to another, as Britain did to much of Africa in the 1960's. But it soon becomes apparent that is no guarantee that democracy as we know it will be practised. The one-party state in which there is no possibility of choosing an alternative government is hardly what we mean by democracy.
Fundamentals of Democracy
Mr. Chairman, what then are the fundamental tenets of true democracy. For me they are these: first, a sense of personal responsibilty. People need to realise that they are not just pawns on a chessboard, to be moved around at the whim of politicians. They can influence their destiny by their own efforts; second, democracy means limitation of the powers of the government and giving people the greatest possible freedom. In the end the strength of a society depends not on the big battalions but on the foot-soldiers, on the willingness of ordinary men and women, who do not seek fame or glory or high office, to play an active part in their community, not as conscripts but as volunteers; third, government will be by the consent of the majority expressed in free elections by secret ballot and universal suffrage. fourth, an economy based on market principles and a right to private property. Wealth is not created by regulation and instruction, but by ordinary enterprising people. It is hard for those who have only experienced life in totalitarian societies to think in those terms because it is outside anything they have ever known. fifth, a non-corrupt, professional administration, something we take for granted but which in large parts of the world is comparitively rare. finally, to avoid arbitrariness, a democratic government under a Rule of Law must have a structure, and institutions with their own transparent procedures and rules. [end p3]
The Law and the European Community
You have a written constitution—which Winston Churchill called the greatest expression of freedom in the English language—protected by a Supreme Court. I recall reading with some approval the reasoning that a Supreme Court was needed as a defence against an urge to legislate suddenly and perhaps unwisely because of some disturbing event or the vagaries of fashion.
Since then I have had cause to wonder whether our own Parliamentary Institutions might have been better protected by such a court than under our present system which permits more and more legislative powers to be passed to European Institutions even though they are not accountable to the electorate. Increasingly directives are passed by majority vote of the Council of Ministers. They may therefore lack the support and consent of our elected Parliament. Nevertheless they have to be enforced through our own Courts. Should Parliament pass a later law which enshrines our views, the European Court of justice, a court whose proceedings are not held in public and which does not permit minority judgements, can override our law if they adjudge it to be in conflict with their interpretation of European Law.
The rules of construction in that Court are very different from our own in that words from a preamble, a general declaration, or even a communique from a Ministerial meeting, may be used to construe the intent behind the Directive. Consequently the decisions tend to be all one way— “towards an ever closer union” That is, more power to the European Community and less to the elected Parliament of the nation state.
The Commission has developed a taste for detailed regulation and charters for this and charters for that loading costs on industry, making it unable to to compete effectively. The result is not only to make the Community protectionist, but to rouse increasing resentment in a people used to running their own affairs. In spite of recent experience with the ERM, the Commission and some Ministers still have not given up the idea of monetary and economic union, nor of a Federal Europe, which will be a drag on Europe's future growth putting it on the back-burner while the rest of the world is forging ahead.
The doctrine of Parliamentary Supremacy would theoretically allow us to withdraw the original Act of Parliament by which we joined the Community, but we are a nation which keeps our Treaties, and therefore it could only be varied by agreement between all the Member States. Moreover, we believe in the European ideal through international co-operation between independent nation states rather than the invention of new supernational sovereignties without roots in real identities and real loyalties.
In practice Parliament is not now supreme, and I believe that this has serious consequences for the doctrine of consent by which we require obedience to our law. [end p4]
The two main exponents of communism, the former Soviet Union and China, have chosen different routes out of their Marxist and Maoist period. Former President Gorbachev began by giving personal and political liberty including more freedom to travel and leave the USSR—an enormous change which altered the whole atmosphere from one of fear and furtiveness to a more open society. Discussion flowed freely. Television showed the proceedings of the Supreme Soviet and elections including non-Communist candidates were introduced.
Russia had only known a brief period of private enterprise some sixty or so years before Lenin seized power in 1917, but during that time her industry was growing well and attracting some foreign investment as a commercial law began to develop. Nevertheless, unlike the Chinese, her people were not natural traders and doubtless President Gorbachev hoped that the economic way forward, or restructuring as he called it, would become more apparent through discussion.
In the meantime Mr. Yeltsin, a firm believer in dispersal of power, limited government and a market economy, was elected President of Russia—itself the largest country in the world. But by this time the totally centralised Communist economic system was collapsing and just at the moment when President Gorbachev was about to disperse power to the separate republics, the coup was attempted, failed, and the USSR broke into fifteen component republics all of which joined the United Nations. Contrary to what many even in the West thought at the time, that was a thoroughly welcome development. the smaller, nationally based units which have resulted have a far better chance of pushing through the economic reforms required.
Yet the problems remain huge. The world has never experienced a challenge of this kind or dimension, turning a total tyranny where all land and jobs belonged to the state into a free enterprise economy with a sound currency and a rule of law.
The Russian people have very special qualities after all they have endured. What they now want is an honest market, a currency and a law they can trust as well as more goods. What they have is corruption, too few goods, an inflationary currency, no independent justice, a 1978 Brezhnev constitution and a Parliament pre-dating the attempted coup. Fortunately some of the younger Provincial Governors outside Moscow believe in private property, and a market economy, and they are making their own decisions and bringing these things about. [end p5]
China is different, indeed the whole Asia Pacific area is different. Stretching from Burma eastwards it has ⅓ of the world's population and owns ⅓ of the world's foreign currency reserves. Across Asia output per person is doubling every 10 years.
What has happened in China since Mr. Deng Xiaoping threw his weight whole-heartedly behind opening it up to market forces is a transformation without precedent in the annals of economic growth—something like 13 or 14%; a year. I know there are problems with over heating and speculation at present but they are the problems of success. I do not beleive it is possible to turn the clock back on economic reform even if anyone should want to do so; rather I would expect to see Hong Kong's return to China in 1997 speed it up still further. All the indicators point to China, Hong Kong and Taiwan becoming the main powerhouse of world growth in the opening part of the next century.
The political consequences of this cannot be evaded although Mr. Deng Xiaoping 's idea is to retain political power in the hands of the Central Government. Historically it is true that economic freedom has preceded political freedom. But when the market is allowed to work and prosperity spreads, you create a society where people are more educated, have more contact with foreigners and foreign ideas, have more money to spend as they wish, travel more widely, speak more freely and work for individual firms not for the state. Decisions about an enterprising economy can hardly be made by a political class unskilled in its ways, its habits and its needs.
Communists can denounce democracy as much as they like now, but democracy follows economic freedom sooner or later and no-one can stop it. [end p6]
A New World Order?
Sometimes I am asked to speak about the New World Order—I usually reply— “there isn't one and I doubt whether there ever will be”
It is true that after the Gulf War there was much talk of a New World Order. This was based upon a premise that an International concept of Justice existed which would be enforced by international law and by the United Nations. Why has this not come about?
First, in international affairs it is very difficult to create a concept of justice that is acceptable to all. True justice can only exist where democracy prevails, but in large areas of the world it does not. The US and the UK have been at the forefront of those countries which have pursued foreign policy goals because we believed they were right and just—the struggle against Communism is such a case. We both act to protect freedom. Unfortunately there are few other countries which share our altruism. Self-interest is often a much more powerful force.
Second, the United Nations is only the sum of its member states. Where these nation states or enough of them believe in the pursuit of justice and themselves have the political will to carry it through then the authority of the UN can be successfully invoked (as in the Gulf War). But we should not see the UN as giving sole legitimacy to action. For it is not a moral force, but a political one and thus subject to manipulation as we have seen in the case of Bosnia.
International Law must not become confused with UN politics. The only real defenders of international justice are those nation states willing to act in order to uphold it. If we are to see a peaceful and stable world then the law must reflect what we know to be right and there must be those who are prepared to implement it. If this does not happen then the unscrupulous will use our weakness to their advantage and aggression will triumph. In the words of William Pitt the Elder, “where law ends tyranny begins” .
T. S. Eliot was right; it is no use “dreaming of systems so perfect that no one needs to be good” This truth was echoed by Vaclav Havel who said, “We must cease to look for” a system that will eliminate all the disastrous consequences of previous systems, and seek instead “something different, something larger. We have to abandon the arrogant belief that the world is merely a puzzle to be solved” and he adds, “in a word, human uniqueness, human action, and the human spirit must be rehabilitated” [end p7]
Recently, especially in Asia, some governments have urged that the standards of Human Rights laid down in the Universal Declaration of Human Rights attached to the UN Charter, are Western and therefore not suitable for Asia and parts of the Third World whose cultures and circumstances are different. But the dispositions of human nature are the same everywhere—the affection of mother for child, the wish to do better for the family, the desire of the child to please, the recognition of courage and heroism, and the suffering and torture are felt the same by all human beings. Further, I have no difficulty in accepting the view that human nature is naturally endowed with a moral sense and a disposition (albeit if sometimes fragile) to make moral judgements. It's not only Western man who is created in God's image.
It is mainly totalitarian regimes who oppose the universality of human rights with facile excuses which put forward this argument and should always be challenged. Your own history and constitution has no difficulty in justifying universal human rights. One recalls that Jefferson in his first inaugural speech reminded his fellows citizens that although the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal laws must protect. After all, without the “moral light” of equality, who is to say what is “rightful” or “reasonable” . We recall too Abraham Lincoln 's battle after the Dred Scott decision, to gain acceptance of the view that the consent of the minority to Government by the majority depended on the central principle that “all men are created equal” .
Recently in Russia I was asked, wouldn't “enlightened absolutism” be better than the somewhat chaotic conditions and rampant corruption that are evident now? Brought up in the tradition of Lord Acton, my answer tumbled out, “No—it would soon be less enlightened and more absolute” . If the people of Russia had managed to develop a true Rule of Law the question would no longer be asked. The fact that it was, reminds us forcibly that although the communist system may be discredited, there are still too many communists about who would like to see a new Soviet style empire in which the nomenklature and generals resume their autocratic rule. There is no shortage of threats to peace. Border disputes between national and ethnic minorities whose identities were fiercely supressed under communism are now flaring up in what seem unquenchable political bushfires. [end p8]
And in the former Yugoslavia, the tragic consequences of a combination of Western weakness and Serbian aggression have become so terrible that the world's conscience risks becoming numbed. Yet there are vital lessons from this conflict in Bosnia.
The first is so simple that it should barely need making: yet it must. When aggressors see that they can act against their victims with impunity, they draw the conclusion that they can get away with anything. In these circumstances the extremists secure and increase their hold. Respect for law, international opinion and the norms of human decency are weakened. New potential tyrants and aggressors take heart and follow the example. That is not a description of the world in the 1930's. It is what is happening in the very heart of Europe today.
The second lesson from the tragedy of Bosnia is a particular example of a general point I have already made, that international organisations cannot be relied upon to enforce what is right. Humanitarian aid although welcome cannot stop the massacres or the ethnic cleansing. The leading nations of the European Community and NATO did not lack the means to stop what happened in Croatia and Bosnia, they lacked the will. Consensus is so often the negation of leadership.
The third lesson concerns a fundamental contradiction in the United Nations charter. Article 51 reaffirms (it did not invent) the inherent right to self defence, a right which is as old as man himself. A Chapter VII mandatory resolution which we must all respect legally, prevents the supply of weapons to the new member state of Bosnia. The Yugoslav weapons (the third largest Army in Europe) are all in the hands of the Serb agressor. Thus the charter affirms the right of self defence but prevents it from being put into practice. It gives the advantage to the agressor, penalises the innocent leaving them prey to the atrocities we have seen. This is Wrong. It should and must be dealt with. The reputation of the UN is at stake. Too many member states are hiding behind the anomoly, wringing their hands and quietly congratulating themselves on not having got involved. While others frustrated by the injustice of the position will be tempted to defy the UN arms embargo and supply weapons themselves.
Moreover, after the West's performance in Bosnia how can any European nation lecture other peoples on human rights when we do not uphold them on our own continent. [end p9]
The Future—Dangers and Opportunities
The sparkling performance of East and S.E. Asian states will gradually shift the centre of gravity of the world economy from the European—Atlantic area to the Pacific. Consequently the relationship between the principal countries within that great basin—Japan, China, Russia and the United States—will pre-occupy all of us more and more. So too will the problems of rogue states like North Korea with its ambitions to develop nuclear weapons, which must be stopped. Just as the scene shifts in a play, so I think the next Act in world history will be played out more in the Pacific than the Atlantic.
I believe that the Pacific is rapidly becoming America's first priority as it looks out at the world, and it is of course in the fortunate position of being both an Atlantic and a Pacific power. Henry Kissinger recently compared late twentieth century Asia to nineteenth century Europe. His point was that there are no collective security institutions like NATO or the CSCE in Asia: instead there is a balance of power, which the United States itself has a crucial role in holding. Indeed in that respect, its role is rather like Britain's in nineteenth century Europe.
Every nation has the right to defend itself and its legitimate interests. But for the smaller countries of the area the crucial consideration is that neither China nor Japan should dominate: and so long as the United States maintains an effective military prescence, there is no incentive or reason for either of them to seek to do so.
It is my belief that we should preserve and treasure our individual national characteristics and institutions which has been at the heart of my opposition to the Maastricht Treaty. Equally I find it absolutely natural for nations in Asia and elsewhere to want to defend their civilization from imported influences which they feel may threaten their religious and other values.
But what we have to avoid is constructing an artificial sense of hostility between cultures and civilizations which pits them against each other. In a free society far more unites than divides us.
Just over six years from now we shall cross the threshold of a new century, indeed a new millenium. We shall have high hopes and ambitions, indeed we must have because a complacent humanity will never make progress. Yet it is sobering to recall how many of the dreams which inspired our forebears as they entered the twentieth century were disappointed or confounded, above all their belief that war was outdated and unecessary. Today many of our preoccupations are very different from only ten years ago. But the consequences of the end of the cold war and the collapse of the former Soviet Empire are very much with us.
It is good news that the end of the cold war, together with the experiences of the Gulf War, have so changed the circumstances of the Middle East, that there is new hope that the Israeli—Arab problems may at last be resolved, and peace come to that most fought over part of the world. To go ahead with negotiations required courageous, indeed agonising, decisions on the part of both Prime Minister Rabin and Mr. Arafat. We applaud their leadership. [end p10]
As we look forward some of the most acute problems will be as much within our societies as between them. The days of states which sought total control over men's thoughts and actions are thankfully over, although North Korea remains a lone and unappealing survivor of this unnatural doctrine. Individual freedom, diversity and choice have proved not just morally superior, they are also essential to making a free enterprise system work efficiently. But that freedom is threatened, in the West certainly but I believe also more widely, by a lack of respect for the rights and freedom of others which manifests itself most clearly in rising crime and violence. That is the first concern of the law abiding public and it is one that must be addressed by lawyers, politicians and civic leaders together. So many of our problems are now behavioural. The truth is that order requires both justice and moral and social authority. As G. K. Chesterton said in one of his remarkable essays arrestingly entitled “The Suicide of Thought” — “Modesty has moved from the organ of ambition and has settled on conviction where it was never meant to be. A man was meant to be doubtful about himself, but undoubting about the truth.” We have to strengthen the institutions—the family, the courts, democratically elected governments—which provide authority. That means recognising people's role in democracy does not end when they cast their votes. They have to live up to and apply in daily life the standards and values which are the foundations of democracy.
But whatever problems remain—and they are many—this has been a decade of good news of a kind we never thought to see. Let us continue to build on the principles on which our recent triumphs have been founded. As so often Rudyard Kipling has the last word in very economical language:
“Keep ye the law—be swift in all obedience——
clear the land of evil, drive the road and bridge the ford.
Make ye sure to each his own
that he reap where he hath sown;
By the peace among our peoples let men know
We serve the Lord.