The concept of Liberalism

Liberalism regards the legitimacy of the power and authority within a state and recognizes the importance of the individual and can be attributed as the cause of historical events such as the French Revolution. [1] An underlying concept of liberal thought is the rule of law which argues that the government is held accountable to the law for their actions. However, the application of this principle has been under threat by other constitutional principles.

The aim of this concept is to mediate the relationship between the state and the individual. While a debate exists concerning the extent of this mediation Hobbes and Locke both assert that the state is justified in the protection of life and property. [2] Despite the simplicity of the rule, the state acts in their own interest as opposed to the interest of the individual. In R v Bancoult [3] , Lord Bingham questions the effectiveness of the rule of law if the courts could allow such unlawful use of power by the executive. [4] While this case raises difficulty for the rule of law in a liberal society, it can be argued that it does not directly affect the issue of the rule of law because the mere fact that the Chagossians were able to bring the proceedings to court means that the rule of law has been exercised.

Despite this the fact that the law is still not considered as a supreme power in the United Kingdom and can directly affect the application of the rule of law. Even though the supremacy of the law was coerced by ancient thinkers such as Aristotle, Plato and Cicero it is a notion which many liberal societies with the exception of South Africa has not utilized within state affairs. [5] While the importance of a democracy is prevalent in a liberal society the supremacy of Parliament combined with the fusion of the executive that the government will never be held fully accountable for their actions. The role of the courts is to legitimately use the law and facts and interpret statutes accordingly. In Bancoult, Lord Hoffman argues the courts could not argue against the plenary power exercised by the executive nor was it the courts place to do so. The dissenting judgement of Lord Atkins in Liversidge v Anderson [6] also reflects this view. [7] The enactment of acts such as Anti Terrorism, Crime and Security Act 2001 also indicates that the independence of the judges from the executive means the rule of law could possibly be collapsing. It also raises questions regarding the extent to which the courts can keep the executive in check if the court does not have a constitutional right to invalidate acts that does not respect basic human rights.

In conclusion, it is clear that the liberal concept of the rule of law conforms to the basis that liberalism itself rests on: protection of the individual but the prevalence of other constitutional doctrines such as parliamentary sovereignty and separation of powers affects the application of the rule of law.

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One of the most fundamental constitutional conflicts arises with the notions of parliamentary sovereignty, the separation of powers and the rule of law. The existence of a sovereign parliament in a democracy leads to the judiciary having to succumb to political compromise with the executive and the legislature which does not necessarily conform to the rule of law.

The judgement of Lord Bingham in A v Secretary of State for the Home Secretary No 2 [8] reflects this compromise. Bingham implicitly applies the concept that the role of the courts is to maintain a standard of equality before law and uphold constitutional rights by refusing to allow evidence obtained by torture in judicial proceedings. However, this was not extended to non-judicial proceedings giving the executive the power to detain without trial based on the findings of “foreign torture evidence" as legislated in the Anti-Terrorism, Crime and Security Act 2001. The judgement balanced what can be considered as the purpose of each arm of the state; the judiciary as the protector of the individual and the executive as the protector of the society with the judiciary only intervening when constitutional rights are infringed.

On the consideration that the liberal rule of law conforms to the needs and security of the individual the judgement of Lord Bingham could be considered as a compromise of this principle. Modern day analogies of theories such as liberalism have now become a majority rule platform. For this reason, many decisions made by the state cater to the majority as opposed to the individual. Liberal societies are complying with utilitarian thought operating on the basis of the ‘greatest happiness for the greatest number’. [9] There is no examination of the infringements needed to reach the result, only consideration of the consequences.

Klare argues that this issue reflects on the supremacy of parliament and examines whether a constitutional framework such as the one developed by the South Africans would be beneficial or detrimental to the exercising of the rule of law in liberal societies. [10] The major concern of Lord Bingham in this judgment was the use of power in the judiciary to uphold the individual right while still acknowledging the supremacy of Parliament. On the surface it does not necessarily conform to the rule of law but considering the rigidity of other constitutional principles it was effective in securing the importance of human rights and indicated the judiciary could still exercise a fragment of power to keep the executive in check. [11] 

In conclusion, considering the balance of power within the state the legal reasoning of Lord Bingham can be considered as pragmatic as opposed to progressive. It indicates that the principles society is built on such as liberalism and the rule of law could possibly be collapsing. While there may a separation of powers, the balance will never be proportionate because the fusion of the legislative and the executive which means the judiciary lacks the necessary power to completely protect the rights of the individual.

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The War on Terror has led to a number of legal and ethical issues regarding the use of torture and the admissibility of the torture obtained by such in a court of law. Torture is an act that has been prohibited for centuries because of its infringement of human rights. Article 3 of the Human Rights Act 1998 states that: ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment’ and is an absolute rule that cannot be justified under any circumstances. This right extends past the direct participation of nations in the infliction of torture to instances where they knowingly condone it. However, following the events of 11th September, 2001 there have been attempts to use information obtained by torture to arrest and detain suspected terrorists and in the courts of the United Kingdom. While consequentialist and utilitarian arguments support the use of evidence obtained by torture it is an infringement of the constitutional rights and values that many liberal societies such as the United Kingdom was built on.

Although some arguments suggest that the interests of the society at large is not proportionately balanced with that of the individual there is a recognized responsibility of the state towards citizens in a liberal society. Those who are entrusted with this responsibility such as the police, military and state officials must often balance the individual rights of citizens against the protection of society or security of the state. State emergencies may lead to iliciting information through torture and other degrading methods which constitutes an “ends justifying means" situation similar to the ‘ticking bomb’ analysis which is used to justify the use of torture in cases of emergencies. Consequentialists argue this is an effective way to obtain information in order to save lives, a view which follows the thoughts of Machiavelli, who although was subjected to the use of torture, argues that torture is legitimate in order to defeat enemies. [12] In Cafgen v Germany [13] evidence that led to the discovery of a corpse was deemed admissible in a German court. Although a case was brought against the administrators of the torture the evidence still contributed to the conviction of the defendant. [14] 

In A v Secretary of State for the Home Secretary No.2 Lord Bingham concluded that the evidence obtained by torture was not admissible in a court but did not condemn the Executive for acting on such evidence. [15] The legal issue arising from such circumstances is directly associated with the role of the state and whether basic human rights outweigh the power of the state to ‘protect’ its inhabitants. It can be argued that in a society such as the United Kingdom this stems from the conflict of constitutional values such as the rule of law and the separation of powers. Therefore while the reliability of such evidence is questioned by the court the broader issue is constitutionalism. While this case may seem to be specific to the facts Bingham argues that it is one of constitutional principle and not governmental policy. [16] In his judgment Bingham outlined the various sources where the act of torture and any condemnation of it is prohibited but argued that the basis of the prohibition can be found in the common law.

As argued by Locke the state is only justified if acting within the interests of its inhabitants therefore the use of the torture evidence suggests that the state is infringing the constitutional rights available to humans. In the United Kingdom the unwritten constitution could possibly be an enabler to such because of parliamentary sovereignty and the ability of the constitution to change with the enactment of an Act whereas the South African constitution has been created and codified to serve as the supreme body governing the territory. Sachs argues that the protection of constitutional principles and values is important because it reflects on the entire society. The decisions of the branches of the state should reflect the values of the entire society and by allowing the evidence means that the respect for the individual has been lost. [17] Apart from damaging the dignity of those who are tortured for such evidence, it damages the values any state officials involved in the activity whether they are directly responsible for using torture to obtain the evidence or presenting it to the executive or judiciary.

The Truth and Reconciliation Commission established in South Africa after the period of apartheid and used a very pragmatic approach in dealing with cases of those involved. The result of such proceedings was amnesty and the disallowance of civil suits for those acknowledging their wrongdoings. [18] . The striking difference of such proceedings in comparison to the SIAC and the IMT during the Nuremberg Trials was the acknowledgement of the ability of a state to take an opportunity define their nation and uphold constitutional rights of individuality as opposed to conceding to the notion of ‘tyranny of the majority’.

The core constitutional principle on which liberalism rests is the protection of the individual and their rights. Based solely on this argument the use of the tortured induced evidence is inadmissible. While this is supported in many legal sources, the examination of the norms and principles on which society rests is where the answer lies. It may appear to be a judicial issue but the problem stems from the enactment of laws such as the Anti-Terrorism, Crime and Security Act 2001 and the establishment of bodies such as SIAC.

In conclusion, for the state to engage in the usage of evidence obtained by torture would contradict the basis of the constitutional principles and the established system of law that most liberal societies were built on. Despite the fact that states face challenges regarding democracy versus security, engaging in such activities may lead to the abolishment of certain rights for the greater good of society and is a process that once it has started cannot be undone.

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