find the latest legal job
Part Time Risk & Compliance Officer
Category: Other | Location: Brisbane QLD 4000
· Brisbane City · Flexible Part Time Hours
View details
Infrastructure Lawyer/SA
Category: Construction Law | Location: Sydney CBD, Inner West & Eastern Suburbs Sydney NSW
· Global elite law firm · Dedicated Infrastructure team
View details
Property Lawyer
Category: Property Law | Location: All Melbourne VIC
· 12 Month Contract · Diverse Work
View details
Family Lawyer
Category: Family Law | Location: Eastern Suburbs Melbourne VIC
· Boutique Firm · Great Reputation
View details
Infrastructure Lawyers
Category: Construction Law | Location: All Perth WA
· We'd be particularly interested to hear from you if you were a lawyer who knows your way around the infrastructure and energy sectors.
View details
Rule of law in a democratic society

Rule of law in a democratic society

Iain Miller

Whether or not you agree with the recent judicial review of US president Donald Trump’s second attempted “travel ban”, it brings into sharp focus the importance of the rule of law to a democratic society, writes Iain Miller.

The idea of executive powers being counterbalanced by the law has a long history. Putting aside recent precedents, including the trial of Saddam Hussein, arguably the first example in western jurisprudence was the trial of King Charles I of England in 1649.

Charles I believed in the divine right of kings, and thought he could govern according to his own conscience and prerogatives. Many of his subjects opposed his policies, in particular the levying of taxes without parliamentary consent.

Discontent culminated in the First and Second English Civil War, from about 1642 to 1649, when Charles I was captured and handed over to the English parliament, where he faced trial for treason on the basis that he governed in pursuit of his own personal interest, rather than for the good of the country.

There was considerable controversy about this charge, however the prosecution was led by the Solicitor-General John Cook, after many of his colleagues refused to take part. In particular, Mr Cook challenged the doctrine of sovereign immunity and proposed that the King of England was not a person, but an office which was provided a power to govern in accordance with the laws of the land, and not otherwise.

Charles refused to plead to those charges, disputing that any court had jurisdiction over a monarch, but ultimately, after about 30 witnesses gave evidence, Charles was declared guilty and condemned to death. The sentence was carried out on about 30 January 1649.

Unfortunately for Mr Cook, after the restoration of Charles II to the English throne, he was tried and found guilty of high treason for his part in the trial of Charles I. He was hung, drawn and quartered on 16 October 1660.

Shortly before his death, Mr Cook wrote to his wife:

We fought for the public good and would have enfranchised the people and secured the welfare of the whole groaning creation, if the nation had not more delighted in servitude than in freedom.

Iain Miller is a senior lawyer in the medical negligence team at Stacks Goudkamp.

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Rule of law in a democratic society
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Violence
Nov 17 2017
It's time for politicians to commit to eradicating domestic violence
The national shame of domestic violence cannot be left unaddressed, writes Christine Smyth. ...
Nov 16 2017
From lawyer in law firm to senior governance professional
Promoted by Governance Institute of Australia As a law graduate, Kate Griffiths never imagined...
marriage equality
Nov 16 2017
Legislation the next hurdle for marriage equality
Lawyers have underscored the importance of ensuring same-sex marriage legislation does not limit ant...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...