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By Ian McDougall, General Counsel, LexisNexis Legal & Professional
This blog isn’t going to be about a single subject. There are a huge number of issues that have recently, in some way, touched upon the subject of the Rule of Law but I will just highlight two interesting current issues from a Rule of law perspective.
The controversy in the United States over its election has produced a huge amount of media reporting and the Rule of Law is often mentioned. On that issue, I want to separate the intensity of the political arguments (upon which I make no comment at all), the recent violent actions on Capitol Hill (which everyone should condemn without reservation), from the basic fundamentals of the Rule of Law.
From the perspective of the LexisNexis definition of the Rule of Law, one aspect has continued to shine brightly through the election controversy: the independence of the judiciary. Time and again, in literally dozens of court cases, the arguments of both sides revolved around the law and evidence. All parties to the cases abided by the outcome of judicial process. Appeals were heard and decided. Access to the courts was provided time and again. Whether you disagree with what the court says or not, nobody can say the decisions of the courts have not been followed. Whether you disagree with the outcome of the election or not, whether one party or the other “accepts” the results or not, nobody can claim the processes proscribed in law have not been followed. That is the Rule of Law situation as I see it, stripped of all the surrounding issues.
Also in the news was a fascinating case concerning a Uruguayan soccer player, Edinson Cavani, in the UK who posted a tweet which was alleged to be racist. The interesting point to come out of this is, what has been argued to be, a clash of cultures.
To recap, as I understand it, a friend (or fan?) of the soccer player sent him a message of congratulations on a recent performance. Cavani replied with the words “Gracias negrito” (the strict and literal translation of that word is “little black”, in this use it is claimed the way that “little” is often intended to be affectionate). As a result of using those words, he was fined £100,000 by the English Football Association and banned for a number of games for racist language.
Interestingly (and here is where the alleged culture clash comes in), this punishment produced an angry response from his Uruguayan teammates who claimed:
'The sanction shows the English Football Association's biased, dogmatic and ethnocentric vision that only allows a subjective interpretation to be made from its particular and excluding conclusion, however flawed it may be.
'Edinson Cavani has never committed any conduct that could be interpreted as racist. He merely used a common expression in Latin America to affectionately address a loved one or close friend. [My emphasis].
'To sustain that the only way to obtain a valid interpretation in life is that which lies in the minds of the managers of the English Football Association is actually a true discriminatory act, which is completely reprehensible and against Uruguayan culture.'
I have canvassed a number of Spanish native speakers and people familiar with South American culture and the issue doesn’t appear to be a straightforward as that letter makes out. The answers I received seemed completely split down the middle. Some were saying it isn’t taken as being offensive in Latin America and some saying that it is offensive. The translation into English, or French for that matter, is not straightforward. I have seen multiple attempts to translate it into English. Either way, there is no translation I have seen that sounds acceptable (frankly, regardless of the context) to a native English speaker. This interesting question is one that touches upon the LexisNexis Rule of Law definition because of the way in which we came to it.
We surveyed the history of the Rule of Law around the world and introduced a definition that could be applied in all countries, in all societies and in all political systems. That, we believe, is the best way to deliver the advantages of the Rule of Law to the 5 billion people the United Nations estimates still remain outside of its protection.
Ultimately, the Cavani case comes down to whether you accept that using that type of language can be culturally affectionate (as Cavani and supporters claimed) or whether there is no moral relativism, that reference to ethnicity, whether giving thanks affectionately or not, is wrong even if accepted by some cultures.
On the basis of my own little survey, I tend to come down to the view that because something is accepted by some, that doesn’t make it right. An important aspect of the Rule of Law is equality before the law. That means everyone being treated equally regardless of what position in society you hold, whatever you race, religion, ethnicity, sex or any other attribute. Unfortunately, what we have seen is that the language of racial epithets (even if accepted in society) simply seem to perpetuate division and discrimination. As we have seen in the US recently as well, the language of influencers matters and can have an enormous effect.
Ultimately there are some fundamental issues which are not defensible simply because they are accepted norms in some cultures. Equality is a fundamental human right that is traceable across all cultures. Language which perpetuates the division of people and the perpetuation of inequality surely cannot be right under any circumstances.