Are certain fundamental norms necessary for legality? Is it justifiable to protect officials from being
liable in law for their past behaviour
I do not believe that a system of rules enforced by the state could justifiably be called a 'legal system'
if it was not founded on norms of justice and morality. This is a proposition that needs to be argued
for, however. There is a view in Jurisprudence that justice and legality can be defined purely by
reference to a given set of laws. I believe that this cannot be correct, because the consequence
would follow that it was logically impossible for a system of laws to be unjust.
Are there any conceivable circumstances under which it would be justified to protect officials of the
state from being liable in law for their actions? I have tried hard to think of plausible examples:
Members of the armed forces who might not automatically be liable in civil law for certain actions
can be brought before a court martial. There problem that the court martial might not consider the
offence to be as serious as would a civil court. In such a case, the victim might justifiably feel that
justice had not been done.
In the British Parliament, members of the House of Commons have immunity from prosecution for
slander when speaking in debates. This has for a long time been a subject matter for controversy. In
favour of this 'parliamentary privilege' it is argued that parliament (like the army) has its own sanctions
against abuse of the system. The rules of what it is acceptable to say are in many ways more strict
than outside parliament. The objection is that if you are slandered by an MP speaking about you in
the House of Commons, you cannot sue for damages.
In the shadier world of espionage, it might be argued that the need for secrecy and anonymity is
inconsistent with servants of the state being accountable in a court of law for their actions. The only
justification that I can conceive here is where granting immunity from prosecution in a particular case
would be regarded as the lesser of two evils.