THE LAST DITCH An Englishman returned after twenty years abroad blogs about liberty in Britain
The madness of youth writ old
Guest Post: The Limits of Democracy - an (the!) answer.

The limits of democracy?

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Oliver Wendell Holmes “The life of the law has not been logic; it has been experience.”
When I studied jurisprudence at university, I was - I discovered - an American Realist. In executive summary, American Realists define law as nothing more than a prediction of what rules the courts in any given jurisdiction will enforce in any given case. There is no moral dimension to it. Law is an entirely practical matter.

As a radical young man, that seemed sensible to me. Now I am not so sure.

Perhaps it was because, as a naive and optimistic young intellectual, I could not imagine the mother of all Parliaments enacting immoral laws. Or the mother of all electorates authorising it to do so. There is no excuse for that youthful lack of imagination because both had already done so on numerous occasions. I make no excuse. As in so many other respects, I was simply not paying enough attention during my studies. 

One notable example of an immoral law was the Transport Act 1947, which seized (amongst other things) my grandfather's transport business. He and his brothers had built it from their own savings from honest employment, supplemented with a small loan from my great grandfather to help buy their first truck. They had committed no crimes (apart from speeding) in the process. They had delivered useful services to the benefit of their fellow men. They had created employment. They had created wealth.

They were also loyal citizens who volunteered to fight for their country the first day after World War II was declared. Their trucks had already been commandeered for military use and returned to them in poor shape. Yet on their own return from the war, their livelihood was taken from them for token compensation, corruptly assessed and paid over decades in inflation-debased coin.

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My grandfather, my great-grandfather and the company's first employee
My grandfather, an untutored American Realist it seems, simply accepted it as "good law" (in the sense of valid law) and got on with his life. As a native of a solidly Labour area, he said if he was going to hate the Attlee Government, he would have had to hate all his relatives, friends and neighbours who had voted for it. This, he rather nobly (or perhaps just practically) declined to do. Later in life, with the arrival of Thatcherism in Britain and the fall of Communism in Europe, he was happy to have lived to see the ideology behind his expropriation exposed as an unequivocal failure. It is perhaps as well he did not live to see Socialists regroup under other flags.

Was the Transport Act "good" law in the moral sense? Parliament, so British Constitution textbooks used to tell us for hyperbolic effect (though whether they still do so now Parliament has actually done it I haven't checked) "...can turn a man into a woman..." But can Parliament turn wrong into right; evil into good?

If Parliament voted to legalise the killing of everyone who had ever presented Top Gear, for example, and the Queen gave her Royal Assent (as I predict, based on Her Majesty's conduct to date, she would) would that make it law? For American Realists, the Top Gear Act 2013 would introduce a new defence to the charge of murder and therefore change the correct prediction of what a court would rule if you were charged with killing Clarkson, May or Hammond. So yes, it would be good law. I assert rather shakily (with no philosophical justification to hand) that it would not be "good" law in the moral sense. I sense it's wrong, but I have the same sense about much current law and my sense seems to be out of line with that of my fellow-citizens. They have no moral issues with theft, murder or kidnapping as long as they are blessed by Parliament.

If Parliament can't make bad good, why not? In this democratic age, who else can define what is moral but the representatives of the people? Certainly not the men of religion, who now change their views weakly (if not weekly) with the social tides. If God ever told them what to think, He seems to have lost His voice. Nor do the Philosophy Departments of our Universities offer any useful guidance. On the contrary, they - like other academics - seem now to be mostly paid apologists for the men of power.

Leftists, other statists and their fellow-travellers tell us that expropriation of "the rich" to redistribute their wealth to their chosen corruptees is justified by democracy. Without that justification it would simply be theft. So with such justification would Clarkson-killing cease to be murder? No question, but would it cease to be morally wrong? I need the answer to that question to be "no", but I lack the philosophical equipment to say so. Can you help? Suggestions in the comments section please.

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