The limits of law
Thursday, March 20, 2014
Many things wrong with society can be explained by misunderstandings of the nature and purpose of law. Many see it as nothing more than rules handed down from above and think all that matters is the quality and intent of the ruler. In debates about democracy, such thinking is revealed in the common assumption that laws are or will be good if the rulers are elected. Nothing in history seems to support this view. Hitler's election did not validate the Final Solution. An elected Congress did not validate the Jim Crow laws. A majority view in favour of eugenics, promoted vigorously by the Left at the time, did not justify the bad laws made on the subject in various countries.
I favour democracy as a way of choosing lawmakers, administrators of state assets and services and even of police chiefs and judges. In this I am keener on democracy than most Europeans, but I don't believe it is magical. A bad law cannot be made a good law by democracy any more than Victor Yanukovich, Vladimir Putin, Adolf Hitler or John Prescott were made good men by being elected. A crook is a crook, regardless of votes. And a crock is a crock.
In legal philosophy there is a concept of Natural Law. Regardless of the nature and intent of the lawmaker, it holds that a law is only good if it aligns with natural justice. Religious people traditionally looked at law this way on the basis that God determines what that is, but it's open to others too. The obvious problem, if you're not religious, is how to determine what natural justice is. It might surprise readers to know that I think equality is at the heart of it. A law that favours one man over another, without distinction based upon his own personal misconduct, is almost certainly wrong in nature. How would I define misconduct? The initiation of force or fraud.
The draftsmen of arguably the best, possibly the most effective and certainly the most influential legal document in modern history proceeded on the assumption that certain truths were self-evident and that laws were only "good" (both in the lawyer's sense of valid and in everyone else's sense of moral) if they were consistent with those truths. They sought to address the practical problem of aligning laws with natural justice by limiting the legislature's scope, fragmenting power to make it harder to make sweeping changes, setting up an independent court to rule on the validity of laws and allowing the population to arm themselves to the teeth so that - if all else failed - they could more readily water the tree of liberty with the blood of tyrants and patriots.
The cynic will object that all this is pie in the sky. Political power grows out of the barrel of a gun and, once gained, the power to make and impose rules follows. International law may say the Crimea is Ukrainian. The superior violence of one state over another says it is Russian and the same truths apply at national level. God or Nature may give our government no right to seize our earnings, confiscate our wealth on our death or tell us how much salt is used in making our salted snacks. But the state's monopoly of violence says otherwise and we should be grateful that, unlike in lesser lands, we can choose others (or offer ourselves) to wield the sword of that violence in ways that please us better.
There's the rub. Natural justice does not enforce itself. Public international law is mostly nonsense because the only bailiffs are soldiers under the command of more or less wicked states and the outcomes of enforcement actions (aka wars) are determined by the quantity of weapons and troops and the military prowess of the commanders. For practical purposes it is a crock. At best it's a moral framework for when it's right to fight a war, international, civil or revolutionary. The national equivalent of that may simply be that natural law is a moral framework to determine when it's right to disobey. Nothing in it will protect you from the consequences of disobedience - especially if the makers of bad law have successfully disarmed you.
Thank you Tom, I found that a thoughtful and lucid piece.
I hope it reaches a wide audience.
Posted by: Cuffleyburgers | Thursday, March 27, 2014 at 12:03 PM
Straw man alert. In this case a Roman era straw man worthy of inclusion in the British Museum.
Posted by: Tom | Wednesday, March 26, 2014 at 05:43 AM
Well yes, I'm sure you do... but the question is how this, or any other policy proposal might actually be established. You can appeal to people's rationality, their emotion or use violence.
My point is that without the invention of an entirely new "libertarian man" you aren't going to get everyone, or even a majority of people, in a society to think rationally about public policy - including your policy ideas regarding the correct limitations on government. However, I don't think we have to entirely throw the baby out with the bathwater, as Tom seems to be suggesting, and rely entirely on violence to establish our ideas.
Though of course, I forgot, that when a libertarian shoots you in the pursuit of some thing he wants, it is never violence, but rather "self defence".
I watched a documentary about the Roman Empire the other day and apparently as far as they were concerned, every campaign they ever fought was in self defence...
Posted by: Mark | Wednesday, March 26, 2014 at 12:15 AM
"Well, we need to have institutions which ensure that those making the decisions about public policy *are* thinking rationally about what they are doing."
I think it would be better to try to severely limit the scope of 'public policy' by cutting the government down to size, along with those institutions which are funded through state violence.
Posted by: Richard Carey | Tuesday, March 25, 2014 at 02:16 PM
So,.. you don't believe that institutions are needed?
Posted by: Mark | Monday, March 24, 2014 at 11:52 PM
"If you wanted people to have some direct say..." Erm rather. I would like us all to have a total "direct say" on our own lives in every respect that does not involve force or fraud to others.Then we wouldn't have to pursue your doomed goal of rational institutions shaped from the crooked timber of mankind.
Posted by: Tom | Monday, March 24, 2014 at 12:23 AM
Well, we need to have institutions which ensure that those making the decisions about public policy *are* thinking rationally about what they are doing. At the moment people decide which representative they will elect based on tribal loyalty - or soundbites designed to appeal to the ignorant. Party power is the major problem with parliamentry democracy - due to the marketing power of the party the individual representatives are unable to exercise their own judgement and are generally selected for loyalty rather than wisdom. The parties obviously chase the same middle ground for votes.
So I say break the power of parties - people can only be elected to parliament only as individuals - no special bbc concesions given to party leadership.
There is less room for people to get emotional ehen choosing a representative than when discussing a specific policy and the parliamentary model should limit the ill effects of any poor decisions.
I suppose you could combine it with a degree of direct democracy if you wanted people to have some direct say on policy.
Posted by: Mark | Sunday, March 23, 2014 at 11:46 PM
A couple of points come to mind...
There's a massive difference between saying "I think that it's rather foolish that you... ... why not reconsider" and "I think it's rather foolish that you... ...so you are to be prohibited from doing it", and I'm fairly certain that the popularity of the "Big Mac" isn't due to mass hysteria.
Other than that, I largely agree with your point about the dangers of mass hysteria and groupthink.
Posted by: Pogo | Sunday, March 23, 2014 at 04:24 PM
That people make stupid decisions for themselves does not logically lead to having others make those decisions. Does it? Who decides who decides? And how do they qualify? Do the stupid people decide who is not stupid? How does that work? And is anybody not stupid about something?
Posted by: Tom | Sunday, March 23, 2014 at 03:43 PM
That's true, the odd big mac probably won't kill you - It's not just my opinion that they taste bad however (there is a definite difference between flavour and the rush you can sometimes get from eating rather tasteless foods)- many experts agree - and looking at the waistlines of Britain, I'm not convinced most people confine themselves to the odd unhealthy snack. I personally know people who have eaten and drunk themselves into sickness and an early grave, so I can tell you - it happens. I feel it's probably fairly widespread.
BTW If simply speaking out when you see people doing something you think is foolish is being an intellectual - then I'll be one. That isn't what the word normally means though.
Please bear in mind that the original context of this discussion was policy mistakes made by mass organisations with terrible human consequences.
Presumably, even if you happen to be the world's greatest fan of Macdonald's, you would agree with the more general point that masses of people often get swept up emotionally into doing things which are immoral and ultimately against their own self interest. Were the British people wise to send millions of their sons to be maimed and killed in the Great War? Were German women wise to support an aggressive nationalism which ultimately resulted in the destruction of their own homes, their rape, the death of their children? These were mistakes. Terrible, stupid mistakes born of mass society.
If you need a slightly more contemporary example - the death of Princess Diana made me realise that mass insanity wasn't just something which happened in the past or abroad. The mob is scary, it can destroy you, can form at any time and once it forms, it can't be reasoned with.
Posted by: Mark | Sunday, March 23, 2014 at 01:57 AM
*which don't even taste nice* - in your opinion maybe, yet a very large number of folk, which includes me as an occasional "Big Mac" consumer, would disagree with you.
As to "destroying their health", nonsense. I remember listening to an eminent nutricionist on R4 who shocked the "right on" BBC presenter by claiming that "there's no such thing as 'junk food'", on the basis that the body breaks everything down into the chemicals it needs, excretes what is superfluous and cares not whether said chemicals come from greasy burgers or organic tofu. Consequently the odd Big Mac won't do you any harm at all... He suggested that there is however a 'junk diet' and living on the things is a different kettle of fish altogether. But that's a problem of the eater, not the supplier.
In actuality you are taking the "intellectual" route of "saving (lesser) people from themselves" by attempting to restrict access to something of which you disapprove.
And there's nothing wrong with my sense of taste either, other than the ravages of old age!
Posted by: Pogo | Saturday, March 22, 2014 at 08:39 AM
Well... it's true that they were a massive improvement on wimpy's. I'll give them that.
But ---- Macdonalds and coca cola provide resonably tasty and nutricious food?
Is the observation that people are willing to destroy their health eating things *which don't even taste nice* really the overly intellectualised position here?
I'd say that's more of a common sense argument.
On the oher hand, we have someone who allows his faith in freedom to overrule his sense of taste entirely...
Posted by: Mark | Saturday, March 22, 2014 at 04:52 AM
I think it is pretty clear that there is just as much massed stupidity as there is massed wisdom... ...not to mention the fact that macdonalds and coca cola are multi- billion dollar companies.
Ah... Spoken like a true "intellectual". Those companies have become multi-billion dollar enterprises by providing tens of millions of people with something upon which they are willing voluntarily to spend their discretionary income.
Agreed that they have occasionally used their wealth to limit competition, but more often than not, the stupidities of the legal departments of said companies have served to make them look foolish and provide free advertising to those they wish to put out of business.
The fact that the products that they supply do not meet with the criteria of the intellectual / faddy groups in no way invalidates their function. MacDs provides reasonably tasty and nutricious food at reasonable prices, and as far as I'm aware, they've poisoned fewer customers than many other outfits both large and small. The same applies to Coca Cola, it's a fizzy drink that many enjoy. OK, it has a lot of sugar in it and, this week, sugar is the new cocaine, but next week it will be OK and forgotten as the next special-interest group becomes briefly newsworthy.
Posted by: Pogo | Friday, March 21, 2014 at 08:40 AM
Hmmmm... I think it is pretty clear that there is just as much massed stupidity as there is massed wisdom - look at the first half of the twentieth century - not to mention the fact that macdonalds and coca cola are multi- billion dollar companies. The wisdom of crowds holds true to the extent to which people are thinking individually - what I am talking about here is the tendency of individuals to abandon their own thoughts and emotionally attach themselves to some cause or otherwise to simply copy what others do - and this is clearly widespread. Perhaps it isn't helpful to call a society or civilisation "stupid" - but what I mean is that our herd instinct often leads perfectly intelligent people to do things which are utterly immoral and against their own interests.
I would imagine that my solution to this problem would be largely the same as yours - I believe that there are ideas with sufficiently universal appeal that it is possible for rationality to bring us together - and yes, these ideas are simple - so simple a baby can understand them. But before society can be run along the lines of this simple wisdom, we must be individuals, think as individuals and do everything to give power to individuals. We disagree, I think, in that I view this as a deeply unnatural state - the individual can only emerge from a certain institutional arrangement. I think history is on my side with this one.
Secondly, i think we disagree in that while self-interest is a principle both simple and with universal appeal, it's not actually the fundamental moral driving force - it is in our self interest to accept a deeper moral code.
Posted by: Mark | Friday, March 21, 2014 at 12:07 AM
There is no mass support for thousands of laws of which the masses know nothing. Ignorant intellectuals prattle about "regulation" in the City for example without knowing that it is massively and (largely) uselessly regulated already. One good test of the natural justice of a law is whether it could be understood by a person of minimal intelligence. He or she will be bound by it and his or her ignorance will be no excuse. Can it be just to be bound by a law you need a thousand dollar an hour lawyer to explain to you? I don't share your pessimism about mass stupidity. The vast majority are perfectly clever enough to take care of themselves, their families and their civic duties. The stupidity in our society largely emanates from intellectuals who believe great knowledge of, say, linguistics translates into superior wisdom on economics. The massed wisdom of those you think stupid should trump the stupidity of the elites, just as the pound spent by millions trumps the millions spent by a few in determining what comes to market.
Posted by: Tom | Thursday, March 20, 2014 at 05:37 PM
Laws and government policy in a mass society *have* to based on something other than the whims of a corrupt political class - they must have some emotional or rational justification in order to gain the mass support necessary to put plans into action.
Hitler's power did not primarily grow from the barrel of a gun - it grew from his ability to enflame the emotions of those who listened to his speeches. And I would say that this is the major problem - not that natural law/morality is helpless before force, but rather that people are prone to becoming overly emotional about things which they don't fully understand and that they therefore don't stop to consider what the right thing to do might be.
The history of human civilisation is the history of stupidity - talking about what is right is the only way to make a difference.
Posted by: Mark | Thursday, March 20, 2014 at 03:20 PM