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| The Roman philosopher, Cicero. In his book, De Legibus, he suggests laws should be dawn from ‘the profoundest philosophy’. |
Posted by Keith Tidman
Laws tend to accrete, one upon another. Yet, doesn’t this buildup of laws paradoxically undermine the ‘rule of law’? Wasn’t Montesquieu right to say that ‘useless laws weaken the necessary laws’, and by extension today enfeeble the rule of law?
The rule of law holds that every person and institution is equally accountable to the law. It is society’s safeguard against disorder. This presupposes that laws, in promoting the individual good, also promote the common good. The elixir to cure the ailments of society is often seen as dwelling in zealous lawmaking and rulemaking, which ironically may create even worse fissures within the rule of law itself and within the resulting social order. However mistaken such belief in the tonic may be, this regularly seems to be the guiding ideal and aspiration.
Yet, aspirations aside, the reality is that the proliferation of laws and regulations leads to redundancy, confusion, contradiction, and irrelevance among the laws that accrue over time. These factors fog up the lens through which people view laws as either just or unjust. In turn, citizens typically remain unaware of their actual liability to these amassed laws, and as a practical matter enjoy little understanding of how laws might be enforced.
Compounding the byzantine body of laws and regulations is the politicisation of their application. Governments of different political ideological leanings may well shift, especially as regimes shift, affecting the interpretation of laws. Laws being, as Thomas Hobbes wrote in Leviathan, ‘not counsel, but command’. Governments might make arbitrary decisions as to how to enforce the laws and regulations, and against whom. Political partisanship and the hazard of overcriminalisation can be the not-uncommon consequence.
When Winston Churchill warned, ‘If you have ten thousand regulations, you destroy all respect for the law’, to some people the cautionary note may have seemed an exaggeration, offered for effect. Now, many countries creak under an evermore bloated number of complex, cumbersome laws and regulations, with rule-of-law significances.
A core supposition of law is that citizens freely choose from among alternative behaviours in the daily conduct of their lives. Whether people really do have such uninhibited decision-making and choice, laws make sense, from the practical standpoint of society holding individuals accountable, only if the operative supposition of government and the community is that people deliberate and act through self-direction.
Laws and regulations ought to mirror society’s shared values, norms, conventions, practices, and customs, in order for justice to emerge. However, despite the influence of social values on laws, ‘legal’ and ‘illegal’ are not necessarily equivalent to ‘moral’ and ‘immoral’; principles of legality and morality may be only obliquely correlated.
Meanwhile, it’s precisely because of the influence of social values that laws ought to remain malleable going into the future, as core needs of the community become reimagined and reframed with time. The inevitability of novel circumstances in the future requires pliability in human thinking, and thus in law.
If laws and regulations are allowed to calcify, they shed relevance in longer-term service of the community. They no longer foster the welfare of the people, which along with social order is foundational to laws’ existence. ‘The welfare of the people is the ultimate law’, Cicero presciently observed. Outdated laws and regulations ought to be purged, barring new laws from heaping upon the crustaceous remnants of old laws. Preserving the best about rule-of-law principles requires housecleaning.
Everyday citizens often perceive the law as an impenetrably dense mass, understood and plied by a priesthood of specialists who accommodate select interests. Laws’ unfortunate opaqueness propagates ‘ignorance of the law’, despite this go-to plea not being a legally valid excuse.
The risk is that society tilts increasingly toward unequal justice, much to the disadvantage of the poor, racial and ethnic minorities, and other alienated, underrepresented subgroups less equipped to self-endorse, or to accrue and deploy power and influence to their advantage. Vulnerability and punishment and discretion are frequently proportional to financial means, in plutocratic fashion. And the rule of law, meanwhile, loses its glint.
And so, in advising that ‘A state is better governed with few laws, and those laws strictly observed’, in light of his time in history René Descartes seems commonsensical. Yet, ever since, many countries have jettisoned this simple prescription.
The profusion of laws compacting outdated and useless laws cannot continue indefinitely, without risking an irreparable stress point for jurisprudence’s workability and integrity. A moratorium on disgorging new laws, however, is insufficient alone. It is vital to clear the overgrown brush that threatens to choke the consistency, intelligibility, reasonableness, and applicability of what we want to restore by way of the rule of law and sensible jurisprudence.
That’s an achievable undertaking. The prospect of our returning to first principles regarding the rule of law as a credible and viable doctrine, beyond a muffled slogan, makes the enterprise of clearing the thicket of laws worthwhile if we want a just society.
9 comments:
I do wonder, Keith, if there might not be an element of wishful thinking and over-simplification in our great philosophers' words this time? Because, surely, whenever we find something disagreeable in life, we expect governments to fix it, and they can only do this through laws and regulations backed by, well, more laws. take the sad cases of American Black citizens being killed in various cruel ways by policemen - a topic you have talked about here indeed! We conclude that there should be a LAW prohibiting the strangulations of someone by a police officer, or that the police should have to warn people before kicking in their door and shooting whoever is standing there. And yes, the laws COULD be said to exist already, and surely they do - but equally surely if laws are general then they are more easily ignored and more easily misunderstood. So more laws, pinning everything down specifically - well, could it be that this is in fact a sensible strategy?
There’s no question, Martin, that society, to run in an orderly manner, needs laws governing behaviour, to protect against the worst instincts. The alternative would be anarchy, to which surely hardly anyone would subscribe. But, perhaps, the choice isn’t so stark as being between the chaos of an out-of-control legal system, and on the other hand anarchy. The impulse that every social ill is fixable through yet another law is untenable and unsustainable.
If you go online to seek out how many federal laws, state laws, and regulations that populate the United States' legal landscape today, the sources (academic and otherwise) lament one of two things. Either, remarkably, that no one knows the actual answer because catalogues of laws have gotten so unwieldy. Or they estimate mind-numbing numbers, with vast ranges.
So, for want-to-do-the-right-thing attempts at accounting, estimates cite tens of thousands of laws and hundreds of thousands of regulations. Many of which are redundant, irrelevant, outdated, nonsensical, unenforceable, or turn out to introduce inadvertent harms. We’re left with a disturbing picture of laws and regulations having run amok.
The result is more than just an entangled quagmire. And it’s certainly more than just more laws trustingly conceived as the fix for prior imperfect laws, with proliferating laws and regulations as the innocent unintended consequence. In fact, I see the former tendency as precisely one of the culprits for the unhelpfully amassing of laws.
Rather, the legal pandemonium hampers the effective, responsible practice of jurisprudence. This has grave implications, on the ground, for rule-of-law ideals, reasonable accountability, fairness, equality, and a sensible system of justice that serves both the individual and common good, all at risk of obstruction by the fog of law.
You raise an interesting case, Martin, of the alarming number of police killings of citizens in the United States in general, and of police killings of minorities in particular. As well as how police officers, in many people’s minds, are too rarely held to account in courts of law.
The thing is, I’d argue that sufficient laws already exist to govern matters like second-degree murder, where a ‘killing is intentional or reckless and occur in the spur of the moment’. (First-degree murder, instead, involving planning.) Likewise, sufficient laws already govern, say, ‘assault and battery’, as well as civil rights.
It’s not, therefore, that there are too few laws. And it’s not, even, that attorneys general are unreasonably unwilling to indict. Rather, it’s more a case that jurors have been regularly reluctant to convict, instead seeming sympathetic to the circumstances that police officers face.
Jurors have tended to regard police officers as working under highly unusual (even unique) conditions, where they face threats on their own lives requiring split decisions under extraordinary pressure. They seem uncomfortable possibly second-guessing, and perhaps deferring.
I see all this as less a call for layering on of additional laws — to do so would unlikely produce different outcomes — but more a complex sociological concern that with effort and time might prove tractable, as well as a need for systemic police reform.
I guess what `I'm arguing is that 'yes' there is a law for everything already, but there are other laws probably sign something different, let alone 'judgements' and 'conventions'. So every time you want to REALLY prohibit something you seem to need a shiny new law! Something very clear and specific. What you are arguing for is general principles and common sense. But that may not work in the real world?
Back in the day, Justinian ordered that som 2,000 books and 3 million lines of legal text be reduced to 12 bronze tablets displayed in the Forum.
But I think we may be missing something. The effects of laws go far beyond the laws themselves. One wisely chosen law might make a hundred redundant. It is not as if laws are directly coupled with the situations they address, although of course they often are.
Well, Thomas, that Justinian seemed like a smart guy! I don't know who in the United States might wield Justinian-like power to order that all law books get reduced to twelve bronze tablets, but Justinian assuredly set a good example.
I got an email a few days ago, Thomas, that briefly told me about the so-called Code of Hammurabi. I gather that Hammurabi, who ruled Babylonia between 1792 BCE and 1750 BCE, was responsible for development of one of the earliest and most complete written legal codes. The Hammurabi code of laws comprised a compact 282 rules, carved onto a massive black stone pillar. Clearly, Babylonian ‘lawyers’ weren’t paid by the hour.
I read the Code of Hammurabi some time ago. As I remember, it prioritised the good of society over the individual, while the emphasis today is more on the individual. It is, yes, an example of a compact code which apparently was effective. I see that there are depictions of Hammurabi in various US government buildings, including the Capitol.
Keith et al, good debate/discussion. Mention of the Hammurabi Code brings to mind the original consideration of "laws for human behavior" such as the Golden Rule dating to Egyptian times c.2040-1650 BCE forward through Confucian times to the earliest "democracy" in Greece. Mesopotamia city states (5400 BCE) were originated in religious beginnings with shaman assuming leadership and establishing "laws". Philosophy Professor Simon Blackburn says "The Golden Rule can be found in some form in almost every ethical tradition".
It the Golden Rule (a concept appearing prominently in Buddhism, Islam, Christianity, Hinduism, Judaism, Taoism, Zoroastrianism) that has been only recently challenged by the Platinum Rule (notably in a 2015 TED Talk by Brendan Schulz).
I would propose that laws could be based upon the ethical philosophy that we/you have to treat people the way they want to be treated, not the way you want to be treated, thus eliminating our excess of laws.
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