Are There Too Many Laws?

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.

 

Rage and Retribution

by Anonymous

What do emotions have to do with justice? A lot, it seems, when we survey the events of recent weeks in the USA. Here I call upon the so-called ‘moral sentimentalists,’ who argue that emotions play a leading role in our determinations of what is morally right and wrong, and of whom many believe that emotions are the primary source of moral knowledge.

It seems to me that moral sentimentalism has much to say when it comes to strong emotional responses to issues of injustice and criminal punishment. These responses, when viewed through the sentimentalist lens, might change the ways we view theories of just punishment.

Indeed, I would argue that emotional reactions to issues of injustice, and the sentimentalist analysis of these reactions, should indeed influence the ways we think about punishment and moral justifications for it. Specifically, the sentimentalist view might suggest that retribution (as opposed, for example, to deterrence, rehabilitation, or incapacitation) is well-suited to honour the feelings of those harmed by injustice.

In other words, while retributive justice is often criticised as being uncivilised and vindictive, retribution is perhaps uniquely able to acknowledge the pain and suffering that arises from injustice.

Consider the recent cases of Ahmaud Arbery, an unarmed 25-year-old black man who was shot and killed by Gregory and Travis McMichael, a former police officer and his son (both of whom are white), on 23 Februrary 2020, and George Floyd, an unarmed 46-year-old black man who was murdered by a white police officer, Derek Chauvin, on 25 May 2020.

These incidents have come to serve as reminders of the violent racism that persists in the United States. Floyd’s case, in particular, illustrates the deep-seated racism that plagues police officers and informs policing practices. Arbery’s is reminiscent of the horrifying and relatively recent period in U.S. history when extralegal killings of black people by white vigilantes were common.

Both of these tragedies have rightly sparked disgust and outrage. Those protesting Arbery’s murder gathered holding signs stating, ‘We will get justice.’ Arbery’s mother said, 'I want all hands involved in my son’s murder to be prosecuted to the highest … my son died, so they should die as well.' Floyd’s murder has motivated widespread protests in cities around the world, with activists demanding justice and proclaiming, ‘No justice, no peace.’

These incidents—as well as many other cases in which black individuals have been killed by police or other white offenders—suggest that often, our first instincts are not to turn to deterrence, rehabilitation, or some other conception of punishment. Anthony Walsh and Virginia Hatch, in an article for the New Criminal Law Review in 2018 entitled, ‘Capital Punishment, Retribution, and Emotion: An Evolutionary Perspective,’ capture this well:

‘A retributive punishment justification is the only justification associated with deep emotions related to social concern. When people hear of some vicious criminal act, they become angry, outraged, and disgusted, and their first inclination is to want to exact some sort of retribution; it is highly unlikely that their first thoughts should be of deterrence or rehabilitation.’

The murders of Ahmaud Arbery and George Floyd highlight two features of emotional responses to injustice and the retributive urge:

1. When people hear about these acts of injustice, the kinds of punishments they seek for the offenders are indeed retributive. Impassioned calls such as 'Justice for Floyd,' and 'My son died, so they should die as well,' while perhaps understandable, do not imply an appeal to deterrence, and certainly not rehabilitation. These statements suggest that those who committed such crimes should be punished as a result of their injustices. They should be subjected to some harm because of the harms they caused.

2. The kinds of punishments for which many ask hinge heavily on the notion of desert, or the extent to which the offenders are deserving of punishment. Of course, retribution is the theory of punishment most concerned with desert. Deterrence, rehabilitation, and incapacitation are not the first ideas that come to mind in cases like these. Instead, many imagine that Derek Chauvin, as well as those who murdered Ahmaud Arbery, deserve to be punished.

All of this is to say that, although certain criticisms of retribution may be warranted, it is important to recognise that the theory occupies an important space within societies’ sensibilities and moral intuitions surrounding justice and punishment. If it is indeed the case, as the moral sentimentalists argue, that morality and emotions are closely tied, then emotional responses to injustice, and the retributive urges that accompany them, should not be deemed morally irrelevant.

While state-sanctioned punishment certainly should not be motivated by rage and vindictiveness, it is important to see that, in some cases, retributive urges will be strong and understandable. Although there are other theories that take more utilitarian and dispassionate approaches to punishment, it seems that they may not explicitly acknowledge the suffering caused by acts of injustice. Retribution, at the very least, honours this kind of pain.

Cardinal Pell: Natural and Inalienable Rights

The Church of St Cyriac, Lacock, by GB_1984

Posted by Richard W. Symonds

The principle of the presumption of innocence is of extreme importance, and the case of Cardinal George Pell has implications for the respect for—and security of—this principle.

That one is considered innocent until proven guilty is a vital pre-condition for our survival and well-being within a civilised society. Undermining such jurisprudence can lead to catastrophic miscarriages of justice which ultimately threaten our humanity—in fact, yours and mine.

The accused is not required to defend or prove their innocence—it is for the accuser to prove guilt—beyond reasonable doubt. It is one of the foundational legal principles—a bedrock of our civilisation: 'The burden of proof is on the one who declares, not on one who denies'. Or Ei incumbit probatio qui dicit, non qui negat in the ancient Latin.

Presumption of innocence is a legal right of the accused in a criminal trial, and an international human right embodied under Article 11 of the UN Universal Declaration of Human Rights.

A just law must be a fair law, which punishes the guilty, not the innocent. Presumption of innocence is an immunity against unjust accusations.

In the case of Cardinal George Pell, a disturbing and dislocating miscarriage of justice has been exposed within Australia's justice system—and presumption of innocence was almost lethally compromised and undermined.

A basic history of events—a timelined chronology if you will—would help:

• July 16 1996 — Bishop George Pell is appointed Archbishop of Melbourne. A former choirboy later testifies that the bishop molested him and his friend—both aged 13—in the vestry of St. Patrick’s Cathedral in Melbourne that year, after Mass.
• March 26 2001 — Archbishop Pell becomes Archbishop of Sydney.
• October 21 2003 — Pope John Paul II makes Archbishop Pell a Cardinal.
• February 25 2014 — Pope Francis appoints Cardinal Pell as his Finance Minister — Prefect of the Secretariat for the Economy.
• April 8 2014 — One of the choirboys dies aged 31, of a heroin overdose, without alleging the molestation by Pell, in fact telling his mother he had not been abused by Pell.
• August 5 2014 — Victoria police establish a task force to investigate how religious and other non-government organizations [NGO's] deal with abuse accusations.
• June 18 2015 — The surviving choirboy gives his first statement to the police, claiming sexual abuse by Cardinal Pell.
• December 23 2015 — The Victoria Police task force appeals publicly for information relating to allegations of sexual abuse while Cardinal George Pell was Archbishop fo Melbourne.
• March 1 2016 — Cardinal Pell testifies by video link from Rome, to the Australian child abuse inquiry. Pell is critical on how the Church has dealt with paedophile priests in the past, but *denies he had been aware of the extent of the problem.
• October 19 2016 — Victoria police go to Rome to question Cardinal Pell, who hears details of the choirboy’s abuse allegations against him for the first time.
• June 29 2017 — Police charge Cardinal Pell with multiple counts of historical sexual abuse. This makes him the most senior Catholic cleric to be charged in the Church’s abuse crisis. Pell denies the accusations and takes leave of absence from the Vatican to return to Australia to defend himself.
• July 26 2017 — Cardinal Pell makes his first court appearance on charges that he sexually abused multiple children in Victoria decades earlier. Details of the allegations are not made public. Pell vows to fight the allegations.
• May 1 2018 — A Magistrate commits Cardinal Pell to stand trial. He pleads not guilty to all charges.
• May 2 2018 — A Judge separates the charges into two trials; the first dating to his tenure as Archbishop of Melbourne, and the other when he was a young priest in Ballarat during the 1970's.
• December 11 2018 — The jury unanimously convicts Cardinal Pell on all charges in the Melbourne case.
• February 26 2019 — A suppression order forbidding publication of any details about the trial is lifted. Prosecutors abandon trial on the Ballarat charges.
• March 13 2019 — The judge sentences Cardinal Pell to six years in prison, on five sex abuse convictions, in which he must serve 3 years and 8 months before he is eligible for parole.
• August 21 2019 — Victoria Court of Appeal rules 2–1 to uphold the convictions, but there is ‘stinging dissent’ by that Court's leading criminal law expert.
• The High Court, Australia's top court, in an unusual procedural move, agrees to hear Cardinal Pell's leave to appeal, and his actual substantive appeal, concurrently.
• April 7 2020 — All seven judges of the High Court of the Australian Court of Appeal quash the conviction of Cardinal George Pell. In a volte-face, they unanimously agree the appeal has succeeded, dismiss all convictions, and release Cardinal Pell immediately—after he spent 13 months in high-security prisons. 

In overturning the jury's decision of December 2018, the seven High Court judges said the jury, ‘acting rationally on the whole of the evidence, ought to have entertained a doubt as to the applicant's guilt with respect to each of the offences for which he was convicted’.

There was ‘a significant possibility that an innocent person has been convicted, because the evidence did not establish guilt to the requisite standard of proof’. The High Court referred to what it called ‘the unchallenged evidence of the opportunity witnesses’ at the 2018 trial, which suggested there was cause for doubt.

This case has attracted world-wide attention for good reason.

What lies at the heart of our justice system is Lord Sankey's 'golden thread' which runs through criminal and common law: Guilt must be proved by the accuser's prosecution beyond any reasonable doubt. This undoubtedly did not take place in before the High Court judges intervened this April 2020 to make just the injustice.

It is better many guilty go free rather than one innocent is wrongly convicted and jailed for a crime they did not commit.

The Cardinal is entitled to be presumed innocent because that is what the Presumption of Innocence is all about—innocent until proven guilty.

Beware the spirit of the age. Alan Ryan, a professor of politics at Princeton University, sounded the alert thirty-two years ago: ‘Natural and inalienable rights to life, liberty and the pursuit of happiness have fallen into disrepute, along with a faith in reason and reason’s dictates.’

The Scales of Justice

Lady Justice, by Mimi

Posted by Jeremy Dyer

The beauty of the rose
Is balanced by the thorn
That's the way the story goes,
Right from the day you're born.

No fields of joy without an end
No Christmas cracking time
No party day around the bend
To look back on your prime.

On the other schizo hand
My childhood wasn't bad
Or so the therapist said
When he held my hand.

Eons ago the lords of glory
Ruled the righteous earth.
Now a twisted murder story
Tells us what we're worth.

---

They say a cynic's never wrong
He can't be disappointed.
But is his view a correct sum
Of what life has anointed?

Shatter me in your eyes
Consume me with your lips
Find me love that never dies
That's not from movie clips.

Am I happy? What a question!
Please don't query life's direction.
Is it fate or circumstance,
Or am I my own providence?

Am I trapped or am I free?
Am I the me I want to be?
The urgent answer that we seek
Won't be on tv this week.

Healthcare ... A Universal Moral Right

A Barber-surgeon practising blood-letting

Posted by Keith Tidman

Is health care a universal moral right — an irrefutably fundamental ‘good’ within society — that all nations ought to provide as faithfully and practically as they can? Is it a right in that all human beings, worldwide, are entitled to share in as a matter of justice, fairness, dignity, and goodness?

To be clear, no one can claim a right to health as such. As a practical matter, it is an unachievable goal — but there is a perceived right to healthcare. Where health and healthcare intersect — that is, where both are foundational to society — is in the realisation that people have a need for both. Among the distinctions, ‘health’ is a result of sundry determinants, access to adequate healthcare being just one. Other determinants comprise behaviours (such as smoking, drug use, and alcohol abuse), access to nutritious and sufficient food and potable water, absence or prevalence of violence or oppression, and rates of criminal activity, among others. And to be sure, people will continue to suffer from health disorders, despite all the best of intentions by science and medicine. ‘Healthcare’, on the other hand, is something society can and does make choices about, largely as a matter of policymaking and access to resources.

The United Nations, in Article 25 of its ‘Universal Declaration of Human Rights’, provides a framework for theories of healthcare’s essential nature:

“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including . . . medical care and necessary social services, and the right to security in the event of . . . sickness . . . in circumstances beyond his [or her] control.”

The challenge is whether and how nations live up to that well-intentioned declaration, in the spirit of protecting the vulnerable.

At a fundamental level, healthcare ethics comprises values — judgments as to what’s right and wrong, including obligations toward the welfare of other human beings. Rights and obligations are routinely woven into the deliberations of policymakers around the world. In practice, a key challenge in ensuring just practices — and figuring out how to divvy up finite (sometimes sorely constrained) material resources and economic benefits — is how society weighs the relative value of competing demands. Those jostling demands are many and familiar: education, industrial advancement, economic growth, agricultural development, security, equality of prosperity, housing, civil peace, environmental conditions — and all the rest of the demands on resources that societies grapple with in order to prioritise spending.

These competing needs are where similar constraints and inequalities of access persist across socioeconomic demographics and groups within and across nations. Some of these needs, besides being important in their own right, also determine — even if sometimes only obliquely — to health and healthcare. Their interconnectedness and interdependence are folded into what one might label ‘entitlements’, aimed at the wellbeing of individuals and whole populations alike. They are eminently relatable, as well as part and parcel of the overarching issue of social fairness and justice.

The current vexed debate over healthcare provision within the United States among policymakers, academics, pundits, the news media, other stakeholders (such as business executives), and the public at large is just one example of how those competing needs collide. It is also evidence of how the nuts and bolts of healthcare policy rapidly become entangled in the frenzy of opposing dogmas.

On the level of ideology, the healthcare debate is a well-trodden one: how much of the solution to the availability and funding of healthcare services should rest with the public sector, including government programming, mandating, regulation, and spending; and how much (with a nod to the laissez-faire philosophy of Adam Smith in support of free markets) should rest with the private sector, incluidng businesses such as insurance companies, hospitals, and doctors? Yet often missing in all this urgency and the decisions about how to ration healthcare is that the money being spent has not resulted in best health outcomes, based on comparison of certain health metrics with select other countries.

Sparring over public-sector versus private-sector solutions to social issues — as well as over states’ rights versus federalism among the constitutionally enumerated powers — has marked American politics for generations. Healthcare has been no exception. And even in a wealthy nation like the United States, challenges in cobbling together healthcare policy have drilled down into a series of consequential factors. They include whether to exclude specified ailments from coverage, whether preexisting conditions get carved out of (affordable) insured coverage, whether to impose annual or lifetime limits on protections, how much of the nation's gross domestic product to consign to healthcare, and how many tens of millions of people might remain without healthcare or be ominously underinsured, among more — precariously resting on arbitrary decisions. True reform might require starting with a blank slate, then cherry-picking from among other countries’ models of healthcare policy, based on their lessons learned as to what did and did not work over many years. Ideas as to America’s national healthcare are still on the anvil, being hammered by Congress and others into final policy.

Amid all this policy ‘sausage making’, there’s the political sleight-of-hand rhetoric that misdirects by acts of either commission or omission within debates. Yet, do the uninsured still have a moral right to affordable healthcare? Do the underinsured still have a moral right to healthcare? Do people with preexisting conditions still have a moral right to healthcare? Do people who are older, but who do not yet qualify for age-related Medicare protections, have a moral right to healthcare? Absolutely, on all counts. The moral right to healthcare — within society’s financial means — is universal, irreducible, non-dilutable; that is, no authority may discount or deny the moral right of people to at least basic healthcare provision. Within that philosophical context of morally rightful access to healthcare, the bucket of healthcare services provided will understandably vary wildly, from one country to another, pragmatically contingent on how wealthy or poor a country is.

Of course, the needs, perceptions, priorities — and solutions — surrounding the matter of healthcare differ quite dramatically among countries. And to be clear, there’s no imperative that the provision of effective, efficient, fair healthcare services hinge on liberally democratic, Enlightenment-inspired forms of government. Apart from these or other styles of governance, there’s more fundamentally no alternative to local sovereignty in shaping policy. Consider another example of healthcare policy: the distinctly different countries of sub-Saharan Africa pose an interesting case. The value of available and robust healthcare systems is as readily recognized in this part of the world as elsewhere. However, there has been a broadly articulated belief that the healthcare provided is of poor quality. Also, healthcare is considered less important among competing national priorities — such as jobs, agriculture, poverty, corruption, and conflict, among others. Yet, surely the right to healthcare is no less essential to these many populations.

Everything is finite, of course, and healthcare resources are no exception. The provision of healthcare is subject to zero-sum budgeting: the availability of funds for healthcare must compete with the tug of providing other services — from education to defence, from housing to environmental protections, from commerce to energy, from agriculture to transportation. This reality complicates the role of government in its trying to be socially fair and responsive. Yet, it remains incumbent on governments to forge the best healthcare system that circumstances allow. Accordingly, limited resources compel nations to take a fair, rational, nondiscriminatory approach to prioritising who gets what by way of healthcare services, which medical disorders to target at the time of allocation, and how society should reasonably be expected to shoulder the burden of service delivery and costs.

As long ago as the 17th century, René Descartes declared that:

‘... the conservation of health . . . is without doubt the primary good and the foundation of all other goods of this life’. 

However, how much societies spend, and how they decide who gets what share of the available healthcare capital, are questions that continue to divide. The endgame may be summed up, to follow in the spirit of the 18th-century English philosopher Jeremy Bentham, as ‘the greatest happiness for the greatest number [of people]’ for the greatest return on investment of public and private funds dedicated to healthcare. How successfully public and private institutions — in their thinking about resources, distribution, priorities, and obligations — mobilise and agitate for greater commitment comes with implied decisions, moral and practical, about good health to be maintained or restored, lives to be saved, and general wellbeing to be sustained.

Policymakers, in channeling their nations’ integrity and conscience, are pulled in different directions by competing social imperatives. At a macro level, depending on the country, these may include different mixes of crises of the moment, political and social disorder, the shifting sands of declared ideological purity, challenges to social orthodoxy, or attention to simply satiating raw urges for influence (chasing power). In that brew of prioritisation and conflict, policymakers may struggle in coming to grips with what’s ‘too many’ or ‘too few’ resources to devote to healthcare rather than other services and perceived commitments. Decisions must take into account that healthcare is multidimensional: a social, political, economics, humanities, and ethics matter holistically rolled into one. Therefore, some models for providing healthcare turn out to be more responsible, responsive, and accountable than others. These concerns make it all the more vital for governments, institutions, philanthropic organizations, and businesses to collaborate in policymaking, public outreach, program implementation, gauging of outcomes, and decisions about change going forward.

A line is thus often drawn between healthcare needs and other national needs — with the tensions of altruism and self-interest opposed. The distinctions between decisions and actions deemed altruistic and those deemed self-interested are blurred since they must hinge on motives, which are not always transparent. In some cases, actions taken to provide healthcare nationally serve both purposes — for example, what might improve healthcare, and in turn health, on one front (continent, nation, local community) may well keep certain health disorders from another front.

The ground-level aspiration is to maintain people’s health, treat the ill, and crucially, not financially burden families, because what’s not affordable to families in effect doesn’t really exist. That nobly said, there will always be tiered access to healthcare — steered by the emptiness or fullness of coffers, political clout, effectiveness of advocacy, sense of urgency, disease burden, and beneficiaries. Tiered access prompts questions about justice, standards, and equity in healthcare’s administration — as well as about government discretion and compassion. Matters of fairness and equity are more abstract, speculative metrics than are actual healthcare outcomes with respect to a population’s wellbeing, yet the two are inseperable.

Some three centuries after Descartes’ proclamation in favour of health as ‘the primary good’, the United Nations issued to the world the ‘International Covenant on Economic, Social, and Cultural Rights’ and thereby placing its imprimatur on ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. The world has made headway, where many nations have instituted intricate, encompassing healthcare systems for their own populations, while also collaborating with the governments and local communities of financially stressed nations to undergird treatments through financial aid, program design and implementation, resource distribution, teaching of indigenous populations (and local service providers), setting up of healthcare facilities, provision of preventions and cures, follow-up as to program efficacy, and accountability of responsible parties.

In short, the overarching aim is to convert ethical axioms into practical, implementable social policies and programs.

Doublethink 21 - Cost of Crime