Author Archives: Phil

Towards the rule of law

Here’s the opening of a paper I’ve just submitted:

Law, counter-law and the rule of law: resources for radicals

The law and the ideal of the rule of law are often associated with the maintenance of the status quo, and with ideas of ‘law and order’. But is the rule of law an inherently reactionary ideological formation? Do ideas about law have anything to offer to the perspective of a classless society? This paper sets out some basic definitions of the law, and of the rule of law, and considers the impact on them of Marxist and Gramscian critiques of ideology. An examination of some attempts at counter-law and regulation from below leads to the conclusion that the model of law, and the ideal of the rule of law, may offer more resources for radical and progressive movements, and for democratic politics more generally, than Marx’s or Gramsci’s critique would seem to imply.

The collection it’s intended for has an abolitionist & anarchist slant; I don’t usually refer to ‘the perspective of a classless society’ as a framing device. (Not that it’s necessarily a bad framing device.) The “attempts at counter-law” I examine are those associated with gangs in Salford (via Walklate), the IRA in West Belfast (via Hamill) and the Italian armed struggle groups of the 1970s; the Red Brigades were particularly fond of claiming law-making power for themselves, and particularly bad at exercising it.

And here, for anyone curious about where I’m coming from, are the references.

Brehm, S. and Brehm, J. (1981), Psychological reactance: A theory of freedom and control. New York: Academic Press.
Cole, D. (2001), “‘An Unqualified Human Good’: E.P. Thompson and the Rule of Law”. Journal of Law and Society 28(2): 177-203.
Della Porta, D. (1995), Social movements, political violence and the state. Cambridge: Cambridge University Press.
Fuller, L. (1964), The morality of law. New Haven: Yale University Press.
Hay, D. (2011; originally published 1975), “Property, authority and the criminal law”. In Hay, D., Linebaugh, P., Rule, J., Thompson, E. and Winslow, C. (eds.), Albion’s Fatal Tree. London: Verso.
Engels, F. (1968; composed 1890), “Letter to Conrad Schmidt”. In Marx, K. and Engels, F., Marx and Engels Correspondence. New York: International Publishers.
Gramsci, A. (1971), Selections from the Prison Notebooks. New York: International Publishers.
Hamill, H. (2002), “Victims of paramilitary punishment attacks in Belfast”. In Hoyle, C. and Young, R. (eds.), New visions of crime victims. Oxford: Hart.
Manconi, L. (1986), “The language of terrorism: a critique of the Red Brigades”. Emergency 4:37 40.
Manconi, L. (1991), ‘The political ideology of the Red Brigades’. In Catanzaro, R. (ed.) (1991), The Red Brigades and left-wing terrorism in Italy. London: Pinter.
Marx, K. (1968; composed 1845), The German Ideology. Moscow: Progress Publishers.
Marx, K. (1977; composed 1859), A Contribution to the Critique of Political Economy. Moscow: Progress Publishers; text.
Monicelli, M. (1978), L’ultrasinistra in Italia 1968–1978. Rome: Laterza.
Moss, D. (1989), The politics of left-wing violence in Italy, 1969–85. London: Macmillan.
Progetto Memoria (1994), La mappa perduta. Milan: Sensibili alle foglie.
Progetto Memoria (1996), Le parole scritte. Milan: Sensibili alle foglie.
Simmonds, N. (2005), “Jurisprudence as a Moral and Historical Inquiry”. Canadian Journal of Law and Jurisprudence 18:249-76.
Simmonds, N. (2007), The law as a moral idea. Oxford: Oxford University Press.
Thompson, E. P. (1975), Whigs and hunters. Harmondsworth: Allen Lane.
Walklate, S. (1998), “Crime and community: fear or trust?”. British Journal of Sociology 49(4):550-569.
Waldron, J. (2008), “The concept and the rule of law”. Georgia Law Review 43(1):1-61.

I made a couple of false starts on this paper, one of which was a critique of Hay; I realised after I’d written a couple of paragraphs that defining the rule of law, examining Gramsci’s concept of hegemony and offering a close reading of “Property, authority and the criminal law” would be altogether too much to ask from my readers. I’ll return to that some time and try to get a paper out of it. The other writers I was hoping to get round to in this paper are Pashukanis and Kamenka & Tay; again, that will have to be another paper. Right now I’ve got to write something intelligent – and not too tendentious – about restorative justice. Oh, and mark 78 essays, or possibly 80…

You know how it is

I want Labour to win this election, but they’re not exactly going all out for my vote at the moment. I learned this morning, courtesy of Obsolete, that Labour stand for sending people to prison for possession of drugs for personal use – at least, they attack the Lib Dems for not supporting this policy. I wouldn’t say it’s having the opposite of the intended effect: never mind a nose peg, you’d have to stuff my nose with garlic, coat my eyes with butter and fill my ears with silver (and the rest) to make me vote Lib Dem. But Labour certainly aren’t calling me home.

This, of course, comes on top of That Mug. Now, being a pedant to my bones – and having worked for a publishing and events company – my immediate reaction to this story was to point out tetchily that it wasn’t a matter of one mug; we were talking about Those Mugs plural, which is to say That Marketing Strategy for Those Pledges plural. But, if anything, this makes matters even worse for Labour: if “why that mug?” was a good question, “why that pledge?” is an even better one. If the Labour Party, going into an election it needs to win, wants to highlight five pledges – five commitments encapsulating what the party will do in government – why on earth should one of them be ‘Controls on immigration’? (Particularly since our membership of the EU makes controlling EU immigration extremely problematic, as everyone involved knows perfectly well.)

Paul Bernal has an excellent list of alternative pledges. Any one of them would be an improvement; in fact, I think Paul’s pledges 1, 2, 3, 6 and 7 would make good replacements for all five of Labour’s. An interesting discussion of the ‘immigration’ pledge itself – and its importance to the voters – has also developed in the comments box. Since I’m one of the main participants, I’ll continue it over here. It began with a comment on the salience – and relative visibility (or at least audibility) – of Eastern European migrants, as distinct from those who have come to Britain from the New Commonwealth. (And with whom UKIP, and others playing the migration card, are of course absolutely fine; the new anti-migration politics is not racist in any way, shape or form. Mostly.) Here’s the comment:

One other point, white migrants from Eastern Europe locally stand out because they are white and quite often not speaking English amongst themselves. We are used to people of non white descent speaking languages other than English to the point where it goes almost unnoticed and unremarked.

In response, I pulled out this quote from the papers in 2010, when Thatcher’s 1979 obiter dicta in Cabinet became available under the 30-year rule.

[In July 1979, the then Prime Minister Margaret Thatcher] said that “with some exceptions there had been no humanitarian case for accepting 1.5 million immigrants from south Asia and elsewhere. It was essential to draw a line somewhere”. [Deputy Prime Minister] Mr Whitelaw entered the debate, suggesting to the prime minister that refugees were a different matter to immigrants in general. He said that according to letters he had received, opinion favoured the accepting of more of the Vietnamese refugees. Lady Thatcher responded that “in her view all those who wrote letters in this sense should be invited to accept one into their homes” … “She thought it quite wrong that immigrants should be given council housing whereas white citizens were not.”

Lady Thatcher asked what the implications of such a move could be given that an exodus of the white population from Rhodesia – now Zimbabwe – was expected once majority rule was established. She made clear, however, that she had “less objection to refugees such as Rhodesians, Poles and Hungarians, since they could more easily be assimilated into British society”.

Emphasis added.

(In passing – “all those who wrote letters in this sense should be invited to accept one into their homes”! Stay classy, Margaret.)

So in 1979 it’s obvious that Asians are harder to assimilate than Poles – they’re not White!
And in 2015 it’s obvious that Poles are harder to assimilate than Asians – they’re not non-White!

My interlocutor replied:

I am not condoning these attitudes, but seeking to understand and explain them. I am afraid the migration is wonderful (stick your fingers in your ears) etc approach will not change hearts and minds, unless those advocating it address the concerns of those not sharing that view.

Perception is reality, even if there is very little evidence to support that perception. And you are not going to change the perception by saying let us have uncontrolled migration.

Which raises the question of how an evidence-free perception can be changed – not with evidence, presumably. I thought about this a bit more and came up with the following, which (as you can see) got too long for a comment box.

Thinking some more about this notion of ‘real concerns’ which underlie expressions of racism, there are two points I’d make. First off, there is a very general tendency to be prejudiced against people who are Not Like Us, particularly if those people are in a minority and visibly (or audibly!) different. Most of us outgrow these feelings, recognise them as unworthy or at worst learn to repress them; more importantly, most of us have life experiences which tell us on a personal level that ‘those people’ are Like Us, that some of ‘them’ are Us. (All the more so in recent decades – my son had more non-White friends at school than I ever did; come to think of it, more than I ever have.) But some people never have those experiences, aren’t very reflective or generous-minded and don’t mix with people who are, and those people will have a genuine, personal, emotional reaction to the arrival of more of ‘those people’. (My grandmother, God rest her, went to her grave convinced that Indian cooking was ‘dirty’. “She probably thinks the brown comes off their fingers,” my mother said.) I don’t know what’s to be done about people like that, except for God’s sake not to encourage them. They do not have very real concerns. Their views are not valid. Yes, there was a time when we all used those words. No, you can’t say those things any more. Good.

Secondly, at the moment I live in an area with very real pressure on services. The local primary school, an Edwardian structure with ‘BOYS’ picked out in stonework over one of the entrances, recently put on a third year-group (i.e. an expansion in capacity of 50%), with extensive new building to accommodate it (they essentially built another school on top of the school); getting a doctor’s appointment has been a pain for a while, but following a recent reorganisation it’s now a pain and a half. What does this tell me? The expansion of the school tells me that pressure on services can be met with an expansion of service provision. The reorganisation of the health centre tells me that if service provision doesn’t expand in response to pressure (perhaps being subjected to a half-arsed reorganisation instead), that’s the problem. What doesn’t occur to me – genuinely doesn’t occur to me, any more than it would occur to me to wear shorts to work – is to blame the people who have moved into the area.

This, clearly, is what’s going on when people voice their very real concerns, so it may be worth establishing why it is that I don’t do it. It may be because I’ve no idea who those incomers are, or even if there is any identifiable group of incomers (people may have stopped moving out; older people may have died and younger people, with families, moved into their old homes; there are a variety of possible scenarios). It may be because I’m a well-meaning Guardian reader, or – relating back to the first point – that I’ve been socialised to beware of prejudice and to try and make sure my beliefs are supported by evidence. But I think the most important factor – my most important value in this respect – is the conviction that you don’t kick down. If someone’s in the same boat as you – or even worse off than you – you may not extend a friendly hand; you may not particularly like them or want them around you. But you don’t blame them for what’s wrong with the world. This seems like basic common sense to me: politically speaking, there are people running things (stop me if I get too technical), and if things are running badly it’s basically going to be their fault, by and large. Down here at ground level – down among the wage slaves and the ‘consumers’ – the way things are is basically not our fault, except in the sense that we’re all perpetuating an unjust system through wage labour and commodity consumption; and in a Marxist perspective even that’s scarcely our fault, morally speaking. If the people in power screw things up, somebody in a position of power needs to put them right. If there’s not enough to go round, you demand more for everyone; if there’s not enough room in the lifeboats, you demand more lifeboats (or equal shares in what lifeboats there are). This, I think, is what was both wrong & deeply right about the Lindsey wildcat strike – the one that had the slogan ‘British jobs for British workers’ hung on it (mostly, it has to be said, by non-participants). To say that British jobs should, in general, be reserved for British workers is to blame the (foreign) workers for the competition they introduce. What the Lindsey strikers actually attacked – correctly – was the bosses’ action in importing an entire workforce, unilaterally removing a source of employment from workers living in Britain (and, incidentally, imposing differential pay rates). Workers are not the problem; deprivation of work is the problem, and it’s not the workers who are doing that. Immigrants are not the problem; service shortages are the problem, and it’s not the immigrants who are creating them.

How to address the concerns of people who want to see controls on immigration (and who, presumably, will be more likely to vote Labour if the party offers them)? Tell them they’ve forgotten something very important: you don’t kick down. (I say ‘forgotten'; they may never have known it in the first place, but it’s kinder not to remind them.) It’s not about well-meaning liberals telling hard-pressed working people that “migration is wonderful” (“Love your neighbour, wherever they’re from” as Ian Dury put it). It’s about who’s causing the problems and who isn’t; where solutions are going to come from and where they aren’t; who they – and all of us – should be angry with, and who we shouldn’t. There’s a lot at stake here: there’s a great deal of latent anger out there (some of it not entirely latent), and if we get the wrong result in May it could easily be channelled in some very unpleasant directions. I know Labour’s leadership are aware of this; I had hoped they would act, and campaign, accordingly.

On inspection, incidentally, Labour’s actual proposals for controlling immigration turn out to be the enforcement of the minimum wage and an unpleasant but largely meaningless clampdown on the ‘benefits tourism’ non-problem. So they actually aren’t kicking down to any great extent. But, by the same token, they’ve left an open goal for any political opponent or hostile interviewer: the pledge says ‘Controls on immigration'; where are they? All in all it’s dreadful stuff. The idea seems to be triangulation, straight out of Bill Clinton’s playbook – pitching a left-wing policy in language that ticks the Daily Mail‘s boxes – and, absent a leader with Bill Clinton’s personal charisma and charm, I don’t believe it can possibly work.

And find out what’s behind it

Cross-posted from ¡Vivan las Caenas!, where a series of retrospective posts is currently under way. This one is essentially ‘my life as a mature student’, and features what I didn’t realise then was the beginning of my interest in the law.

“The best thing for being sad,” replied Merlyn, beginning to puff and blow, “is to learn something. That is the only thing that never fails.”
– T. H. White, The Once and Future King

I was 30. After graduating I’d spent a year on the dole – you could do that back then – before getting a job as a computer programmer. (I’d been a member of the college Micro Society and spent many hours writing Atom BASIC.) Eight years after that, in my third job, I was getting rather bored and very demotivated: work just seemed to be a series of tasks to which I had no commitment, to be judged by standards I barely understood. (“Ennit all?”) I found interest elsewhere, as a member of the Socialist Society and the Socialist Movement, and as a writer for Tribune, New Statesman, Lobster and the SM’s short-lived paper socialist (grandparent of Red Pepper). In the pub one night, after a meeting of the Manchester Socialist Movement group, a guy I knew slightly mentioned that he’d signed up to do a part-time degree. It’s embarrassing to recall how transformative this tiny encounter was for me. It didn’t so much plant a seed as decontaminate the soil – suddenly, absurdly, there was no good reason why I shouldn’t do another degree. Or rather, suddenly there never had been. (So you can change the past!)

But what and how? I wanted to do something that I was passionate about, and that didn’t seem to be English any more. And was it an MA I was looking for? I considered going straight for an MPhil, or a doctorate at a pinch; I got as far as making a shortlist of two alternative thesis topics, one on the experience of UFO encounters and one on computing in business. (At least one dodged bullet there.) On reflection – and after taking advice from my former Director of Studies – I decided that an MA would be more straightforward and less lonely. It took a while to find the right course – it had to be part-time, for one thing – but eventually I embarked on an MA in Politics and Contemporary History at Salford. The course was modular, but in my case covered International Relations (which was awful), Nazi Germany, Resistance in Occupied Europe, Collaboration in Occupied Europe (which was fascinating) and Post-War Italy, with a dissertation on Guy Debord and The Society of the Spectacle. I graduated with a Distinction, and was encouraged by more than one of my tutors (finally!) to think about a doctorate. I made a second and more realistic shortlist of topics: resistance in Vichy France (with a particular focus on groups and individuals which (arguably) played both sides of the street, such as Emmanuel Mounier’s personnalisme movement); or radical movements in 1970s Italy (with a particular focus on those which (arguably) had a Situationist influence, such as Gianfranco Faina’s armed group Azione Rivoluzionaria). My tutors all agreed that, while both these topics were interesting and appropriately specific, one of them was pretty well mined out while the other was still honkingly obscure. So I set out to write a group biography of Azione Rivoluzionaria. Unfortunately they turned out to be just a bit too obscure, so I did this instead. (Looks pretty interesting, eh? Has your library got a copy?)

As for the law, consider a couple of themes I touched on in the previous paragraph: the challenges to political normality represented by the Nazis on one hand and the Situationists on the other. My fascination with the Nazi period (I can’t speak for anyone else’s) stems from the regime’s effort to normalise inherently destructive and corrosive values: to build an enduring system based on aggression, competition and brutality, in all areas of life and at all levels, undermining and corrupting cultural and institutional survivals from the old regime. (In little more than a decade they managed to build alternative forms of politics, an alternative (anti-semitic) form of Christianity and – of course – an alternative criminal justice system. There were cases of blatantly political prosecutions being dismissed by the judge, only for the suspect to be re-arrested as he left the court and taken into ‘protective’ custody by the Gestapo.) By looking at collaborationists, in particular – and respectable Nazi sympathisers such as Douglas Reed and Arnold Wilson – I thought we could think our way inside the genuine appeal of what is to us an obviously vile and unsustainable project. The Third Reich had a life span of less than a generation, so inevitably most Nazi supporters came to the Party as adults: did they all have 180-degree conversions, or were there areas of overlap between the National-Socialist project and other, legitimate political ideologies – and, if so, what could those overlaps tell us? In short, I was very interested in alternative normative systems, and in the idea of treating our own norms as just one set among others. At the other political extreme, the Situationists were a classic example of a radical group whose intellectual ability and self-confidence enabled them to develop and maintain a set of political norms quite distinct from those of the mainstream (to the end of his life Guy Debord was proud of a line of graffiti he’d written as a teenager: NE TRAVAILLEZ JAMAIS). The question here was less of overlap than of availability. May 1968 suggested that, given the swift kick of a general strike, entire towns and cities could jump the normative tracks and exist, at least temporarily, in a universe where spontaneous co-operation was the norm and wage labour was an aberration. I remembered Henri Lefebvre dismissing the Situationists as a band of dreamers: why, they even imagined that there could be a spontaneous general strike, in France, in the 1960s! The question of what makes a good normative system – one, potentially, better than our own – seemed to be a live one.

Those late-70s Italian movements, for their part, had it all: the dawning dreams of a world made new and the queasy horrors of political violence, plus a conflicted relationship with an uncomprehending official Left – which itself embodied an alternative system of values, in more or less compromised form. The law does start to show itself here as a field of contention: I was very struck by the legal amnesty achieved following the Hot Autumn of 1969, such that offences committed during the strike wave ceased to have been crimes. I also remember a debate in the Italian parliament as to precisely what happens when a Molotov cocktail goes off: if the explosion had been classed as a mechanical process rather than a chemical reaction, Molotovs would have been classified as weapons of war and their use would have carried much higher penalties. Politics, as Green Garside never said, is prior to the vagaries of the law – but those are some interesting vagaries.

Although I’d hit a dead end with Faina and Azione Rivoluzionaria, material on the broader topic of the radical movements of the 1970s (and their interaction with the Italian Communist Party) was surprisingly abundant. A couple of years earlier I’d taught myself Italian by brute force (reading a book about the Situationists with a dictionary next to me); I now took my Italian to the next level by much the same method, using Nanni Balestrini’s wonderful novels Gli invisibili and L’editore. (The first page of Gli invisibili took me most of a day: “the… the corridor was, was lined with… with what which whatly did what and made it look like a what?”. The entire book’s written without punctuation, which didn’t make it any easier. But I got there.) I discovered Primo Moroni a matter of months after his death (damn it), and corresponded more or less briefly with Steve Wright, Steve Hellman, Dave Moss, Donatella della Porta, Nanni Balestrini, Olivier Turquet and Gennaro Barbarisi (the writer of an opinion column in a 1976 edition of l’Unità). I carried out research in Colindale (Corriere della Sera on microfilm) and at the University of Reading (l’Unità in hard copy – the only place in the UK which held it) and presented my work in Edinburgh and Milton Keynes; I didn’t get to Italy, though (no budget).

Along the way I also discovered Alfred Schutz, read a lot of Rorty and a fair bit of Dewey, and sketched out a reconciliation of Bhaskar’s critical realism with Schutz’s social phenomenology; as well as blowing Rorty out of the water, this theoretical synthesis was going to give a definitive non-Foucauldian account of the relationship between power and truth. I should probably get back to it some time. Or maybe not. One of my first tutors on the MA had pointed out that I tended to take on too much and range too widely; clearly, I still had that problem. I began to realise how much of a problem it was a few years later, when a friend who was launching a new journal asked me for an 8,000-word paper and I turned in 16,000. (To his great credit, he spotted a way of turning it into two separate papers – and took both. Most editors wouldn’t be anywhere near so accommodating.) It’s a familiar pattern, recurring in a slightly less disabling form. The unique me-ness of me! All right, so I could play with ideas, but I wasn’t going to play with other people; I mean, I couldn’t, really. I’d do it over here, in my own way; it’d be brilliant, but nobody was going to see it till it was finished. I’d be uniquely brilliant! (Ta-da! Sixteen thousand words! How good is that?) Or, if necessary, I’d be uniquely useless; that would work, in its own way. (Eight thousand – eight, not sixteen! How can I be so stupid?)

While all this was going on, I was freelancing as a writer and researcher – I’d left IT for a job editing a computing magazine shortly after starting my MA, and left that job after three years to start work on my doctorate. Lots of writing to a deadline and editing to a word count, lots of instant research, lots of playing with sources and story-building – ask me anything about Wallis Simpson, or Jasper Maskelyne, or Helen Keller… What I didn’t do, while I was a postgraduate, was teach; I did sound out one of my tutors about the possibilities of teaching work, but I rapidly concluded that the day rate for technical journalism was better – I mean, much better. (Plus I could do it without leaving the house, or interacting with anyone except by email.) This was probably a mistake.

Chard Whitlow

Odd how it can work. I’m doing a lot of reading on the topic of the rule of law, considered as not only a liberal but potentially a radical ideal; this is in connection with the paper I outlined here (and mentioned I was stuck on here). So naturally I read Edward Thompson’s afterword to Whigs and Hunters (featuring the famous assertion that the rule of law can be called “an unqualified human good”) and Douglas Hay’s “Property, authority and the criminal law”, the opening chapter of Albion’s Fatal Tree.  Naturally I agreed with the first, finding the second equally challenging and confusing (I’m hoping I can make something productive out of my confusion). A quick Google found me a withering critique of Hay’s essay, John Langbein’s “Albion‘s Fatal Flaws” (you see what he did there); it seemed pretty convincing. I was curious as to how Hay’s thought had developed in the last 40 years – “Property” etc was excerpted from his doctoral dissertation, for which alone much respect is due – and got hold of the 2011 Verso reissue. Hay’s contribution to the 2011 Introduction led me to Peter Linebaugh’s superb response to Langbein, which left his critique in tatters (albeit on the basis of a fairly generous reading of Hay; Linebaugh’s Hay seemed more persuasive and more coherent than the original had done). Hay also cited work by Peter King, John Beattie and Alan Hyde, all of which I duly tracked down.

In the Introduction and elsewhere, Hay engaged more extensively with some critics than others; Hyde in particular he dismissed rather breezily (“Hyde (in the face of daily evidence from his own government, as well as our historical sources) seemed to think legitimation appeals made by elites were figments of our imagination.”). Being a cross-grained sort, I was intrigued by this and tracked the paper down. Hyde’s paper – “The concept of legitimation in the sociology of law” – is a critique of the Weberian concept of legitimation, arguing that it’s not necessary to explain either law-compliant behaviour or law-making, and hence that explanations of these phenomena which rely on it should be re-examined. Whether Hay was working in a Weberian framework is a moot point; I’m inclined to infer from the references to ideology and ruling-class hegemony – and from Linebaugh’s characterisation of his and Hay’s shared project as “(Marxist) social history” – that his background assumptions were Marxist and specifically Gramscian. However, this may make little difference; Hyde doesn’t mention Gramsci, but he does suggest that the Marxist framework of material base and ideological superstructure is vulnerable to very similar criticisms. Which is to say, both answer variants of the same question – “why do people do things to which they’re not motivated by habit, goal-seeking self-interest or prudence?” – and, Hyde suggests, this may not be a question worth asking. To find law-compliant behaviour solely (and hence incontrovertibly) motivated by a belief in legitimacy, one would need to pass a new (and recognisably novel) law, with a direct effect on individual behaviour, but with no benefit in compliance, no social pressure for conformity and no sanction for non-compliance; it’s difficult to imagine what this might be, let alone to speculate on whether everyone (or anyone) would comply. Identifying behaviour solely motivated by investment in ruling-class ideology is even harder: laws can change overnight, but – outside the world of Nineteen Eighty-Four – ideologies generally change slowly, making it very difficult to disentangle the effects of habit and prudential conformity from those of the ideology itself.

I don’t go all the way with Hyde; I don’t think anyone with an interest in protest and political disorder can afford to discard the concept of legitimacy. David Friedrichs’ 1986 response to Hyde is a useful corrective, arguing that we can distinguish constructively between the belief in substantive legitimacy and its withdrawal (“they have no right to rule us”), the belief in procedural legitimacy and its withdrawal (“they had no right to pass that law/detain those people/kill that man”) and the fact of popular legitimacy and its loss (“they don’t speak for us”). Tracing interactions between the three is left as an exercise for the reader. But legitimacy in this sense is an attribute of subjects’ relationship with any particular regime or class, rather than a social fact in itself; if anything it’s a kind of meta-textual attribute of ideological beliefs, its absence serving as a signal that a certain ideology no longer holds sway or should hold sway. And, to the extent that we are materialists, we can’t really argue that ideological change and stability are autonomous phenomena operating on their own ideological plane, let alone that they’re produced through changes to the material basis of society carried out to perpetuate a given ideology. To say that a particular regime is legitimate – or that a particular class is hegemonic – is a sociological statement of fact. But hegemony and legitimacy are attributes of a state of affairs with material bases. To speak of a regime actively preserving its legitimacy, or even a class actively maintaining its hegemony, may be to put the superstructural cart before the material horse.

Hay put forward the case that “the criminal law, more than any other social institution, made it possible to govern eighteenth-century England without a police force and without a large army”. On inspection the word ‘govern’ is equivocal: granted all that AFT tells us about disputes over property rights and use rights, we are not talking about the governance of a rebellious people, the continual repression of myriad local revolts. The question Hay is answering is not how revolt was repressed, but why it didn’t occur: why people very largely obeyed the law, continued to believe in the law and continued to believe their government to be legitimate. And here, I think, a purely ideological answer, based on the introjection of ruling-class norms (including the norms of law and justice), cannot be satisfactory.

This materialist argument finds support from a surprising source – and one which itself draws support from a surprising quarter. Hyde:

Unlike the labor law of earlier eras, contemporary labor law is rarely the weapon of choice of a strong employer class against a weak worker class. Rather, labor legislation in contemporary capitalism is almost always a concession made to troublesome or insurgent workers’ movements. For example, following the wave of wildcat strikes in Western Europe between 1968 and 1971, every affected country made fundamental revisions in its system of labor law, all involving concessions to organized unions in an attempt to solidify the unions’ organizational positions in the plant, on work councils, on corporate boards, etc. In many cases the concessions merely adopted as public policy what had been true defacto. The precise content of the concession varied from country to country depending on union political demands, but the variation seems almost irrelevant next to the fact that there were such concessions to the unions.

If this explanation is correct, it is possible to conclude that labor law has enormous symbolic importance, that workers can achieve changes in labor law, but that employers and governments retain considerable choice over the range of possible concessions. What the above story does not permit one to conclude is that this post-1968 legislation had any particular effect on working people, and in particular did or did not “legitimate” the system for them or render disobedience or revolt more or less likely.

The argument here is that the state of labour law at any one time reflects the balance of power between the bosses and the workers (and their representatives). More generally, law is an outcome of class struggle, or the absence of class struggle; it conditions the way class conflict plays out, but it is also conditioned by it – and cannot itself repress it.

I found this argument particularly congenial because of something I was writing a few years ago, before I ever considered the law as a field of study. Take it away, Edwards (2009, p11, references omitted):

From 1969 onwards the increasing political salience of the new movements prompted a resurgence in activity by the unions. Wage levels across Italian industry were set through three-year contracts between unions and employers’ organisations, which were due for renewal in 1969. CGIL organisers worked to integrate the more innovative forms of industrial action into contractual campaigns. As Franco Berardi of Potere Operaio recalled, ‘again and again, autonomous organisations organised strikes in a single section of a factory, after which the union came in, asked all the workers what their demand was, and used it to regain control of a struggle which had completely got out of their hands’.

The contracts signed in December 1969 were highly favourable. Wage rises outstripped inflation; working hours were to be reduced in stages, with a 40-hour week promised within three years; parity between clerical and manual workers, a central workerist demand, was conceded in principle. December 1969 also saw the passage of the Statuto dei Lavoratori (‘Workers’ Statute’). This became law the following May, together with a general amnesty for those who had been charged with offences relating to industrial action: disorderly and violent acts committed by factory activists ceased to have been criminal offences. Feeling that the government and the employers had been forced to back down, some groups began campaigning on new or modified demands: abolition of piecework, mass regrading, an immediate 40-hour week. However, many workers saw the contracts as a result with which they could be content. This view was encouraged by the unions, whose own position within the workplace had been greatly enhanced; for instance, the Statute entitled them to hold meetings in work time.

I make it four parties rather than two – the unions, movements like Potere Operaio, the workers whose support was contested and the bosses – but it turns out that I was telling a similar story at this early point in my book. Although I was writing a work of political sociology set among the Italian social movements of the 1970s, I’d already recognised the law as a significant terrain of struggle, where norms and meanings could be made and unmade – note those fascinated italics (“ceased to have been criminal offences”). Law as “an arena for class struggle, within which alternative notions of law were fought out”, to quote Thompson again (this time from his anti-Althusserian polemic The Poverty of Theory); but notions worth fighting out, in the form of law.

Nice to realise I’ve been on the right lines (or at least the same lines!) all along. We shall not cease from exploring, eh? And this time last year I was fifty-three.

The gate to the law (part 1)

So why all the legal stuff? I seem to be posting little else these days; I’ve even started a separate blog, devoted to one specific corner of legal theory. Am I a lawyer? (No, I’m a lecturer in criminology.) Have I got a legal background? (No.) Is it connected with my work? (Well… no, not really. Not just yet.)

So what is the fascination of this (very specialised) field of study? And what has it got to do with my actual academic career – particularly bearing in mind that I began this career fairly late on (it’s my third, roughly speaking), and it took me several years of hard work to get across the starting line? It’s taken me long enough to get to here, in other words, so why am I digging over there?

I’ve been wondering about this, and here’s what I’ve come up with. Here’s the first instalment, at least; the rest will appear on another blog.

BROD: Then there’s no hope?
KAFKA: Plenty of hope, endless amounts of hope! But not for us.

It begins, as far as I can make out, with damnation. Continue reading

A Doctor writes

I’ve tagged this post ‘flummery’, which I think was the category I chose for chatty and personal posts of no enduring value. As well as ‘flummery’ I find I’ve got categories for ‘drollery’, ‘foolishness’, ‘idiocy’ and ‘tosh’, not to mention ‘saying the thing that is not'; I must have had distinct purposes for each of those, although I’m not sure now what they are.

It’s a while since I last posted here; there ought to be a third ‘Dangerous decisions’ post, for one thing. Over the last month I’ve been working on a long and autobiographical post, which I began in an attempt to answer the question “why all this legal stuff?”. It’s got so long (and so autobiographical) that I’m now planning on breaking it up into sections and publishing it on another blog.

Also, I’ve recently been reminded that I’ve written a book – or, more to the point (and rather to my surprise, if I’m honest) that it’s still selling. For new readers, my book (publisher’s page) is an academic hardback on the radical social movements of late-1970s Italy and their relationship with the Italian Communist Party; I called it ‘More work! Less pay!’ and chose a rather dramatic cover image, which you can see to the right of this post. Shall we hear a bit more about the book before we go on? I think we shall.

In the mid-1970s, a wave of contentious radicalism swept through Italy. Groups and movements such as ‘Proletarian Youth’, ‘Metropolitan Indians’ and ‘the area of Autonomy’ practised new forms of activism, confrontational and often violent. Creative and brutal, intransigent and playful, the movements flourished briefly before being suppressed through heavy policing and political exclusion.

‘More work! Less pay!’ is the first full-length study in English of these movements. Building on Sidney Tarrow’s ‘cycle of contention’ model and drawing on a range of Italian materials, it tells the story of a unique and fascinating group of political movements, and of their disastrous engagement with the mainstream Left. As well as shedding light on a neglected period of twentieth century history, this book offers lessons for understanding today’s contentious movements (‘No Global’, ‘Black Bloc’) and today’s ‘armed struggle’ groups.

I’m afraid that both the cover image and, more importantly, the title were ill-chosen – partly because you basically have to read the entire book to discover what they refer to, but mainly because the phrase “more work, less pay” is, frankly, a bit of a downer. I don’t believe in magic, but I do think that words are powerful: if you were choosing between my book and one called Chimes of freedom or A brighter tomorrow or ‘Rich, lads, we’re rich!’, I think the negative connotations of my title could easily nudge it down the list. And when you’re dealing with academic hardback prices, it’s not going to be on thousands of lists to start with. (An academic paperback might be – but that would mean selling out the hardback print run.)

Still, when it came out it did sell quite a few copies – albeit not enough to sell out the print run – and apparently the publisher is still getting orders coming in. Good! (And if your nearest academic library doesn’t have a copy, why not?) Interestingly enough, several of the sales were ebooks, going for a bit less than the hardback; these (as far as I can tell) are library ebooks, made available through the Manchester Scholarship Online service. I’m in two minds about this; it means more eyes on my work, which is good, but it doesn’t bring the paperback edition any closer.

In other news, I’m horribly stuck. (In terms of writing, that is – real life is trundling along.) I’ve got no teaching this week – and I’m on a part-time contract anyway – so I resolved at the start of the week to clear some admin, get some student support in place, check the rest of the term’s teaching, answer emails as they come in obviously… and then devote myself to writing. Proper writing, that is – as distinct from ‘student support’ and ‘answering emails’, which between them involved writing about three and a half thousand words. Writing, hurrah!

Or maybe not. I’m partway through a paper (with a deadline) which is on a topic that passionately interests me, and I can’t think where the argument’s supposed to go; I go blank when I look at it. It’s a real block; I’ve always had difficulty motivating myself to write when deadlines were a long way away, but this is worse. I think part of the trouble is just that it is a topic that passionately interests me – all through the years I worked in IT, I did the autodidact thing: I would seize on scraps of time (evenings, lunch-hours, the bus to and from work) to read, and write, about the stuff that interested me in the way that work didn’t. And here I am, writing about precisely what interests me, in work time – well, I did some of that too, but here I am doing it for work. It seems to set the bar much higher – if I fail at this, where do I go?

Academia seems to be a weirdly scary place, albeit that it’s indoor work with no heavy lifting and no micro-management. (I remember the reaction of a colleague when the department we were in piloted timesheets for lecturers. Fresh out of IT, I just thought “yes, that’s a timesheet”; I was on the point of explaining how five minutes was roughly 0.01 of a standard day, so if you thought of it in terms of multiples of five minutes… Then I saw the expression on my colleague’s face: it combined affronted horror with an element of genuine bafflement. The pilot wasn’t a success.) There’s not much danger that your boss will tell you to get something done yesterday, but you will be strongly encouraged to seek out opportunities to shine – and, when it comes to it, you may just sputter out. (All very gouvernementale.) The nightmare scenario isn’t that your boss sets you an impossible task, in other words – it’s that you do. The glory’s all yours, if it’s recognised; so is the ignominy.

Oh well, back to the old drawing board. Wish me whatever it is that enables a climber to avoid looking down. Luck, possibly.

Dangerous decisions? (2)

The second decision I wanted to talk about was the Divisional Court ruling in the case of Unison (No.2), R (on the application of) v The Lord Chancellor. Unison had challenged the imposition of fees on would-be employment tribunal claimants, claiming that this denied any effective access to justice to many – or most – potential claimants, while also discriminating indirectly against some (poorer) groups. (More detail and discussion from Lauren Godfrey.)

The case report in Unison (No.2), as it will probably be abbreviated (or R v The Lord Chancellor, as I like to think of it), is distinguished by a weakness, an equivocation and a monstrosity. The weakness, on the claimant’s side, is probably sufficient to explain the negative finding, but it needs to be sharply distinguished from – and set in the context of – equivocal and monstrous arguments advanced by the defence. Once that’s done it’s clear that this is, still, a case which cries out for justice, even if the particular form it’s taken may doom it to a judicial dead end.

So far, so gnomic; let’s crack on. Unison’s case was, not that the imposition of ET fees would tend to put ET claims out of the reach of claimants, but that it actually had done so. Sadly, this claim was undermined by a key weakness in the union’s argument. An earlier application, based on the anticipated impact of the fees before they were introduced, was rejected on the grounds that the union had (of necessity) relied on hypothetical examples. This application relied instead on statistical data, which the Divisional Court (Lord Justice Elias and Mr Justice Foskett) found highly persuasive:

  1. There is no doubt that the reduction in the number of cases brought is striking. The Tribunals Statistics Quarterly for October to December 2013, published on 13 March 2014 show that, comparing the period October-December 2012 with the period same period in 2013 (the Fees Order having come into force on 29 July 2013), 79% fewer claims were accepted by the ET . For equal pay claims, the figure was 83% and for sex discrimination it was 77%.
  2. The Quarterly for January to March 2014, published on 12 June 2014, confirm the continuing dramatic effect of the Fees Order and suggest that the earlier statistics were not aberrant. Between January and March 2013, 57,737 claims were brought in the ET. However, for the same period in 2014, just 10,967 claims were brought. That is a drop of 46,660 claims or 81%. There is other evidence to similar effect.

The interpretation of these figures presents two issues, one of which the court (perhaps surprisingly) conceded: the reference to the continuing dramatic effect of the Fees Order takes it as given that the huge drop in cases was in fact caused – in some way and to some extent – by the introduction of fees. The second issue is more problematic: what is the nature of that causal relationship? The claimant’s case – denial of effective access to justice – requires that the fees regime made a tribunal application so expensive as to be effectively impossible. But this is fearsomely hard to prove in any individual case. If you think about it, affordability is an inherently elastic metric. Every time a fashion-conscious youth tribe makes the news – from the Teds to the New Romantics and beyond – there are stories of young men with menial jobs wearing ridiculously expensive suits, which they’ve bought by saving literally every penny they earn. On the same basis, anyone who earns enough to run a car could ‘afford’ a Rolex, just so long as they didn’t mind walking everywhere for a year.

The point here is that the vagueness built into the concept of ‘affordability’ makes it hard to prove that – in any given case where person A declines to spend money on purchaseable good G – the reason was that the potential purchaser could not afford the asking price. But, if something’s hard to prove in a single case, it’s just as hard to prove in several thousand cases. And if something’s not proved it can’t be assumed, or not without very good evidence in its favour – irrespective of whether we’re talking about one person or many. The fact that there are not one but 46,660 people who may have found ET fees unaffordable doesn’t, logically, make the case for unaffordability in any individual case any stronger – on the contrary, the case for applying the ‘unaffordability’ argument to many people depends on first proving it in at least one case, showing that at least one person has been deterred. That certainly looks like what has happened; discussing the alternative factors proposed by the Lord Chancellor, the case report notes that “[these factors] do not begin to explain the whole of this very dramatic change”. But a legal finding that it has happened would require much stronger evidence:

  1. … I suspect that there may well be cases where genuinely pressing claims on a worker’s income will leave too little available to fund litigation. But the difficulty with the way the argument has been advanced is that the court has no evidence at all that any individual has even asserted that he or she has been unable to bring a claim because of cost.The figures demonstrate incontrovertibly that the fees have had a marked effect on the willingness of workers to bring a claim but they do not prove that any of them are unable, as opposed to unwilling, to do so.

Note the last phrase – I’ll be returning to it. The implication of this paragraph is that only an approach based on actual cases would meet the appropriate evidential standard, although, as Lauren says, this would have its own pitfalls: “[f]aced with individual cases, the Lord Chancellor would no doubt argue they are atypical.”

As for the equivocation mentioned above, this relates to the second charge, of discrimination. Unlike the charge of outright denial of effective access to justice, the charge of indirect discrimination is open to the use of aggregate figures: if an identifiable group verifiably comes off worse, there’s a case to answer, even if no individual is complaining. In this case, as long as there is an identifiable group of potential claimants who have been differentially discouraged by the fees regime – and hence, ultimately, disadvantaged relative to the majority who were not discouraged in the same way – it does not need to be shown that any individual claimant has been compelled outright to abandon a claim. What does need to be shown, however, is that the discriminatory effect was caused in pursuit of a broader social goal which is not meritorious enough to justify it, either because the goal is wanting or because the discriminatory cost is disproportionate. The Lord Chancellor’s representative met this challenge with an argument which seems to have satisfied the two judges hearing the case, but… well, see what you think.

  1. The evidence shows that in setting up the fee scheme the government were seeking to achieve three specific and quite distinct objectives: the first was to transfer a proportion (one-third) of the annual cost of running ETs and the EAT to those users who benefit from it and can afford it; second, to make Tribunals more efficient and effective not least by removing unmeritorious claims; and third, to encourage alternative methods of employment dispute resolution so that litigation is not the first resort. This last objective goes hand in hand with the government’s promotion of ACAS conciliation which became mandatory for all ET claimants from 6 May 2014. The government considers that it should encourage quicker, cheaper and less emotionally damaging alternatives to the judicial process.

As with the previous quote, the last sentence is an interesting one – keep it in mind. For present purposes, the point is that the imposition of fees has been justified in three “quite distinct” ways. That there are multiple objectives is key to the government’s case here: one of the stated objectives, and perhaps the most obvious – saving money – is not regarded as sufficiently valuable to justify discrimination, for obvious reasons (denying healthcare to non-Whites or education to girls would save loads of money, after all). (In the interests of completeness I should note that the case report also argues that “requiring a contribution towards the cost of running the Tribunal Service” is not equivalent to “costs saving”, but the reasoning at this point is obscure.)

That leaves the two objectives of promoting efficiency (at least in part by “removing unmeritorious claims”) and of encouraging early recourse to conciliation and mediation. Lauren is unimpressed:

it must be doubted that there is a meaningful distinction between fees on the one hand – which reduce cost to both government, in running the Employment Tribunal system, and employers in defending claims – and the requirement on claimants to enter early conciliation on the other, as both requirements unquestionably serve the same identical dual aims. Further, and with due respect to the Court, they are requirements whose aims are grounded in cost alone.

I think this misses something. It’s certainly true that an ET system which charges a fee for each case and an ET system which processes fewer cases will both be cheaper to run, relative to the status quo ante, but I don’t think this is the main point here. The argument is that the fees will change some groups of clients’ behaviour: those claimants with conciliable claims will be encouraged to have them conciliated, while those with unmeritorious claims will be deterred from proceeding and will sling their hook.

I am surprised that the Divisional Court let this argument get past. The case report limits itself to a few comments on whether claimants who have weak claims or ought to be in mediation might in fact be encouraged to do the right thing by the imposition of fees. But the fee regime is, of its nature, imposed on claimants in general. The argument thus rests on an equivocation. The figure of the tribunal claimant, the person against whom these measures are directed, drifts in and out of focus as we read: he’s a trouble-maker and a chancer, who knows that he hasn’t really got a hope but plans to clog up the courts with his spurious claim anyway; she’s an unfortunate victim of workplace misunderstandings, who would rather not get the law involved but thinks she’s got no other option. Perhaps we could justify treating all claimants as no-hope chancers, on the basis that the good claims would stay in the system; perhaps we could justify treating all claimants as mediation clients gone astray, on the grounds that unmediable claims would find their way back to court. We certainly can’t justify treating all claimants as both these things – and, even assuming that both these groups exist in significant numbers, it’s hard to imagine any possible package of incentives which would address these two groups and nobody else.

In fact these aren’t two distinct objectives but one objective with two benefits. Given the lack of any possible mechanism to single out weak or inappropriate claims, and the lack of any evidence as to the prevalence of such claims in the system before the introduction of fees, the Lord Chancellor’s aim must have been – at best – to reduce the number of weak and inappropriate claims by means of an overall reduction in claims. The objective, then, is to divert people out of the system; the benefits are that these two groups, to the extent that they exist, will be dealt with more appropriately. The cost, meanwhile, is that a completely unknown proportion of the potential claimants who would otherwise have made claims – a proportion which may be anything up to 100% – will have had claims which would have been worth testing in court, and which will now go unvindicated. Not only is this an unknown proportion; it’s a proportion which there is, now, no way of knowing. The Lord Chancellor has in effect justified the introduction of fees on the grounds that it would reduce the use of the system – as indeed it has done.

Which brings me to the monstrosity. The context is the earlier argument about effectiveness; Ms Chan is representing the Lord Chancellor.

  1. Ms Chan’s basic submission, however, is that whatever the statistics say they cannot of themselves demonstrate that the principle of effectiveness has been infringed. It is not legitimate to infer that some litigants cannot pay from the fact that a significant number do not pay. Ms Chan accepts that the imposition of a fee will necessarily deter some litigants from taking their cases but contends that there are likely to be a variety of reasons for this. Some workers who in the past may have pursued a weak case, if only in the hope of securing a small settlement in their favour, will now be reluctant to do so because of the risk of having to pay fees if the case goes to the tribunal. Others will quite properly choose to spend their limited resources in other ways rather than gamble on litigation.

Savour that. Your elected government, ladies and gentlemen, doesn’t want you to gamble on litigation. It’s up to you how you choose to spend your limited resources, and if you don’t choose to spend them on vindicating your legal rights, that’s perfectly fine: the choice is yours. It’s your choice, except in the sense that it didn’t exist a couple of years ago: the decision whether or not to spend your money on employment tribunal fees has been created by this government, with the explicit intention of encouraging claimants to decide not to. Nothing says more about this Lord Chancellor’s contempt for the legal system than that pious invocation of ordinary people frugally husbanding their resources and choosing not to gamble on litigation. Legal rights? Never mind, your employer will respect them, probably. Best not worry about it.

Perhaps it was simply ultra this particular court’s vires – perhaps it’s more a matter for judicial review – but the real question at issue is stated in that quoted paragraph. By introducing a fee where none existed before, the government has restructured the terms on which people decide whether or not to go to a tribunal, with the express intention of discouraging them from doing so. In effect, the difficult, stressful and long-drawn-out process of going to an employment tribunal has been turned into a difficult, stressful and long-drawn-out process with a high up-front cost – a cost which in many cases will wipe out any monetary award which might eventually be made. This change has been made without any evidence that it would have a differential effect on cases which should not be going to court, or even that large numbers of such cases existed. Rather, it has been made in the knowledge that it would lead to a general reduction in the number of people asserting their rights under employment law, and (we can only assume) with that intention.

This is monstrous, and it should not be allowed to stand. I’m not sure that the Unison case is the vehicle by which it will be successfully challenged, but we can hope. Leave has been given to appeal.

Dangerous decisions? (1)

On the face of it, the Supreme Court judgment in Moohan and the Divisional Court decision in the case of Unison (No.2), R (on the application of) v The Lord Chancellor don’t have a lot in common, other than both being delivered in the last couple of days. In one case, a prisoner challenged the legality of the Scottish Independence Referendum (Franchise) Act 2013, on the grounds that its exclusion of prisoners from voting in the referendum was counter both to Article 3 of Protocol 1 of the European Convention on Human Rights and to the (putative) common law right to vote. In the other, the union Unison challenged the imposition of fees on would-be employment tribunal claimants, claiming that this denied any effective access to justice to many – or most – potential claimants, while also discriminating indirectly against some (poorer) groups. In both cases the decision went against the claimant.

I think they do have something in common, both in the way they were decided and in the reasons why they were brought. In this and the next couple of posts I’ll be explaining why I think both of these were bad – and dangerous – decisions. (Background and discussion: Mark Elliott on Moohan; Lauren Godfrey on Unison (No.2), R (on the application of) v The Lord Chancellor.)

Moohan first. The Supreme Court was divided in Moohan, but the majority drew a fairly straightforward distinction between the Scottish referendum and the ECHR’s

free elections [to be held] at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature

and thereby carried out one of the least lovable but, arguably, most important functions of the courts: telling claimants that, however good their case might seem, they can’t win it that way. (Lords Kerr and Wilson argued that the referendum was, potentially, the first stage in the formation of a new legislature and hence did in fact engage the people’s right to free expression in the choice of legislature. This seems like a stretch.)

Anyway, so far so uncontroversial – a disappointing outcome for believers in prisoners’ votes, but a reasonable one. The problems start, for me, with the subsidiary ‘common law’ argument. I’ll quote from the case report. Have patience; I’ve cut the quotes down as far as possible, but no further.

Lord Hodge:

I do not think that the common law has been developed so as to recognise a right of universal and equal suffrage from which any derogation must be provided for by law and must be proportionate. … for centuries the right to vote has been derived from statute. The UK Parliament through its legislation has controlled and controls the modalities of the expression of democracy. It is not appropriate for the courts to develop the common law in order to supplement or override the statutory rules which determine our democratic franchise. … [A] common law right of universal and equal suffrage … would contradict sections 2(1)(b) and 3(1) of the 1983 [Representation of the People] Act. … the appellants’ proposition has to be tested against the provisions of the 1983 Act. So tested, I am satisfied that there is no common law right of universal and equal suffrage

While the common law cannot extend the franchise beyond that provided by parliamentary legislation, I do not exclude the possibility that in the very unlikely event that a parliamentary majority abusively sought to entrench its power by a curtailment of the franchise or similar device, the common law, informed by principles of democracy and the rule of law and international norms, would be able to declare such legislation unlawful. The existence and extent of such a power is a matter of debate … But such a circumstance is very far removed from the present case, and there is no need to express any view on that question.

Lady Hale:

It would be wonderful if the common law had recognised a right of universal suffrage. But, as Lord Hodge has pointed out, it has never done so. The borough franchise depended upon royal charter. The “40 shilling freehold” county franchise appears to have been the creation of Parliament. Every subsequent expansion of the franchise, from the great Reform Act of 1832 onwards, has been the creation of Parliament. It makes no more sense to say that sentenced prisoners have a common law right to vote than it makes to say that women have a common law right to vote, which is clearly absurd.

Lord Kerr (who dissented from the majority decision):

The common law can certainly evolve alongside statutory developments without necessarily being entirely eclipsed by the latter. And democracy is a concept which the common law has sought to protect by the incremental development of a system of safeguarding fundamental rights. … It is therefore at least arguable that exclusion of all prisoners from the right to vote is incompatible with the common law. … I acknowledge, however, the force of the point made by Lord Hodge that, insofar as a claim to a common law right to vote conflicted with sections 2(1)(b) and 3(1) of the Representation of the People Act 1983, it could not succeed.

Lord Hodge’s argument is, surprisingly, both crude and incoherent. Crudity in legal argument isn’t necessarily a bad thing – sometimes “you can’t do that” is all there is to say – but incoherence is more of a concern. The question at issue is whether a common law right can take precedence over a specific statutory provision. Hodge’s reply is that this can’t happen, because if it did the result would be… to give a common law right precedence over statute: “the appellants’ proposition has to be tested against the provisions of the 1983 Act”; “a common law right of universal and equal suffrage … would contradict sections 2(1)(b) and 3(1) of the 1983 Act”. You can’t do that, in other words, because that is a thing that you can’t do.

It’s a circular argument – and a tight circle at that – but that’s not to say that it’s invalid. The argument gets more difficult – and, I would say, incoherent – when Hodge argues that, while the common law cannot extend the franchise, it could if necessary prevent its curtailment. But if, for example, a Disenfranchisement (Females) Act had been passed into law (and it wouldn’t have much effect until it had), then to “declare such legislation unlawful” would be precisely to “extend the franchise beyond that provided by parliamentary legislation”: parliamentary legislation would have provided that women should not vote. Hodge could argue that the ‘curtailment’ argument referred specifically to drastic measures in resistance of a parliamentary coup, and make the distinction with the prisoners’ votes issue that way: nobody would argue that the clauses in the 1983 Act debarring prisoners from voting represent “a parliamentary majority abusively [seeking] to entrench its power by a curtailment of the franchise”. But then the question is back with Hodge: why should “the common law, informed by principles of democracy and the rule of law and international norms” not have a voice when less extreme encroachments on democracy are at issue? Hodge’s argument seems to be that the common law should be like King Arthur and lie sleeping until England’s hour of need; I don’t see how he justifies this assumption.

Lady Hale’s argument is more coherent, but coherence is bought at rather a high price. She argues that voting rights are, have always been and will always remain a creature of statute; this has the slightly alarming implication that (contra Hodge) there would in fact be no common law case against the Disenfranchisement (Females) Act. Faced with a conclusion like this, it’s worth asking where the argument went astray. It’s certainly true that there was no common law right of universal suffrage until universal suffrage had been established by statute; however, I don’t think this entitles us to conclude that there is now no such right. The assumption in Hale’s argument seems to be that the common law is some sort of pre-statutory substrate dating back to King John, by now very largely paved over by successive efforts to legislate and codify. Hodge’s argument suggests a very different way of thinking about the common law: as a body of shared and more or less clearly articulated assumptions; a framework in which to think about, and debate the limits of, socially-responsible law-making and interpretation of laws. As far as universal suffrage is concerned, in any case, the line between the arbitrary inventions of statutory enactment and the realignment of legislation with common law principle cannot be drawn as clearly as Hale would like. If 1832 and 1867 redefined the franchise, it could be argued that the franchise extensions of 1928 and 1969 represented reactive vindications of the principle of universal suffrage, in the light of changing understandings of the meaning of ‘universal’. Lady Hale’s argument suggests that there is no particular reason why the franchise was extended to all 18-year-olds in 1969, and not to (for example) only those 18-year-olds whose parents had at least one higher degree, or all 18-year-olds plus 17-year-olds whose surname began with a P. Common law principles articulating themselves through statutory enactment? Perhaps that would be a mystification, but Hodge’s model of “common law, informed by principles of democracy and the rule of law and international norms” seems relevant here. Certainly it would seem to fit the bill better than a kind of sawn-off positivism, which declares that all there is to say about (electoral) law is that it is what the executive happens to have declared to be law.

Lord Kerr’s argument, lastly, is more subtle than Lord Hodge’s but even less coherent. He acknowledges that the common law has developed pari passu with statute, and that it may represent a resource of principles by which to judge, and potentially disqualify, statute-made law. He even floats the possibility that the common law might judge the exclusion of prisoners from voting and find it wanting. His argument comes back to earth with a bump, however, with a qualified acknowledgment of Hodge’s argument, that a common law principle cannot overrule a statutory provision. And, of course, if that’s the case there’s no argument to be had here. (Except that Hodge himself acknowledged that it’s not invariably or necessarily the case…)

We’re used to legislation being ‘read down’ to comply with the European Convention on Human Rights; the provisions of the ECHR are treated, if not as a hard limit, certainly as a hard reference-point, any conflict with which needs to be managed down and (as a last resort) flagged up. What this means is that there is a stock of individual rights which (it is generally acknowledged) government action and statutory law-making are expected to respect, however imperfectly these rights may be vindicated in practice. This isn’t the only way to vindicate citizens’ rights against the law and government, and may not be the best; it involves a reliance on (on one hand) the text of the Convention and (on the other) the specialised jurisprudence of its professional interpreters, with the alternate risks of treating the text as holy writ and reading contemporary assumptions (not to mention contemporary debates and contemporary jargon) into it. Personally, I have a temperamental sympathy with the idea of deriving such rights and safeguards from common law; it chimes with my Fullerian views on the law as an inherently moral project. But Moohan, and these rather scrappy comments from three Lords of Appeal in Ordinary, suggest that this may be a utopian prospect.

The Court paid little attention to the current government’s entrenched opposition to giving prisoners the vote, and rightly so. The roadblock in the way of asserting common law rights is not political but statutory, even constitutional: the idea of statute law as bedrock runs through all three comments, and its effects are, if possible, even more conservative than outright deference to the executive would have been. The trouble is, common law rights would mean nothing unless they could be asserted against statute. Lord Hodge, to his credit, recognises that there may be situations in which common law rights must be asserted against constitutionally legal decisions, but he defers any such activist role for common law lawyers to a distant and catastrophic future – just as Lady Hale relocates the common law to a distant and almost pre-legal past. From this decision there seems little hope of the common law playing any sort of safeguarding role in the present tense, as ECHR jurisprudence currently does. Good job there’s no realistic prospect of Britain repudiating the ECHR, eh readers?

Update 21st December

One enterprising visitor yesterday found their way to a previous post on this topic (which I’d completely forgotten), The barren weeks. In that post, written in 2011, I quoted Lord Wilberforce’s dictum from 1982 – “under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication” and described this as a statement of ‘the common law position’. What I didn’t do in that post was to acknowledge that the vote was one of those rights which had been ‘expressly’ taken away: prisoners’ voting rights in England and Wales – always circumscribed – were removed in the Representation of the People Act 1969, and this ban was restated in the 1983 Act.

In the 2011 post I denounced the voting ban as running flatly counter to the position expressed by Wilberforce. This was hasty; a more attentive reading shows that Wilberforce’s statement is entirely compatible with prisoners being statutorily deprived of the vote – or any other identifiable right, for that matter. In fact, the apparent contradiction between Wilberforce’s statement and the relevant legislation demonstrates how accommodating the common law can be, and will tend to be. I asked yesterday whether common law could take the activist role envisaged by Lord Hodge in relatively normal conditions. Perhaps it’s also worth asking whether even a catastrophic governmental assault on the rule of law would rouse the common law from its complaisance – and whether we would recognise such an assault in time.

WIP 3: (Should we) counter radicalisation?

Lastly, here’s the abstract of a paper which has been published in the Routledge collection Counter-Radicalisation: Critical Perspectives (Heath-Kelly, Jarvis and Baker-Beall (eds)):

How (not) to create ex-terrorists: Prevent as ideological warfare

Phil Edwards

When the ‘Prevent’ programme was developed in 2003, and announced publicly three years later, it proffered the policy aim of ‘preventing terrorism by tackling the radicalisation of individuals’. Prevent has now become a permanent fixture on the counter terrorist scene, rearticulated across the manifestations of the CONTEST strategy. However this apparent continuity in policy and implementation may not only produce the impression of a single continuing Prevent project, but—more importantly—lead the integrity of the project to be read back into its conceptual basis. Key questions risk going unasked: whether there is a distinct experience of ‘radicalisation’; if so, how strong an association there is between radicalisation and subsequent terrorist involvement; and, if such an association exists, whether a concerted programme of state-driven de radicalisation measures is likely to be viable and productive. This chapter will review the current state of the Prevent programme. It will argue that the government’s approach to counter-terrorism has been characterised by two distinct models of radicalisation and de radicalisation, the key distinguishing factor being the salience given to ideological as distinct from social factors. The significance of ideological factors in the literature on desistance from crime will then be reviewed, focusing on the interaction between social and situational changes on one hand and subjective and ideological changes on the other, and on particular types of subjective change which do and do not promote desistance. Reference will then be made to a qualitative study of desistance from gang involvement, which will suggest some ways of conceptualising the belief factors which may be involved in desistance from political as well as non-political crime. These will provide a frame of reference for suggestions as to how government interventions to reduce organised political violence might best be organised, and a concluding discussion of the ideological focus of the Prevent programme.

And here’s one which has been reviewed and provisionally accepted for a special issue of Studies in Conflict and Terrorism next year:

Closure through resilience: the case of Prevent

This paper argues that resilience in the face of terrorism, at the level of a political system, is best conceptualised as a response to disruption of the political sphere leading to the destabilisation of political relationships; this disruption is triggered not by violence as such, but by the forceful incursion of a would-be political actor denied representation and legitimacy. The challenge posed by political disruption and destabilisation is related to a typology of political systems, suggesting that the most resilient political systems are also those exhibiting executive unity together with a high degree of democratic openness. The ideological negotiation required to deal with political disruption is related to the model of the social movement ‘cycle of contention’; it is argued that engagement with terrorist disruption may similarly take both inclusive and exclusive forms, with consequences for the openness and hence the future resilience of the system. The arguments and appeals used to support the British government’s ‘Prevent’ counter radicalisation initiative, launched in 2003 and reworked in 2009 and 2011, are analysed as a source of data on a process of engagement with a disruptive political incomer; the engagement is shown to be emphatically exclusive.

WIP 2: Public nudity and the future of the ASBO

Then, back in October, I wrote a short piece for The Conversation. I recommend it: they were an absolute pleasure to work with, and it meant my work reached a four-figure audience with very little effort on my part. Here it is:

How the end of the ASBO could make naked ramblers of us all

By Philip Edwards, Manchester Metropolitan University

Stephen Gough – widely known as the Naked Rambler – has lost his case at the European Court of Human Rights in Strasbourg, which disagreed that his repeated convictions and jail terms violated his rights to private life and freedom of expression.

It’s just the latest in a series of setbacks for Gough, who had just seven days of liberty between May 2006 and October 2012. Earlier in 2014, he was arrested as he left the prison where he had just completed a 16‑month sentence for public nudity. A police officer approached him, wearing his signature outfit of socks, boots and rucksack, and offered him a tracksuit to put on. When he refused, he was arrested and remanded pending trial.

On October 6 he was sentenced to two and a half years in prison. If, at the end of his current sentence, Gough once again walks out of prison au naturel, the same thing will presumably happen again.

Given the Court’s decision, Gough’s nudism seems likely to confine him to prison and police cells indefinitely – odd, given that public nudity is not a crime. There is a criminal offence of “disorderly behaviour”, and Gough has previously been found guilty of it. But that wouldn’t get him locked up, since the maximum penalty is a fine.

There is also an offence of “exposure” (maximum sentence two years) – but to be found guilty of this you have to have displayed your privates with the intention of causing alarm or distress, and Gough has shown no such motivation.

Why, then, is he serving a sentence longer than any he would have got for being a flasher? Because of an ASBO.

Clampdown

Gough is under an anti-social behaviour order banning him from appearing in public with his buttocks and/or genitals exposed (considerately, the order makes an exception for nude beaches). The sentence for breaching an ASBO can be as high as five years in custody; if there are repeated breaches, it’s expected that each new sentence will be higher than the last. So: 16 months last time, this time 30.

An ASBO can be given to anyone acting in a way that causes, or is likely to cause, harassment, alarm or distress. We do not know that Gough’s nudity had offended anyone, but his ASBO could be justified on the basis that somebody was likely to take offence sooner or later.

Once the ASBO was imposed, on the other hand, Gough was in trouble the moment he breached it; the question of how much offence he was causing (if any) became irrelevant. In effect, appearing naked in public is now illegal, for one person – the one person most committed to doing it.

And given Gough’s sincere personal commitment to going naked, it’s hard to see a way out.

His ASBO has no time limit, as do many of those currently in force. ASBOs are sometimes lifted, but usually on the basis that the problematic behaviour has ended. Gough has had no success appealing against earlier convictions, including one case in which a district judge declared that public nakedness was not only disorderly but met the standard of “insulting, abusive and threatening” behaviour.

Unless Gough can persuade his next jury that his beliefs are a reasonable excuse for breaching his ASBO, another conviction is inevitable.

The good news, on the face of it, is that ASBOs are on the way out. An act replacing the ASBO was put before Parliament in 2013 and became law in March 2014, meaning the new injunction powers should finally be available early in 2015.

The bad news, though, is depressing indeed: the new regime offers little hope for people in Gough’s situation. Not only will existing ASBOs remain in force, but the new injunctions for anti-social behaviour will be even easier to impose – and their power will arguably be even more controlling.

Contempt and contrition

An injunction can be served on someone who “threatens to engage” in anti-social behaviour. In the residential context, the bar is set still lower, with anti-social behaviour defined as “conduct capable of causing housing-related nuisance or annoyance”. The new injunctions can also included positive requirements as well as prohibitions.

Unlike an ASBO breach, breaching the new injunctions is not a criminal offence; rather, it is contempt of court. That means that instead of standing trial, an individual who breached an injunction would face a committal hearing. If contrition was expressed, the contempt would be “purged”; if not, the judge would pass sentence, which could be anything up to two years in prison. Contempt does not create a criminal record, but this is cold comfort.

For a nonconformist like Gough, or anyone else whose behaviour might be deemed anti‑social, the new powers are alarmingly draconian. Jury trial for an ASBO breach at least offers the remote possibility of acquittal; a judge, sitting alone, will have no reason to look beyond the facts of the conduct amounting to contempt.

The ASBO is widely agreed to have outlived its usefulness. Unfortunately, its replacement looks set not just to retain most of the ASBO’s negative features, but to add some more of its own.

From 2015, individuals whose harmless and legal behaviour causes offence will start to be subjected to lifelong packages of personally-tailored coercion, including positive requirements as well as prohibitions, all under the ever-present threat of a prison sentence.

Stephen Gough’s situation might seem extreme today – but in a few years, it might be all too familiar.

The Conversation

This article was originally published on The Conversation.
Read the original article.

WIP 1: The rule of law – beyond or towards?

Sorry about the long silence. I’ve been reading a lot about strict liability, for reasons connected with the critique of regulatory justice which I’ve been playing with for the last several years: only another book and about a dozen papers to read, and then I can definitely start rewriting it, probably. I’m planning to read The Concept of Law for a third time, but accompany each chapter with the relevant chapter in the anthology Reading HLA Hart’s The Concept of Law; I’m sure that’ll make for some top blogging. And I’ve got a couple of papers to write, and a project to plan, and then there’s teaching, not to mention marking.

Anyway, here’s what I’m working on at the moment. I’m not sure if all the angles trailed in the original abstract will make it into the finished paper – the idea of gangs as sites of ‘wild’ regulation is one I keep meaning to get round to exploring – but I’ll do my best. This is for an anthology being put together for 2015 publication by the European Group for the Study of Deviance and Social Control, for whose 2014 conference on abolitionism it was originally intended (I wasn’t able to attend due to illness).

Law after law? Abolitionism and the rule of law

According to Simmonds, the law has an inherent morality, making it an intrinsically valuable social project; Waldron argues that the institutions and practices making up the rule of law encapsulate, and may constitute, key virtues of the concept of law. However, this liberal vision of the rule of law is predicated on two concepts which are alien to anarchist and abolitionist perspectives – the state, its authority ultimately guaranteed by unchallengeable coercive power, and its antagonist the rights-bearing, self-interested individual. Can we think in terms of the rule of law without invoking state coercion or competitive individualism? Is the morality of law an ideological construct specific to the era of capitalist competition, or does it embody ideals which would remain valuable in a society not predicated on capitalist economics and state coercion? If we assume that such a society would have its own (rule of) law, how do we envisage transitional or prefigurative forms of law? This paper suggests some provisional answers to these questions, drawing on contemporary jurisprudential debates and on studies of the alternative legalities imposed by gangs and ‘armed struggle’ groups.

Hart and me

About two months ago I started reading H.L.A. Hart’s Essays in Jurisprudence and Philosophy. I’d read Hart’s The Concept of Law and found it fascinating; it sets out a model of the law to which I’m strongly opposed, but it does it in a way that leaves very little purchase for criticism. I took the volume of essays out from the library on a whim a while ago and started reading it in June.

About six weeks ago I started writing about Hart’s Essays in Jurisprudence and Philosophy, and once I’d started I found it hard to stop. By the time I reached the end of my mental list of issues on which I felt I needed to make some comment – if only to clarify my own thoughts – I’d read another thirteen papers (by Duxbury, Dworkin, Ely, Gardner, Green, Keating, Kramer, Lyons, Mackie and Rawls) and written fifteen blog posts, totalling just under 30,000 words.

I don’t know if there’s a paper in there anywhere; I’m self-taught in this area (my background’s in history) and my arguments are probably fairly basic. But I’ve enjoyed doing it.

For future reference – if only my own! – here are links to those fifteen posts, with a representative quotation from each one. Share and enjoy!

 

The first three posts are in response to the 1976 paper “Law in the perspective of philosophy”.

Some baby! (Hart on Nozick) (800 words)

“For Hart, a model of justice was first and foremost a model of justice as it was administered in the real world: if such a theory pointed us in the direction of greater, less compromised or better-distributed justice, so much the better, but its first hurdle was to fit the reality of justice as we knew it. In Hart’s view, by defining justice in terms of principles which could only be realised in Utopia, Nozick had succeeded only in severing his own ideal of justice from the common-or-garden justice about which other theorists wrote.”

Hart, Nozick, Dworkin (in that order) (2400 words)

“Dworkin’s argument against other-directed preferences seems to boil down to saying that majority votes – and utilitarian greater-good arguments – are problematic when they justify things that are wrong; the question of what actually is wrong remains open (and, I would add, political). It could be argued that these considerations of value pluralism have nothing to do with equality of respect – in other words, that these are arguments we would have been having anyway – but in fact that’s the point: Dworkin’s metric gives us no guidance precisely when we need it.”

Earthbound skyhooks: Rawls and Dworkin (also responds to the 1973 paper “Rawls on liberty and its priority”) (1400 words)

“Rawls – like Dworkin – takes what appears to be a very different and much more worldly approach than a frank utopian like Nozick, but on inspection there’s something quite different – and stranger – going on than a simple opposition between utopianism and realism. The difference between Nozick and Rawls isn’t that Nozick built castles in the air; it’s that when Rawls built his castles in the air, he built them on the ground.”

 

The next six posts all address arguments in “Rawls on liberty and its priority”, taking into account Rawls’s responses in his 1982 lectures published as “The basic liberties and their priority”.

Hart on Rawls – 1 (2100 words)

“although Rawls treats his basic liberties as discrete and distinct, to the extent that they can be balanced against one another there must be a Liberty behind the curtain which they jointly make it possible to approach – or at least a Liberty-stuff which they each in their different ways produce. If this is the case, the basic liberties are not fundamental, but different aspects or facets of the production of fungible Liberty-stuff, or of the approach to an ineffable Liberty. And if that’s the case, clearly Rawls’s list can’t be taken as definitive; the possibility that it might need to be lengthened, and – more disruptively – the possibility that it might be appropriate to trade down one or more of our current list altogether, can’t be avoided.”

Hart on Rawls – 2 (1900 words)

“Either the conflict between rival liberties can be resolved in principle (in which case let’s get on and see how we can do it), or it can’t (in which case we are leaving a lot of important questions to be settled politically – and it’s not clear what philosophical work the basic liberties are doing). Rawls appears to be putting forward a middle position, in which conflicts between liberties can be resolved at the level of principle but we don’t know how. If, as Rawls seems to be suggesting, the key factor in making the resolution philosophically possible is the nature of the adjudicator – the “representative equal citizen” with her Good-oriented rationality – then we don’t seem to be saying much more than that people would get on much better if they were nice.”

Hart on Rawls – 3 (1600 words)

“There is no theoretical or practical difficulty encroaching on liberties so as to prevent harm; societies do it all the time. However, justifying those restrictions in a coherent and generalisable way has proved to be a serious challenge for political philosophy. Rawls, oddly, doesn’t seem to say much about it, other than to rule it out on principle – because a liberty should only be curtailed for the sake of a liberty (of greater significance). Can this be accepted, and if so how?”

Hart on Rawls – 4 (2300 words)

“Rawls assumes a society of free and equal persons, each of whom is capable of two things: social co-operation, subject to the demands of fairness and promise-keeping which can be called ‘reasonable'; and ethical deliberation, within the framework of logic and value which can be called ‘rational’. In terms of entry requirements for the world of his model, Rawls has set the bar surprisingly low. To derive the priority of liberty – or any other of Rawls’s apparently idealistic or counter-intuitive formulations – we may not need to assume a world of model citizens; perhaps all we need to do is to assume that everyone is capable of working together and valuing one set of ideas more highly than another”

Hart on Rawls – a review (1500 words)

“I sense that Hart saw a deep equivocation here, between a model which could exist (in the sense that it rests on valid assumptions about human nature) and one which could exist (in the sense that the model itself represents an imaginable society). It may be that Rawls only saw himself as developing the first of these; however, to the extent that such an abstract standard can be a driver for reforms to the society we have, it must surely be possible to envisage reforms which would represent steps towards it, even if they were fated never to reach it. And, if Rawls’s model is supposed to represent something approachable (even if not attainable), we’re back to the original question: why are his subjects so nice?”

The names of the Rawls (1400 words)

Rawls, quietist: “the ideal outcome seems to be, not merely a system without injustice, but one without conflict. The point is not that conflicts of interest and diverging preferences would be taken into account, but that they would always already have been taken into account. I find it hard to reconcile this line of thinking with Rawls’s evident assumption that political processes would operate in his imagined society; I’m not sure what point politics would have. This is not, in other words, the work of someone who believes that human history has always been and always will be driven by scarcities and conflicts of interest.”

(The other names I tried out are ‘bourgeois liberal’, ‘right Libertarian’, ‘Right Hegelian’, ‘utopian’ and ‘Pragmatist’ (note capital P).)

 

The next post stands on its own, as does its infamously difficult subject:

Mutterings in favour of Kelsen (in response to “Kelsen visited” (1963) and “Kelsen’s doctrine of the unity of law” (1968) (2000 words)

“Hart’s arguments against Kelsen are both meticulous and dense, but they take two main forms: demonstrations that one of Kelsen’s assertions cannot be logically sustained, or has unsatisfactory implications if assumed to be true; and demonstrations that, even if true, the assertion would not do the work Kelsen claims that it does. I’m certainly not in a position to say anything authoritative about Kelsen, let alone rebut any of Hart’s criticisms. In this post I want to take on an easier target: Hart’s bafflement.”

 

Finally, a series of five posts relating to Hart’s debate with Lon Fuller. The focus is on Hart’s concessions to natural law theory, taking into account two papers by David Lyons. Hart suggested that Lyons’s arguments – supporting a position on natural law in some ways more severe than Hart’s – might prompt ‘considerable modification’ of his own position, although he did not (to my knowledge) follow up this suggestion.

Hart and natural law: the three concessions (2200 words)

“There are certain adverse outcomes to which we are all vulnerable, in any imaginable human society, and which – crucially – we can all bring about in others: anyone can kill or be killed, steal or be stolen from, abandon or be abandoned. Hence a certain minimum, presumptively universal, content to the law, which can without too many problems be called natural. (It might seem that deprivation of human kindness – abandonment by one person of another – is considerably less serious than robbery or violence. But consider that, in most cases where one adult can be said to abandon another, it will be unclear who has deprived whom of kindness. Ideas of abandonment come into play – and into the realm of the law – where one party is need of care and/or the other has a duty of care.)”

Hart and natural law: Lyons on formal justice (2300 words)

“In [one hypothetical] case, we know that the law is just and that a just decision is, at least, highly likely; in [another], we know that the criteria given by the law are not just, and that the possibility of a just outcome is vanishingly small. Can we still speak of injustice being done by a capriciously varied application of the law – perhaps, if the judge delays three days before passing sentence, rules on a second case in five minutes flat and reads the third sentence in a silly voice? This, surely, would be a violation of fair official treatment of which even the acquitted defendants could complain, and which would make the position of the defendants in the nightmare scenario still worse.”

Hart and natural law: Lyons on Fuller (1300 words)

“[Lyons writes:] ‘we cannot learn what use of sanctions is (or would be) unjust simply by understanding what the law is. We need to know what constitutes an injustice. And so far, our understanding of what the law is tells us nothing about that.’ On the contrary – Fuller might have answered – while ‘our understanding of what the law is’ may tell us nothing about injustice, our ordinary-language understanding of injustice tells us that the imposition of laws which could not be followed would constitute an injustice. The question of justice is engaged by the process of ascribing, to some individuals but not others, the social status of having broken a law; break the link between this status and those individuals’ past freely-chosen actions, and injustice necessarily results.”

Hart and natural law: the three concessions reviewed (3000 words)

“A striking virtue of Fuller’s argument is that it considers legal systems as a whole, arguing that they may exhibit the same merits and defects in many different ways. An individual law may be unfollowable for reasons of content, structure, administration or enforcement: because it clearly requires the impossible, or because it is drafted so badly as to be incomprehensible, or because it is liable to be changed without warning, or because it is only capriciously enforced. With this in mind, it is worth recalling the first aspect of the minimum content of natural law – the substantive element – and asking whether it may have any bearing on the other two, wholly or partly procedural, elements. If laws – some laws – are required in any conceivable human society, for the sake of bare collective survival, does this tell us something about the nature of law? Might it be appropriate – natural, indeed – to take as a starting point the assumptions that (contra Lyons) law does in fact embody the value of justice in society, and that (contra Hart) this value is of supreme moral importance?”

Hart and natural law: reactions (2900 words)

(On three papers by Matthew Kramer, Leslie Green and John Gardner)
“Kramer’s critique of Lyons is excellent, and his position on procedural justice – that it is a virtue but should not be seen as a moral virtue – seems authentically Hartian; I was not convinced by the argument by which he supported it, though. Green fills out the legal positivist background very usefully, as well as alighting on a potential connection – not necessarily one Hart had in mind – between a procedural morality of law and the minimum content of natural law. Gardner’s paper does an excellent job of presenting Hart as a liberal idealist, albeit one with a neuralgic reaction to the word ‘morality'; the argument is very much in line with my own thinking about the law, but as an interpretation of Hart I found it less persuasive.”

 

About a boycott

A few basic principles about boycotts.

1. Politically-motivated choice is legitimate

1.1. Jane is purchasing a good, which we’ll call G. What G is doesn’t matter – some oranges, a magazine subscription, a cultural event which her organisation will host. G1 and G2 – the offerings from suppliers S1 and S2 – are more or less equivalent in Jane’s estimation. She has to choose one or the other; she chooses G1 over G2 not because of anything to do with the good itself, but because political principle P predisposes her against supplier S2.

1.2. This choice, as described, is plainly legitimate. It’s a familiar kind of calculation: under apartheid, South African apples and wine were (probably) as good as similarly-priced alternatives; like many other people, I chose not to buy apartheid produce. Ultimately it is no different from a politically-motivated positive choice: the choice to shop at the Co-op rather than Tesco, say, or to take out a subscription to Red Pepper rather than the New Statesman.

1.3. Of course, we may not agree with the specific principle P which motivates Jane’s choice, and if so we may not approve of the choice. But we should not expect to approve of all Jane’s choices, unless we already know that we are in complete agreement with Jane. If Jane’s purchases are guided by her enthusiasm for veganism or her support for the Liberal Democrats, she is not going to make the same choices that I would make. Her choices are her concern.

1.4. One person’s choices may have effects on other people. If I disagree with Jane’s principles, then – to the extent that her choices affect me – I may well not be happy about them; if Jane is doing my shopping for me, I may even end up asking somebody else, with more sympathetic principles, to do it. But Jane’s choice – like my choice in this second scenario – remains legitimate: she is a free and rational individual who has the right to hold her own set of principles P and choose how to follow them, as are we all.

2. Boycotts are legitimate

2.1. A boycott is a special type of politically-motivated choice. Jane boycotts supplier S when she chooses to go without good G altogether rather than offend against principle P. It is intrinsic to a boycott that G is valuable. (If G were not of particular value – if it were a matter of choosing between broadly equivalent rival Gs – we would be looking at a choice rather than a boycott; and if G were of no value to Jane she would not have chosen to purchase it in the first place and the question would not arise.) A boycott is a sacrifice: Jane is giving up G, which she values, for the sake of P.

2.2. Somebody carrying out a boycott imposes a disproportionate cost on herself – disproportionate in the sense that P is taken as an absolute constraint, not to be weighed as one factor among others. This, too, is legitimate. When I was younger I had a particular fondness for Granny Smith apples – no other fruit hit the spot – but I would and did deprive myself of them rather than buy South African. Again, we can liken the disproportionate cost of a boycott to the disproportionate cost of a positive choice: the decision to take out a subscription to Red Pepper in the certain knowledge that one wouldn’t read it, for example. (Perhaps because one already had a subscription. It’s really quite good these days; the cultural coverage has improved a lot.)

2.2.1. The value of G is not an argument against boycotting S. A boycott is a sacrifice; the more valuable G is, the greater is the sacrifice undertaken in boycotting its supplier S. A boycott cannot be challenged by emphasising the value of G (but you really like Granny Smiths!). If anything, the value of G counts in favour of the boycott: if G is extraordinarily valuable, the boycott is an extraordinarily powerful demonstration of Jane’s commitment to P.

2.3. We saw, in the broader case of political choices, that one person’s choice can affect other people, and that someone who disagrees with P may not approve of choices motivated by P. Both of these points necessarily apply in the case of a boycott. Suppose that Jane is an extreme right-winger who supported the Pinochet regime and holds a grudge against all subsequent Chilean governments. Most people reading this will not approve of Jane choosing not to buy Chilean produce, all other factors being equal, on those grounds; a fortiori, we would certainly not approve of Jane applying an absolute boycott to Chilean goods on those grounds.

2.4. Nor would we be happy about Jane doing our shopping for us, if we were housebound or incapacitated. But Jane’s choices are still legitimate, despite the repugnance of their grounds – and hence of their consequences, or rather of the implications which can be drawn from their consequences.

2.4.1. The value of G to a third party is not an argument against boycotting S. The argument at 2.2.1. holds: the message of the boycott is now that Jane’s commitment to P is such that she is willing to bear the cost of disappointing other people by depriving them of G. An ethical greengrocer could choose to refuse to stock South African produce, even in the knowledge that its customers had a particular fondness for Granny Smiths and did not share her beliefs. The choice might not be good business, but it would be legitimate and should be respected as such.

3. Politics come first

3.1. It makes no sense to challenge a boycott as harmful or costly: a boycott is a sacrifice. It makes no sense to challenge a boycott as disproportionate: it is in the nature of boycotts to be disproportionate.

3.2. A boycott is a costly and disproportionate act carried out in commitment to a political principle. To the extent that we do not share that commitment, we will not approve of the boycott.

3.2.1. However, to the extent that we do not share that principle, we would not approve of any action motivated by it, just as we would not agree with any statement made to advance it.

3.2.2. The political discussion is separate from the question of the legitimacy of the tactics used.

3.3. The key question to be asked of a boycott is: assuming rational actors motivated by a genuine commitment to a political principle which can legitimately be held, can this disproportionate sacrifice be justified? (The question is not whether we believe that it is justified.)

3.3.1. This is a question expecting the answer Yes. A boycott is, in principle, a legitimate political tactic, irrespective of our position on the political cause involved. (It may on occasion not be the best tactic to use, but this is a question for the people using it.)

3.3.2. To say that a boycott is not a legitimate tactic is, generally, to say that the principle for which it is undertaken is not a legitimate political cause.

4. Inconsistency is irrelevant

4.1. If I have never stolen, I can steal for the first time. If I have never handled other people’s money without stealing, I can choose not to steal for the first time. Perhaps the acts I have never carried out are political: I have never taken out a magazine subscription on the basis of a positive political commitment, or crossed ‘apples’ off my shopping list on the basis of a negative commitment. This has no bearing on whether I choose to do either of these things in future.

4.2. The value of an action is not determined by whether the actor has ever done it before; the legitimacy of a choice is not determined by whether the actor has ever made that choice before.

4.3. To criticise somebody for imposing a boycott for the first time, in pursuit of a principle one supports, would amount either to holding them to account for something they are no longer doing or criticising them for an improvement in their conduct.

4.3.1. We may believe that the boycott is an aberration and that in future their conduct will return to its original course; however, this in itself does not give any grounds for criticising their present behaviour, which by definition we approve of.

4.4. We may criticise somebody for imposing a boycott for the first time, in pursuit of a principle we do not support; in this case, however, we would not be criticising their inconsistency but (simply) the fact that they were taking action in support of a principle we did not support.

4.5. The fact that a boycott is being imposed for the first time cannot make it illegitimate.

5. Selectivity is inevitable

5.1. In one light, selectivity at a given time and inconsistency over time are the same concern, and are equally irrelevant. Why did I steal from that particular newsagent when I’d never stolen before? Because that was where I happened to be. Why did I hand over this purse untouched when I’d always stolen from them before? Because that was the one I was handling when the pangs of conscience struck. There is no reason to ask these questions.

5.2. Someone boycotting a particular supplier S, on the basis of a particular (legitimate) principle P, can be accused of ‘singling out’ S. There may be many potential suppliers – S1, S2, S3… – whose deserve to be boycotted on the basis of P. Moreover, there are many legitimate political principles – P1, P2, P3… – on the basis of which boycotts could be implemented. Why this principle? Why this supplier?

5.2.1. To guide one’s conduct by every imaginable political principle (P1, P2, P3…) is an obvious absurdity.

5.2.2. To guide one’s conduct, to any significant extent, by every political principle to which one assents would in practice be impossibly burdensome, unless one’s political commitments were extremely limited.

5.3. The narrower goal of applying a single principle with complete consistency – boycotting every supplier who infringes it (or else boycotting none of them) – may seem realisable in theory, but reflection shows that complete consistency would require complete knowledge and the willingness to take any imaginable cost.

5.3.1. Complete consistency in the application of a single principle is an ideal rather than a standard: in Fuller’s terms, part of a morality of aspiration (a set of excellences one aims to realise) rather than a morality of duty (a set of minimum requirements one undertakes to meet).

5.3.2. To criticise somebody for inconsistency in the application of a principle one supports is to criticise them for failing to realise an ideal, not failing to meet a standard.

5.4. To criticise somebody for inconsistency in the application of a principle one does not support is, in general, to criticise them for acting on that principle at all (see 3.2.1.).

6. Equality is difficult

6.1. Although the effects of a boycott on third parties do not, in general, affect the legitimacy of the boycott (see 2.4.1.), a boycott whose effects tend systematically to disadvantage a particular population group – by depriving them of goods or services, or even by causing them offence and distress – may be illegitimate for that reason.

6.1.1. This is true of any action which has such effects; there is nothing about boycotts making them particularly liable to delegitimation on these grounds.

6.2. The principle of non-discrimination is unproblematic in the case of innate characteristics such as gender and ethnicity, and relatively unproblematic in the case of religion (which very often amounts to an innate characteristic, at least in the perceptions of the believer herself).

6.3. Extending it to political beliefs – even long-held and hard-to-change beliefs – is problematic, however.

6.3.1. To hold a political belief is to believe that certain changes should be made to the distribution of wealth, power and relatively advantage, and that certain arguments should be made and listened to more widely.

6.3.2. To pursue a political belief is to make arguments which may offend one’s opponents, and to attempt to realise changes which will disadvantage them.

6.4. There is an asymmetry built into prejudices against innate characteristics: the political actor who aims to disadvantage Jews, Muslims, women or children has many opponents who are not political actors.

6.4.1. By contrast, political prejudice is symmetrical: to be prejudiced against Liberal Democrats, for example, is to be prejudiced against political actors like oneself.

6.4.2. Within the political context, animosity towards other political actors is normal; within this context, the idea of political prejudice has very little meaning.

6.5. To delegitimate political discrimination is to cantonise politics as a specialised pursuit, only engaged in at set times and in certain places.

6.5.1. This is undesirable.

6.6. To delegitimate political discrimination in a given area is to delegitimate political action in that area.

6.6.1. In some areas (e.g. the employer/employee relationship) political action should in fact be illegitimate, making the delegitimation of political discrimination unproblematic.

6.6.2. In others, outlawing political discrimination (and hence political action) may be the only way to be sure of outlawing racial or religious discrimination.

6.7. In all cases, delegitimating political discrimination has a cost and should only be undertaken with that cost borne in mind.

Hart and natural law: reactions

The spark for this series of posts was a brief comment at the end of the Introduction to Hart’s Essays in Jurisprudence and Philosophy:

I hope that in what is a second exchange of friendly polemics between myself and Fuller … I have not been unfair in my criticisms of his conception of an inner morality of law; but I see now largely as the result of Professor Lyon’s [sic] essay on Formal Justice that an argument similar to mine against Fuller might be used to show that my claim made in [“Positivism and the separation of law and morals”] and repeated in my Concept of Law that a minimal form of justice is inherent in the very notion of a general legal rule applied according to its tenor to all its instances is similarly mistaken. I am not sure that it is so, but I am clear that my claim requires considerable modification.

As well as wanting to investigate the possible implications of this suggestion myself, I was intrigued to see what writers on Hart had made of it. A quick literature review – carried out by the unscientific method of searching for the name Hart and the phrase “requires considerable modification” on Google Scholar – brought back three papers, by Matthew Kramer, Leslie Green and John Gardner. (This is not a discussion of Hart’s approach to procedural justice more generally, which would have to range much more widely. To name only the most obvious omission, Gardner’s paper is a response to Nigel Simmonds’s book Law as a moral idea – which I read some time ago and, I’m afraid, have not re-read for this blog post.)

Here, then, are our three authors on Hart on Lyons, and on Hart’s later inclination to row back from the idea that “the very notion of a general legal rule applied according to its tenor to all its instances” embodied a form of justice.

Kramer, M. (1997), “Justice as constancy”, Law and Philosophy 16:561-80.

The focus of Kramer’s paper is on Lyons’s argument against classing formal regularity as procedural justice, and on Lyons’s challenge to Hart. I have argued that there is some equivocation in The Concept of Law as to whether procedural justice is merely a technical merit of a well-functioning system of law – just as killing without detection is a technical merit of a well-functioning poison – or a quality which deserves the name of justice, albeit without any necessary moral weight. Lyons argued for the first of these positions; Kramer argues persuasively for the second. Procedural regularity, Kramer argues, “ensures that official conduct in the administration of laws is no worse (and no better) than what is required by the substantive standards of fairness in the laws themselves”; “procedural justice ensures a minimum of substantive justice – a minimum that is also a maximum, to be sure”.

Lyons argued that Hart’s briefly sketched examples of procedural justice – treating like cases alike, following a rule, impartiality – were empty in the absence of substantive criteria of justice; he went on to argue, contra Hart, that the justice of rule-following was no such thing and that rule-infractions were no more ‘unjust’ than infractions of the rules of grammar. In this respect Kramer’s paper arrives at similar conclusions to my posts, by a slightly different route. Where I had argued that Hart’s idea of procedural justice is best understood as a combination of rule-following and impartiality (in cases where discretion is required), Kramer focuses on rule-following and dismisses impartiality; however, he dismisses it as a stand-alone virtue and does not discuss the relationship between impartiality and discretion. Similarly, with regard to the neutrality of laws and the comparison between criminal and grammatical offences, I wrote:

rules may be contradictory or incomprehensible without any injustice being done, just as rules can be followed or broken without moral implications. However, in social practices where distributive or allocative justice is at stake – where a single standard is being applied to multiple individuals, with potential consequences affecting them – procedural justice is necessarily engaged, and rule-writing and rule-following become questions of justice

(“Allocative justice” refers here to the assignment of legal statuses (e.g. ‘guilty’) and of criminal penalties, which are justly allocated when allocated to those who deserve them. The same argument holds if we think in terms of “corrective justice” instead.) Kramer wrote (in 1997):

a charge of procedural injustice can be perfectly apposite in connection with an infringement or a putative infringement of a linguistic norm – provided that the charge pertains to the groundlessness of someone’s condemnation (or exoneration) of the person who has allegedly infringed (or actually infringed) the norm. When we determine whether a procedural injustice has occurred in relation to such a norm, what matters is not the norm’s morally neutral status but the misdirectedness of someone’s judgment about someone else’s compliance or noncompliance with the norm’s requirements.

Kramer’s main argument turns on his reference to procedural justice as “a minimum that is also a maximum”. As such, he argues, it may be profoundly immoral, to the extent of enforcing the violation of moral obligations:

Although an official of course has a moral duty not to enforce a wicked mandate in situations where it is inapplicable, he does not have a moral duty – even a prima-facie moral duty – to enforce the mandate in situations where it indeed is applicable. He has a moral obligation not to go below the minimum of decency secured by procedural justice, but he also has a moral obligation not to treat that minimum as a maximum.

Where procedural justice sets a minimum (preventing unrestrained official harshness), it is moral; where it sets a maximum (preventing unrestrained official benevolence) it is immoral. Since it always does both of these things, it must be considered as, in itself, neutral – neither moral nor immoral. This is a powerful argument, but focuses – as had Lyons – on the justice of the outcomes produced by procedurally just or unjust processes. As I posted earlier, I think it is sustainable that an inconsistent and arbitrary application of the law carries injustice in itself, by singling out individuals for disrespectful treatment on grounds which are not open to them to understand or challenge. There is no difference in this sense between procedural injustice which produces unlawfully harsh outcomes and procedurally unjust favourable treatment: in both cases, injustice is done to the population as a whole, none of whom can have any confidence that the law will address them as individuals responsible for steering their own conduct.

Green, L. (2010), “The germ of justice”, Oxford Legal Research Paper 60/2010.

Green takes his title from one of Hart’s remarks about procedural justice: “though the most odious laws may be justly applied, we have, in the bare notion of applying a general rule of law, the germ at least of justice”. This ‘germ of justice’ argument stands alongside Hart’s denial of any necessary moral content to the law – “it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so” – and may seem to contradict it, particularly if Hart is held to his earlier formulation: “there is, in the very notion of law consisting of general rules, something which prevents us from treating it as if morally it is utterly neutral, without any necessary contact with moral principles”.

Green asks: if the law (as a system of general rules) offers ‘the germ of justice’ and as such has some necessary contact with moral principles (the ‘as such’ here is the connection broken by Kramer’s argument), how can this be reconciled with Hart’s “separation of law and morals” – now commonly referred to as the ‘no necessary connection’ thesis? To be more precise, Green asks two questions: whether the ‘germ of justice’ thesis can be held consistently with legal positivism, and how (if so held) it could be true. An answer to the first question is to point out that the formulation ‘no necessary connection’ may be altogether too broad: to say that law does not necessarily “reproduce or satisfy certain demands of morality” is not to deny a number of other possible claims about law and morality, which a positivist might feel able to concede (e.g. “law necessarily deals with moral matters; law necessarily makes moral claims on its subjects, law is necessarily apt for appraisal by moral standards”). It may then be that a purely procedural morality of law – summed up in a statement such as “a functioning legal system is morally superior to a poorly-functioning system” – can similarly be entertained alongside a commitment to legal positivism (although Kramer, for one, would not accept this). Another answer is to stress that the ‘germ of justice’ is consistent with key principles of Hart’s legal positivism – specifically, what Green terms the ‘social thesis’ and the ‘fallibility thesis’. In other words, we can hold that the application of the law is always (in some, unspecified and perhaps very minimal, sense) a moral endeavour while also holding that the law is a social construction on which morality has no prior claims, and that actually existing legal systems may be highly fallible in terms of the justice they deliver. The ‘germ of justice’ in this latter formulation is reminiscent of Hart’s half-concession towards Fuller (“if this is what the necessary connection of law and morality means, we may accept it. It is unfortunately compatible with very great iniquity.”); it is a germ that makes no justice.

Green’s answer to his second question covers similar ground to Kramer’s response to Lyons, as well as the conclusion of my post on the purpose of law. Green notes the strong association between norms of allocation and the law, on one hand, and justice on the other: “perhaps we can say that every legal system contains allocation norms, that they are among the most important norms in the system, and that it is among these norms we find norms of justice”. Pursuing this line of thinking, Green notes that “Law is not just any old bunch of social rules”: “if there were general virtues of rule-application, and even if these had something to do with justice, then they would turn up promiscuously whenever and wherever rules are being applied. … If it were simply the ruly character of law that produced the germ of justice, then justice would have no more intimate association with law than it has with grammar or football.” Rather, the function of the legal system is to equip society with “institutions that can identify and authenticate the rules of the system, and that can render binding determinations in any disputes about them”. Hence the connection to allocation norms: “[a]uthoritative adjudication is in its essence an allocative enterprise, for its core function is to settle who is to get what, and on what grounds.” Perhaps, then, the establishment of a legal system (founded on the basic principles of procedural justice) represents the ‘germ of justice’ because it is the fundamental precondition of subjecting society to the rule of law. This remains compatible with the ‘social’ and ‘fallibility’ theses, and with a narrow reading of the ‘separability’ thesis:

To say that a legal system must of its nature settle disputes about certain kinds of concerns, and that these are moral concerns, is not to say that it must do so well or even tolerably. And as Hart insisted time and again, to say that every legal system must deliver the goods to some people does not show that it must deliver the goods to everyone, and that one of the characteristic ways that law can fail, consistently with satisfying the minimum content, is by not delivering them justly. But if we have law-producing and law-applying organs, then we do at least have social machinery by which justice could be made effective

This is an interesting and cogent argument, whose strengths (at least from my point of view) include the fact that I was thinking along similar lines before I read it; great minds, etc. Its key weakness is that – as Green concedes – the route it takes from premise to conclusion does not track Hart’s own thinking; indeed, the rule of law was a topic which Hart seems to have largely avoided, possibly mistrusting its potential for adverse judgments of ‘unlawlike’ legal systems.

Gardner, J. (2010), “Hart on legality, justice, and morality”, Oxford Legal Research Paper 44/2010.

After some fairly knockabout remarks aimed at Nigel Simmonds, Gardner focuses on Hart’s brief and often equivocal remarks about procedural justice (and about Fuller’s ‘inner morality of law’). He concedes that Hart can be interpreted as expressing outright scepticism about the concepts in question (the alternative being acceptance with limited enthusiasm). If a sceptical reading is preferred, Gardner argues, the question is where – in his formulation – the chain is to be broken: is Hart supposed to have believed that law had no necessary connection with the ideal of legality; that the ideal of legality had no necessary connection with justice; or that justice had no necessary connection with morality? In an illuminating argument, Gardner argues that Hart’s conception of law as a system of rules – “general standards of conduct communicated to classes of persons, who are then expected to understand and conform to the rules” – brings with it an assumption that laws are intended to be followed, and not simply cited by officials as a justification for coercive behaviour modification. It follows logically – whether or not Hart himself would have wished to draw this inference – that, to the extent that more laws within a system are being obeyed intelligently and willingly, that system is more lawlike. In Gardner’s words,

the ideal of legality or the rule of law is an ideal for law because there is a conceptually necessary feature of a legal system, namely that it is a system of rules, which entails that it has a proper way of functioning as a legal system, namely by guiding or (as we also put it) by ruling those who are subject to it.

As for the relationship between legality and justice, Gardner argues that the principles of legality are principles of justice: they guide free and rational individuals in such a way as to make it possible to reach a satisfactory adjustment of claims between multiple individuals. At this point Gardner endorses Lyons’s critique of formal justice (more or less in passing), dismissing any connection between justice and the law in and of itself. As with Lyons himself, the argument here seems to rest on a broader and more expansive definition of ‘justice’ than is usually implied in the phrase ‘procedural justice’. The question of whether, if an unjust society began to follow its rules more uniformly, there would be any gain in justice is not directly addressed.

Gardner sews up the relationship between legality and justice fairly tightly, but in an argument which I found difficult to paraphrase and not much easier to get to grips with. On the relationship between justice and morality he is more inconclusive and to my mind more interesting. He canvasses three readings of Hart on morality and the law, and the ‘inner morality of law’ in particular. One is that Kramer’s reading is correct – Hart believed in justice as a (more than technical) virtue of functioning legal systems, but not as a moral virtue. This reading is well supported by Hart’s own words; Gardner seems to reject it because he finds it too outlandish. A second is that Hart’s lukewarm endorsement of Fuller’s ‘inner morality of law’ should be taken at face value: Hart believed that Fuller had indeed identified a morality of law, but not a complete set of moral criteria for judging the law (which would require attention to the substantive aims of the law). This is weakly supported by Hart’s writing and – perhaps more importantly – would have represented a serious misreading of Fuller, whose ambitions for his ‘inner morality’ were less ambitious than this. The third reading, to which Gardner inclines, is itself inconclusive; perhaps, Gardner argues, the key is that ‘morality’ was a difficult concept for Hart, in whose presence his thinking became more than usually tentative and disconnected.

Reviewing the three papers, Kramer’s critique of Lyons is excellent, and his position on procedural justice – that it is a virtue but should not be seen as a moral virtue – seems authentically Hartian; I was not convinced by the argument by which he supported it, though. Green fills out the legal positivist background very usefully, as well as alighting on a potential connection – not necessarily one Hart had in mind – between a procedural morality of law and the minimum content of natural law. Gardner’s paper does an excellent job of presenting Hart as a liberal idealist, albeit one with a neuralgic reaction to the word ‘morality'; the argument is very much in line with my own thinking about the law, but as an interpretation of Hart I found it less persuasive.

Hart was clearly resistant to any argument which would suggest a necessary connection between morality and either the structure or the content of law; the evident appeal of Lyons’s formalism to Hart may have derived from its undertaking to sever morality from formal justice. If Hart had reworked his position in CoL to take account of Lyons’s argument, however, I think he might have found it came at too high a price; short of a Kelsenian late-career volte-face, I can’t imagine that the changes would have been any more than cosmetic.

A dry season

1. It’s great when you’re straight, yeah

I have a beer most nights – just the one, usually. I’m fairly conscientious about my intake; I have one dry day every week and often two, and tot up my weekly units every so often (the number’s never been at all alarming). But a low level of regular alcohol consumption is a normal feature of my life, and has been for some time. I don’t think I’ve gone as long as ten days without a drink since an ill-advised ‘detox’ attempt back in the 90s (three long weeks of muzzy caffeine withdrawal); before that you’d probably have to go back to my teens or early 20s.

I’m not a heavy drinker and never have been; I’ve never worried I was overdoing it, never felt I ought to cut down, never been tempted by a ‘dry spell’ like Alcohol Concern’s ‘Dry January’ teetotalism-for-charity initiative. (I have occasionally worried that I might overdo it; this may be connected to my lack of anxiety about my actual consumption, by a kind of precautionary anxiety principle.) If I did try and abstain for as long as a month, mind you, I think I’d find it tough. Beer writer Pete Brown has written a couple of times about his own personal ‘dry January’ routine (“I try to go dry for January every year, and have done so for years – since long before it became a piece of nonsense to beat people with”). His account makes it sound – as Guy Debord wrote of his own alcoholism – émouvant mais difficile:

In the first few days, you notice the better sleep, the higher energy, the greater clarity of thought. My blood pressure, which landed me in hospital in October, is now verging on normal. After a couple of weeks, you realise you’re thinking differently. You’re more in the moment, more thoughtful, more connected. This is not always pleasant. But like the physical benefits, it does feel like it’s doing you some good.

By the second week you start to feel like a cultist praising the virtues of abstention. By the third week, you start to notice that everything is bright and shiny and hard. Perhaps a little TOO bright. It’s natural and healthy to sometimes want to fuzz the edges and turn the lights down to mood. I’ve missed that. But I’ve missed the sensory experience of drinking – the aromas and tastes of good beer, cider, wine, sherry and the occasional malt whisky, and the stories that go with them, the associations they have, the connections they make, the contemplations and flights of fancy they inspire – a whole lot more.

Whether that ‘you’ would include me – whether somebody who averages (say) one and a half beers per day is limescaling his sensorium in this way, such that three weeks’ abstention would give his system a hard reset and make the world turn dayglo – is an interesting question; I tend to think the answer’s No, but I’m not in a hurry to find out. That small point aside, it’s clear from Pete’s post that it was quite a long month. Which is no surprise – alcohol is a normal part of most adults’ lives: in a 2011 government survey, two-thirds of men and 54% of women claimed (admitted?) to have had a drink in the previous week. For anyone other than a very occasional drinker, I think a month would be plenty. Admittedly, alcohol is less normal that it has been – in 1998, a similar survey found that 75% of men had had a drink in the previous week; while, in another recent survey, only 39% of under-16s reported ever having drunk alcohol, the lowest figure this survey has ever recorded. But it’s normal for all that; after all, giving up alcohol for a month wouldn’t be something you do for charity if it were something you’d do anyway.

So how about giving alcohol for four months?

People who repeatedly commit alcohol-related crime will be forced to wear ankle tags that monitor if they are still drinking, under a year-long pilot scheme. The “sobriety tags”, to be worn around the clock, will enforce abstinence by measuring a person’s perspiration every 30 minutes and testing to see if it contains alcohol. If any trace is found, an alert will be sent to the offender’s probation officer and they can then be recalled to court, where they may be resentenced or face sanctions such as a fine.

It is anticipated that up to 150 offenders will be fitted with the tags. They will be banned from drinking alcohol for up to 120 days, and the tag will test them to see if they flout the ban. Offenders will be screened before being tagged, and the scheme will not be used on people who are alcohol-dependent and require specialist support. The scheme, being introduced by the mayor of London, Boris Johnsons, builds on a similar scheme in the US and aims to reduce alcohol-related reoffending, ease pressure on the police and courts, and make streets safer.

A salutary initiative which will help some potentially dangerous problem drinkers clean up their act (the view of Deborah Orr in the Guardian)? Or should we be more sceptical?

2. Your weakness is none of my business

The London pilot was provided for in section 77 of LASPO; on its completion the scheme will either be rolled out nationally or repealed altogether. (Section 77(7) is an interesting bit of drafting; I don’t remember seeing an “if this doesn’t work, let’s just forget about it” clause in an Act of Parliament before.)

There are two ways of reading the pilot: it depends whether you see it as having a good chance of success, or as being highly likely to fail. My initial reaction was the latter. If you put me (or, I venture to suggest, most adults) on a total four-month alcohol ban, the result would be a foregone conclusion; inflicting a scheme like this on repeat alcohol offenders is setting them up to fail sooner rather than later. Repeat offenders are people with problems, if that’s not stating the blindingly obvious – you don’t persist in putting yourself at risk of arrest if you’ve got lots of other, less liberty-threatening options. Repeat alcohol-related offenders, specifically, are more likely than not to be people with a problematic relationship with alcohol – and, since alcohol problems tend to involve compulsive activity and the (self-induced) impairment of judgment, people with alcohol problems are more likely than not to breach controls imposed on them. (Although if candidates for this scheme do have drink problems, they’ll have to deal with them on their own. A nasty detail here is that the scheme excludes anyone whose problems amount to dependency, hence qualifying them for support as well as for control measures.)

The role played by the probation officer in this scenario is particularly saddening. Probation was once a coherent alternative to a custodial sentence, based on the belief – initially founded in doctrine but rapidly borne out in practice – that a supportive relationship with a responsible citizen, outside prison walls, can help an ex-offender go straight. Over the last thirty years there has been a stronger and stronger insistence on portraying law-breakers as both wicked and dangerous, and hence on the necessity of both punishment and incapacitation – imprisonment for public safety, putting the offender out of harm’s way. The result has been a reflexive presumption that prison is the right place for a convicted offender, and that ex-offenders in the community should be treated no differently from those inside – treated, in other words, as dangerous wrongdoers who need to be punished and need to be controlled. With suspended custodial sentences replacing discharges, and community sentences first replacing probation as an alternative to sentencing, then having custodial strings attached, the result has been a gradual annexation of probation by the prison system. The role of the probation worker in this scenario is not to “advise, assist and befriend” (the original mission of the probation service) but to monitor ex-offenders, control them and where necessary return them to court for sentencing.

If the scheme works as described – if an alarm goes off every time a tagged offender has a drink, leading automatically to the decision that the offender’s alcohol abstinence order has been breached – the scheme will “reduce alcohol-related reoffending [and] ease pressure on the police and courts” by one means only: by making 150 offenders’ lives a bit less pleasant, subjecting them to stress and anxiety for a while, then recalling them to court and rubber-stamping a prison sentence. (Admittedly, the scheme is not predicated on prison sentences for breach; alternative sentences are available, for example a fine. But the idea that imposing fines on repeat alcohol-related offenders might deter them from reoffending rests on rather unrealistic assumptions about human nature.) Overall, its effect on those 150 people will be to interfere with their lives, imposing technologically-mediated humiliation and harassment, before stigmatising them as failures and disrupting their lives still further. This isn’t rehabilitation, it’s sadism.

If the scheme is intended to work as it is described here, it is being undertaken either naively (in which case it will fail horribly) or cynically. And if it is being undertaken cynically, it represents a peculiarly debased and unlawlike use of the criminal justice system: the imposition of behavioural conditions on an offender, in place of a punitive sentence, in the expectation that the offender will breach them and incur a punitive sentence for the breach. This use of criminal penalties will be familiar to anyone who recalls the history of the ASBO: we remember cases where rowdy youths were barred from particular streets, a graffiti-sprayer from using public transport, a suspected drug-runner from sitting in the front passenger seat of a car – in each case, with the force of a criminal offence. In each case, the offender has (ostensibly) had the option of modifying his behaviour and walking free; in each case, the behaviour prohibited is legal and normal for other citizens; in each case, the behaviour modification requirements are impossible to comply with, or not without intrusions into the offender’s daily life so extensive as to greatly reduce his freedom to lead a normal life; and, in each case, the offender is held responsible for any breach and for the penalty attached to it, thus incurring the stigma of indiscipline and recidivism as well as that of law-breaking. Barring repeat drink offenders from drinking – by law – is only a more direct and straightforward version of the same logic. The inference is that problem drinkers – like anti-social youths – are now seen as a subject population, a minority group needing to be controlled for the sake of the majority, and whose own rights can be disregarded.

3. Computer says No

If the scheme is intended to work as described here… That may be a big If. The Alcohol abstinence and monitoring requirement was added to LASPO after lobbying from a group of American professionals with experience of a similar scheme in South Dakota; one member is Keith Humphreys, a Stanford professor of mental health policy and former White House drug advisor. (Humphreys’s paper on the lobbying process (presented to the International Society for the Study of Drugs Policy) is a fascinating account of how policy transfer works.) In the South Dakota scheme, Humphreys writes,

[alcohol-related repeat offenders were sentenced] to mandatory sobriety coupled with daily testing. Those who tested positive were arrested immediately and given a modest sanction, such as a night in jail. In the 24/7 sobriety model, a slow, inconsistent and capricious system of monitoring offenders was transformed into one that provided swift, certain and fair sanctions for drinking.

The effects were dramatic. A stunning 99.4 per cent of the over five million breathalyser tests administered to offenders have been negative. Despite the punishment for drinking being modest, its certainty and swiftness motivated many previously recalcitrant offenders to change their ways.

Research by the RAND Corporation – a US-based non-profit global policy think tank – found that 24/7 sobriety dropped repeat drink driving arrests by 12 per cent. The same study also yielded a pleasant surprise: domestic violence arrests dropped by 9 per cent, despite not being a focus of the programme. … This week, under the leadership of Mayor Johnsons and his team, a pilot of the programme will be launched in South London. Leaping the pond will come with some challenges, particularly around delivering sanctions swiftly within the constraints of British law, but local tailoring of innovations is always an essential part of making them spread.

It works, in other words. The figures are in: not only do offenders comply with the stay-straight provisions more than 99% of the time, the effects can be seen in the crime figures.

What should we make of this? I’ve got three comments, of increasing generality; let’s say, one technical, one analytical and one philosophical. The technical comment is this: I can’t believe it. I’ve looked at the South Dakota 24/7 Sobriety Program Evaluation Report (PDF here; more information and links here); it tells me that, when 4,009 drink driving offenders were ordered to report to a judge twice a day to be breathalysed, for periods averaging three months, 98.1% of those tests were negative and only 0.3% positive (1.3% of tests did not take place because the participant was excused; 0.3% of tests were unauthorised no-shows). Pace Humphreys, this isn’t “a stunning 99.4 per cent of … over five million breathalyser tests”, for two reasons. Firstly, the 4,009 offenders in the sample took 817,926 tests (an average of 204 apiece); Humphreys may have been generalising from the sample to the programme as a whole. Secondly, the figure of 99.4 per cent includes the 1.3 per cent of tests ‘excused’ and excludes the 0.3 per cent of no-shows; the real positive rate is the total of positive tests as a proportion of the tests taken, or 98.1/(98.1+0.3), which works out as a (stunning) 99.7% pass rate. In the course of their participation in the programme, 2,659 of the 4,009 participants – slightly less than two-thirds – had no negative tests at all. (These are convicted drink drivers, remember, being breath-tested twice a day for a period of months.) Of the remaining 1,350, between 584 and 802 (between 14% and 20%) had precisely one negative test; the number who had four or more negative tests is somewhere between 131 (one in 31) and 267 (one in 15). (The published figures lump together unauthorised missed tests and negative tests as ‘Failures’, making it difficult to derive the exact number of participants who had a certain number of negative tests.)

These figures seem to represent a level of behaviour modification which I find incredible. The programme’s advocates will say that the novelty of this outcome is related to the novelty of its key innovation, the use of those “swift, certain and fair sanctions” – if people know that one drink will infallibly earn them a night in the cells, they’re strongly motivated to stay clean. Maybe so (I’ll say a bit more about this approach further down). Even so, purely based on my knowledge of human nature, I find it very hard to imagine any combination of rewards and incentives having a 99.7% success rate in modifying entrenched behaviour, in any population (imprisoned populations included). Or perhaps I should say, based on my knowledge of British (European?) human nature. I have just as hard a time imagining the participants in such a scheme meekly turning up to be breathalysed 98.4% of the time – again, whatever the incentives and whoever (and wherever) the participants were – but that certainly appears to have happened in South Dakota. It’s a cultural difference, perhaps; when it comes to criminal justice agencies, the British (and British law-breakers in particular) just don’t respect their authority – or not the way that South Dakotans do. (“I thought they were big on liberty over there?” – my wife.)

With regard to the London pilot the point about showing up is moot – the testing is to be carried out by an ankle bracelet, replacing the stigma and inconvenience of twice-daily reporting with the stigma and humiliation of wearing a shackle that spies on you. But the point about the near-as-dammit 100% negative test rate, and the seemingly total behavioural transformation brought about by the programme, is absolutely key – and I think there’s a genuine case for saying that, like a Communist bloc election result, these figures are just too good. A clue of sorts is provided by the RAND research referred to by Humphreys – presented, in the form of a paper by Beau Kilmer, to the ISSDP conference mentioned earlier. In the published version of the paper, Kilmer and his colleagues (Nancy Nicosia, Paul Heaton and Greg Midgette) write:

More than 17,000 individuals participated in the 24/7 Sobriety Project between 2005 and 2010 and their tests indicated that there were approximately 2.25 million days without a detected alcohol violation. This does not mean that there was absolutely no drinking on those days. Rather, it provides support for a reduction in the incidence of heavy drinking among a population with a history of problem drinking.

Emphasis added. Perhaps the South Dakota breathalysers weren’t all that sensitive; perhaps the scheme operated, in practice, like a benign version of the Philadelphia Lie Detector, scaring offenders into cleaning up their act without, for the most part, actually detecting whether they had done or not. The tiny minority of negative tests might be accounted for by the tiny number of occasions when participants turned up with a really substantial amount of alcohol in their system, e.g. still drunk from the night before. The use of breathalysers to carry out the twice-daily test raises the question of what level of blood alcohol concentration constituted a positive result; if the standard DUI level of 0.08% was being used, this would be entirely compatible with participants maintaining a relatively normal level of consumption of alcohol – which in turn would make that 99.7% pass rate considerably less surprising.

This kind of approach is not planned for the London trial, however. The Alcohol Abstinence Monitoring Requirement Toolkit produced by the Mayor’s Office (downloadable here) notes:

[LASPO] allows the court to specify that the offender cannot drink more than a specified amount of alcohol (expressed as the proportion of alcohol in any one or more of the offender’s breath, blood, urine, sweat or by some other means); thus allowing for the possibility of minimal drinking rather than abstinence. For the purpose of the pilot, this provision will not be used and complete abstinence will be enforced.

Sure enough, the statement to be signed by participants in the London trial states baldly “I must not drink any alcohol until my requirement ends.” This, however, raises the question of evidence. The most widely-cited figures for the South Dakota scheme appear to be based on a sample of 4,009 participants who submitted to a twice-daily breath test, which (according to Kilmer et al) did not return a positive result for low levels of alcohol. Generalising these results from South Dakota to South London – a vastly different setting both culturally and legally – is problematic enough. Using a ‘low consumption’ success story to justify a ‘total abstinence’ trial – in a different country, with a different legal system – is problematic in a more fundamental sense; it’s not comparing like with like.

4. He’s got ’em on the list

Still, the effectiveness of the South Dakota pilot is proven; there’s that 12% drop in repeat DUI arrests that we heard about, and the 9% drop in domestic violence arrests. (According to Kilmer et al, after being implemented the programme was rapidly extended to cover arrests for offences other than DUI – specifically including domestic violence – so it’s not quite correct for Humphreys to describe the fall in domestic violence arrests as a ‘pleasant surprise’, a side-benefit of a programme focusing on drink driving.) You can’t argue with the numbers.

Well, maybe not. But on reading the Kilmer et al paper it turns out that the ‘12% drop’ isn’t anything like as simple as a comparison between year 1 and year 2 in area A, or for that matter between area A and area B in year 2. Although the initial five-county pilot of the scheme might have lent itself to the second approach, analysis was made more complicated by the rapid and uncontrolled adoption of the scheme in other counties. The writers’ approach was to make a virtue of necessity, taking arrest data from the 66 counties of South Dakota – all of which had adopted the scheme by the end of 2010 – and calculating the overall extent to which the arrest rate was affected by the introduction of the scheme. The scheme was defined as having been introduced at the point where the numbers in the scheme in a given month first equalled 25% of the county’s average DUI arrests. The much quoted 12% drop is actually an incident rate ratio of 0.883 (p < 0.05), derived from a Poisson regression of five parameters. The outcome (arrest rate) for a given county and time period is assumed to be given by the sum of α, the effects of the scheme itself; β, other known factors associated with the county; γ, “unobservable characteristics of each county that are fixed over time”; δ, “fixed effects for each month in the sample”; and ε, an undefined variable associated with both county and time period (and not referred to in the text).

More data is better than less; in principle a 0.883 regression coefficient is actually more reliable, and hence more informative, than an eyeball comparison of two figures showing a 12% drop. (If you find this counter-intuitive, join the club.) The authors’ approach is also an ingenious way to circumvent the muddying of the waters brought about by the wide adoption of the scheme. But concerns remain, particularly given the relative weakness of the results (the coefficients relating to repeat DUI and domestic violence arrests are the only programme-related results to rise to the level of p < 0.05). What difference might alternative estimates for ‘county’ and ‘month’ effects (β and δ) have made? How did the researchers arrive at values for the unobservable γ or the undefined ε – and what difference might they, in turn, have made? There are also some signs of data-mining and cherry-picking, both in the data presented and in its interpretation. The authors report “no statistically or substantively significant effect of [the programme] on first-time DUI arrests” and “suggestive evidence that it may have reduced reported traffic crashes involving men aged 18 to 40 years”. The coefficient for crashes involving 18- to 40-year-old males is 0.956 (95% CI 0.909-1.006); the figure for first-time DUI is 1.062 (0.955-1.181). One may be positive or null but is probably weakly negative; the other may be negative or null but is probably weakly positive; and neither of the two is statistically significant. In other words, the evidence for an effect on first-time DUI is no weaker than the crash-related evidence, but the effect in this case is positive – which is to say, on an uncharitable reading, this is “suggestive evidence” that the programme may have increased first-time DUI arrests. The single strongest result reported has nothing to do with the programme: according to the data, the Sturgis Rally (an annual motorcycle rally held in and around Sturgis SD) has an effect on repeat DUI arrests of 1.477 (1.330-1.641) and on crashes of 1.642 (1.293-2.086), in both cases with p < 0.001.

But let’s assume for the sake of argument that the figures are good. Let’s take it as given that Kilmer et al have shown that the effect of introducing twice-daily-breathalyser-monitored sobriety in county X in month m will be that county X‘s repeat DUI arrest figures, averaged over months m+1…m+n, are 12% lower than they were when averaged over months m-1…mn. Now what? Or rather, now why? What’s the mechanism? I ask this not because failure to say how the effect occurred would call the effect into question – it wouldn’t – but because Kilmer et al do seem to have a specific mechanism in mind. Consider the threshold used to define when the programme had been implemented – when the numbers in the scheme in a given month equalled 25% of the county’s average monthly DUI arrests – and the alternative threshold suggested later in the paper, five scheme participants for every 10,000 population. South Dakota has a population of 825,000, of whom 17,000 were on the programme between 2005 and 2010. This is over 2% of the entire population, and a considerably higher proportion of the population typically involved in DUI offences; Kilmer et al note that, in some counties, more than 10% of men aged between 18 and 40 participated in the programme at some point. Lastly, consider the expansion of the programme following the passage in 2007 of South Dakota House Bill 1072:

The unanimous passage of House Bill 1072 dramatically expanded the 24/7 program. The bill went into effect July 1, 2007, and provided funds to counties that wanted to adopt the program. The new law allowed judges to order anyone they believed had an alcohol problem, pre- or post-conviction, to participate in the program. The law also changed rules for those who lost their license for a repeat DUI offense. It had previously been possible for some of these individuals to receive a permit to drive only to and from work, but these permits were now conditional on 24/7 participation.

So participation could be ordered by a judge without the individual involved being convicted of anything. Moreover, continuing participation could be made a condition for holding a (restricted) driving licence, making participation in the programme more or less a life sentence.

On first reading of the Kilmer et al paper I wondered if a measure for long-term rehabilitation and reform was being assumed to be successful on the basis of a confusion between outcome effects and programme effects. In other words, I wondered if the reduction in repeat DUI arrests might not be a sign of problem drinkers taking the (enforced) opportunity to turn their life around – as in Orr‘s optimistic account – but merely of drinking being temporarily suppressed by the imposition of a stressful and demeaning twice-daily reporting requirement. On re-reading it, I’m not convinced that the authors are even thinking in terms of outcome effects. Got an alcohol problem? Right – you’re on the programme; no drinking until I say so. You’ll get off the programme eventually; if you start causing trouble then, guess what – you’re back on the programme. No alcohol problem now!

5. As sloshed as Schlegel

In technical terms, I think the individual test data can’t possibly show what it appears to show, and hence that it doesn’t give reliable guidance for the London pilot. Analytically, I think the programme as described by Kilmer et al is one of mass behaviour modification rather than criminal justice – the idea seems to be, not to use the programme to help former offenders reform, but to put as many people as necessary through the programme for as long as necessary to bring crime down. This leads into my philosophical concerns about the programme – concerns which remain even if we assume the validity of the test data and the crime drop figures.

Humphreys describes the scheme as delivering “swift, certain and fair sanctions for drinking”; Kilmer and colleagues describe the South Dakota programme as combining “frequent monitoring with swift, certain and modest sanctions for violations”. Swift and certain: you test negative, you’re off to the cells, no ifs, no buts, no phone call, no duty solicitor. What’s the problem? Maybe there isn’t a problem at all – maybe the problem’s with our way of thinking, or the presuppositions of our system?

The key principle in disposals like this is certainty: offenders need to know that a breach will result in instant and decisive penalty. Our criminal justice system resists such practice. The pilot’s weakness is that it could take weeks for action to be brought against offenders who drink while tagged. If an offender breaches the sobriety order, they will first have to be returned to court where further sanctions can be imposed. Imprisonment is only likely to result from persistent non-compliance. This isn’t swift and sure justice, but neither is it the Mayor’s fault – it’s a fundamental weakness in our system of probation which needs fixing.

Opinion polling for the GLA in 2011 found that sobriety orders were popular with the public (well over two thirds supported the idea). Doubtless some will disagree. I recall the horror of a prominent politician, partial to a shandy, on being told that an electronic device might be used to monitor someone’s alcohol consumption. And I wonder how long it will be before the civil libertarians complain that sobriety tags are an egregious breach of human rights…

Thus Nick Herbert MP (Con). (It’s interesting, in passing, to see the reference to ensuring an “instant and decisive penalty”, emphasis added; Humphreys and Kilmer et al both stressed that the near-automatic sanctions for non-compliance were modest.) I think this line of argument needs to be resisted. It’s fundamental, not to “our criminal justice system” but to the rule of law, that the law governs us as free individuals. The law is a system of rules which we can freely choose to follow; when we choose to obey the law (as we generally do), it is because we know that everyone is being asked to obey the same law, and because freedom and fairness can be maximised by everyone choosing to live by the same rules. We obey the law because the law is worth obeying, not because we have personally been commanded to do certain things – still less because we have been threatened with adverse consequences if we do not. To break the law is also a free choice, and one which may be made on rationally justifiable grounds; alternatively, the choice of breaking the law may be made under conditions which (a rational observer would conclude) left no alternative course of action. To be put on trial is thus to enter a field of judgment: are we guilty of committing a criminal offence or can our action be justified? To be put on trial is precisely to have our actions ‘tried’ (tested) against the standard of the law, and the possibility always exists – however remote it may be in the day-to-day operation of the courts – that it will be the law that blinks. However clear and unambiguous the law may appear to be, the outcome of a trial is never certain; a judge’s guidance may be overruled by a jury verdict; the law itself may be amended by an appeal court judgment. At its best, the criminal justice system respects the freedom and rationality of the law-breaker as well as the law-abiding citizen.

To say that we are governed by law, then, is to say two things. The first is that the law is a system of rules with certain characteristics – universality, comprehensibility, followability – which make it possible for each one of us to arrange our lives so that we obey it: the law respects our freedom. The second is that those who break the law are not only brought to account but allowed to put their case, protected by certain fundamental safeguards – the rules of procedural justice – which exist to ensure that nobody is unjustly criminalised. The law respects us as free and rational citizens, when we break it as well as when we obey it.

This scheme is unlawlike twice over. On one hand, the idea of “fair sanctions for drinking” tends to suggest that drinking should be sanctioned; I wouldn’t have thought this was a route the USA wanted to go down, again. At best it suggests that drinking should be banned for certain, arbitrarily chosen people – as unlawlike a proposal as you could wish for, effectively substituting the rule of individual law-enforcers for the rule of law. On the other, contra Herbert, closing the gap between infraction and sanction is not “swift and sure justice”, or not for any meaning of the word ‘justice’ associated with the rule of law. Any kind of automaticity in declaring somebody a law-breaker – including but not limited to the technological automation delivered by alcohol shackles – subjects the law-breaker to the law, without defence or excuse, in a way that is corrosive to respect for the law (which we are presumably asking those law-breakers to carry on obeying in other areas of their life).

Perhaps the most telling part of Herbert’s comment is his sneering reference to a critical politician being “partial to a shandy”. Herbert himself may be a teetotaller, but he must be aware that the great majority of his fellow-citizens are, in fact, “partial to a shandy” – and as such might have well-grounded concerns in response to the development of technology that enforces total abstention. The unstated minor premise, underlying that two-thirds vote as well as Herbert’s complacency, is that alcohol shackles will never be a threat to us. Herbert’s confident that these measures will only be applied to them, that unruly minority whose behaviour needs controlling – and that we can trust law-enforcers to identify the people to control and modify their behaviour in the right way. (Deborah Orr’s message is much the same, dressed in more liberal language.)

But this isn’t the rule of law. It’s using the law, but using it as an instrument for controlling a deviant population (in this case problem drinkers). It’s using it – in Hegel’s image – like a man raising a stick to a dog.

Feuerbach bases his theory of punishment on threat and thinks that if anyone commits a crime despite the threat, punishment must follow because the criminal was aware of it beforehand. But what about the justification of the threat? A threat presupposes that a man is not free, and its aim is to coerce him by the idea of an evil. But right and justice must have their seat in freedom and the will, not in the lack of freedom on which a threat turns. To base a justification of punishment on threat is to liken it to the act of a man who lifts his stick to a dog. It is to treat a man like a dog instead of with the freedom and respect due to him as a man. But a threat, which after all may rouse a man to demonstrate his freedom in spite of it, discards justice altogether.
Hegel‘s Philosophy of Right, thesis 99.

Hart and natural law: the three concessions reviewed

The story so far. Herbert Hart was one of the founding fathers of contemporary legal positivism – the doctrine that laws are created through a specialised social practice of setting down (or positing) enforceable norms for behaviour, and are known and recognised as such by their grounding in that social practice. Sociologically speaking, this may sound uncontentious; the key contribution of legal positivism is the lack of any further stipulations as to what the law, inherently, is or what it is (necessarily) for. In any law-governed society (legal positivism argues) there is a system of laws which are recognised as such and an apparatus of roles and procedures for making and amending those laws; and (as Private Eye would put it), er, that’s it. To say that the legal system of Nazi Germany was a bad legal system – on the basis that it facilitated what are almost universally held to be evil and unjust outcomes – makes no more sense than to say that the language spoken by the Nazis was a bad form of German.

Advocates of ‘natural law’ – the theory that there are coherent and discoverable pre- or extra-legal principles, generally based on morality, by which positive law can be judged – have held that this picture needs to be qualified in different ways. In writings from 1958 and 1961, Hart singled out three ways of arguing the connection between natural and moral criteria, on one hand, and positive law on the other, and made concessions – ranging from major to very minor indeed – to each of them.

Firstly, the Substantive Natural Law position holds that any imaginable legal system – or, perhaps, any imaginable adequate legal system; any legal system functioning as a legal system – will have a certain minimum content: there are certain things that ‘the law’ has always forbidden and always will forbid, murder being the most obvious example. Hart gave this argument extended consideration and was willing to concede – if the minimum content was defined sparingly enough – that it might be correct. However, Hart was at pains to point out that the minimum content itself derived from the brute facts of human existence rather than from morality. Hart’s definition of the minimum content of law, in terms of obligatory forbearance from exploiting fundamental universal vulnerabilities, is compatible with Kelsen’s austere severance of legal from moral obligations: one could argue, following Kelsen, that the moral obligation not to kill and the legal prohibition of homicide are not only two separate norms, but elements of two distinct systems of norms, each of which is offered as a solution to the problems of coexistence in society. Natural law in this light is ‘natural’ in a Hobbesian sense – it is the law that elevates above the state of nature for the sake of survival (rather than, for instance, underpinning the Aristotelian conditions of human flourishing). Nor is there any inherent connection between minimal substantive natural law and justice. A universal and impartial breach of natural law would not be unjust; in the case of any more selective breach, the injustice would derive from the selectivity.

The Procedural Natural Justice position, secondly, holds that there is justice in the correct administration of the law, irrespective of the justice of the outcomes or of the law itself – or, conversely, that there is injustice in the maladministration of the law, irrespective (again) of our assessment of the law itself or of the outcomes reached. There is – by design – no connection between our assessment of natural justice in the administration of the law and the content of the law, natural or otherwise. In 1958 Hart referred to rule-based impartiality as ‘natural procedural justice’ and suggested that this was a moral virtue: “there is, in the very notion of law consisting of general rules, something which prevents us from treating it as if morally it is utterly neutral, without any necessary contact with moral principles”. In The Concept of Law he wrote, more guardedly, of “apply[ing] a law justly” and referred to procedures to ensure impartiality as “requirements of justice”. In other words, Hart’s 1961 formulation withdraws his earlier concession to the ‘procedural natural justice’ position, leaving open two alternative lines of argument: either justice in this sense is a term of art – a technical term for the appropriate administration of those things called laws – or it is a virtue in its own right. This may be a distinction that makes no difference, however: in the second case justice is not conceived as a moral virtue.

Lastly, the (Natural) Morality of Law position suggests that the law as a system – the properties of the laws themselves as well as the way in which they are administered – can be critiqued on moral grounds. The argument here is not merely that it’s a bad thing for laws to be confusingly worded or badly implemented, although it draws strength from that intuition. Rather, the argument is that subjecting society to governance by law is itself a morally good enterprise, and that the particular moral virtues which it embodies can be found – or found to be lacking – in particular legal systems, in individual laws and in acts of law-making. A key concept in this respect is followability: the law is taken to be a system of norms which addresses its subjects as free, rational and responsible for their own actions – and which is the less ‘law-like’ the less effectively it does so (through the use of laws which are unknowable, incomprehensible, impossible to comply with, capriciously applied, etc).

Hart did not address this argument in his 1958 paper. In The Concept of Law he considered it as a technical argument, on the basis that any system of ‘[social] control by rule’ needs to have certain characteristics – ‘[the rules] must be intelligible and within the capacity of most to obey… [so that], for the most part, those who are eventually punished for breach of the rules will have had the ability and opportunity to obey’. Might these requirements be taken as rising to the level of morality? Hart’s response is brief and devastating: “if this is what the necessary connection of law and morality means, we may accept it. It is unfortunately compatible with very great iniquity.” In other words, the fact (as Hart saw it) that unjust and immoral outcomes are entirely compatible with a pursuit of a ‘followable’ system of laws makes the idea of ‘followability’ as a virtue irrelevant or frivolous.

To sum up: Hart concedes the argument for Substantive Natural Law, but only after narrowing its scope to the point of guaranteeing mere survival rather than promoting human flourishing. In 1958 he concedes the argument for Procedural Natural Justice; in 1961, however, he situates procedural justice either as technical excellence in the administration of justice or as a (non-morality-based) virtue in its own right. His position on the Morality of Law is more complex: he argues that the merits described thereby are purely the technical merits of a functioning system of rules, but leaves open the possibility that they can be called a morality – subject to the withering proviso that such a morality, and such a necessary connection between law and morality, appears to have no actual effect on the law. In other words, Hart does not challenge the logic of Fuller’s argument but questions whether it is necessary to analyse the law in the real world, with the strong presumption that it is not.

As we have seen, David Lyons’s papers address the second and third of these concessions, from a position which can perhaps best be described as a radically sceptical formalism. Lyons’s key move – made in both papers – is the technical argument, which he raises to a higher level of abstraction than had Hart: he grants that certain features might represent a defect in the law (or its effective administration), but denies that this necessarily tells us anything about justice.

On Procedural Natural Justice, Lyons’s bracingly sceptical denial that there was any moral virtue in proceeding by rule or in treating like cases alike would certainly have appealed to Hart; a post-Lyons revision of the argument in The Concept of Law might have stressed the idea of procedural justice as a technical merit of a well-administered legal system, to the exclusion of granting it even nominal consideration as a form of justice. However, I’m not convinced that this move is one Hart would have wanted to make. Lyons’s central argument can be summed up in a question posed rhetorically in his 1973 paper: “Why should we suppose that the pattern of treatment prescribed by the law is the same as (or even compatible with) that prescribed by any principle of justice?” As I noted above, considerations of justice come into play in some fields but not others. If we, as a kind of thought-experiment, think of law as a field in which justice may not be involved, there is then no particular reason to think of the administration of law in terms of justice of outcome, or by extension to think of the process of the administration of law in terms of procedural justice. But I think, for Hart, that would have been a formalist move too far. I do not think Hart would have found it necessary or useful to drive a wedge, as Lyons does, between the concepts of ‘law’ and ‘justice’, both of which Hart saw as human, social, culture-bound concepts. While Hart promoted the classification of merits in the administration of the law in neutral, technical terms, I don’t think anything turned for him on not calling these merits principles of justice. Ironically, I think he would have sympathised with Lyons’s devalorised version of rule-following as a way of describing the administration of the law, but rejected as idealism Lyons’s unqualified references to justice as a virtue.

Lyons shares Hart’s lack of enthusiasm for the Morality of Law but criticises it from a different angle. While an inadequately followable law can reasonably be seen as defective, Lyons argues, additional information would be required in order to call this defect an injustice. Hart’s position, by comparison, is both weaker and stronger: weaker, in that he takes no definite position on whether Fuller’s ‘morality of law’ is a moral framework or merely a set of technical considerations; stronger, in that he effectively dismisses the debate as not worth having.

Lyons’s argument, like his position on formal justice, is grounded in his scepticism about the relationship between law and justice. This (as I have argued in both instances) over-reads the moral neutrality of well-formed rules and rule-following. Certainly rules may be contradictory or incomprehensible without any injustice being done, just as rules can be followed or broken without moral implications. However, in social practices where distributive or allocative justice is at stake – where a single standard is being applied to multiple individuals, with potential consequences affecting them – procedural justice is necessarily engaged, and rule-writing and rule-following become questions of justice. This is the case with regard both to practices which may affect the outcome and (perhaps less obviously) practices which cannot – if only because there is no way to be sure, either during or after the process, that any discriminatory practice can be ruled out as not affecting the outcome. To be singled out for special treatment (good or bad) in the course of a court case – even if one has a well-founded confidence in one’s innocence and the fairness of the court – is necessarily, and of itself, to be a party to (procedural) injustice. Similarly, if the state asks citizens to obey a law and obedience is impossible – or only intermittently possible, or unascertainable – each citizen is placed in an anomalous position, and one of unjust disadvantage relative to the large number of citizens who obey the law (or who may be obeying the law, or who may be treated as if they are).

However, I don’t think Hart’s position on the morality of law would have been affected either by Lyons’s sceptical argument or by my response. His position on the virtues of a good legal system, as identified by Fuller, is that these are indeed virtues of a good legal system, in the same sense that sharpness is a virtue of a good knife and undetectability is a virtue of a good poison. He might even have granted the point that Lyons denies – that procedural virtues in the process of making law and administering justice can be considered, by extension, as forms of procedural justice. He might have been resistant to this line of thinking (his references to it in The Concept of Law are guarded at best), but I think fundamentally he would have thought it to be beside the point – neither true nor importantly false, merely irrelevant.

Lyons draws a line – I think incorrectly – between ‘law’ in the world and ‘justice’ in the heaven of ideas. The line Hart draws encompasses law and justice, both located in the world, both variable from one system to another, both amenable to more or less technical assessment. Arguably even morality is inside the line – it too exists in the world and can be invoked (although it need not be) in the workings of the law, as a source of principles and as a means of assessing outcomes. Outside the line are the virtue of procedural justice and the morality of well-written law – and they’re outside not because Hart situated them in a Platonic realm of concepts but because he was indifferent to whether they existed or not; his model had no need for them. The debate between Hart and Fuller was not between two rival framings of the law, but between an advocate of one framing and someone who believed that it was irrelevant – that nothing turned on whether it was used or not. This may account for the occasional asperity of the debate between Hart’s and Fuller’s partisans. Hart’s famous formulation that the morality of law was “compatible with very great iniquity” is, logically, a challenge to the position that it is impossible for an iniquitous regime to have a followable system of laws – this being the only position which would have made it necessary to incorporate the inner morality of law into his thinking. However, the position advanced by Fuller and his successors is merely that an entirely followable system of laws (whatever the laws’ content in all other respects) is more just than the same system would be if it were less followable. This implies that an iniquitous regime, with no respect for its subjects, will have no reason to avoid introducing unfollowable laws; this in turn suggests that it is unlikely that an established iniquitous regime will not have taken the opportunity to introduce unfollowable laws. However, this is not to say that a followable system of laws is not “compatible with very great iniquity”; at its strongest, Fuller’s argument leaves Hart’s position untouched. Hart’s challenge is unanswerable; if Fuller’s model is to be used, other justifications are needed for doing so.

One final point, before I conclude this series of posts by looking at other writers’ comments on these issues. A striking virtue of Fuller’s argument is that it considers legal systems as a whole, arguing that they may exhibit the same merits and defects in many different ways. An individual law may be unfollowable for reasons of content, structure, administration or enforcement: because it clearly requires the impossible, or because it is drafted so badly as to be incomprehensible, or because it is liable to be changed without warning, or because it is only capriciously enforced. With this in mind, it is worth recalling the first aspect of the minimum content of natural law – the substantive element – and asking whether it may have any bearing on the other two, wholly or partly procedural, elements. If laws – some laws – are required in any conceivable human society, for the sake of bare collective survival, does this tell us something about the nature of law? Might it be appropriate – natural, indeed – to take as a starting point the assumptions that (contra Lyons) law does in fact embody the value of justice in society, and that (contra Hart) this value is of supreme moral importance?

Two counter-arguments can be envisaged, one minimal and one maximal. On one hand, it could be argued that justice is comparative and distributive: when an outcome is applied evenhandedly to the whole of a society, justice has nothing to say about what that outcome is. It is unjust for one person to be killed; it cannot be unjust for an entire society to perish. Consequently, although the minimal content of substantive natural law embodies the network of collective forbearances required to keep society in existence, this is not a goal of justice. An answer to this is that what the minimum framework of forbearances wards off is not instantaneous extinction but a lawless chaos, in which many injustices would in fact be done: the survival of society is not a goal of justice but a condition of justice, or of the prevention of injustice. On the other hand, it could be argued that justice is – as Lyons suggests – something we know rather little about: from a Marxist point of view, for example, a genuinely just settlement might involve the withering away of the state and the communalisation of private property. The answer to this is that justice is scalar rather than binary: an innocent prisoner detained without trial is a victim of injustice, but she may still become a victim of further injustice (by being singled out for mistreatment, isolation etc). Conversely, a structurally unjust society (e.g. one dominated by a single low-wage employer) may become more just without changing that fundamental condition (e.g. by the introduction of more effective factory regulation).

Let us say, then, that the survival of a functioning society is a precondition of justice, and that the law – as well as being a means to that survival – embodies, however imperfectly, the pre-legal standard and value of justice. Can we then ground Lyons’s scepticism about the relationship between law and justice – or Hart’s bracketing of the inherent virtues of law, so as to discuss laws alongside the rules of games? Does Hart’s “minimum content of natural law” in fact lead us back to natural law theory?

Hart and natural law: Lyons on Fuller

David Lyons’s 1971 paper “The Internal Morality of Law” is an interesting critical review of Fuller’s theory of the same name. Lyons sets out his sceptical stall with two references to claims made by Fuller:

He says that public officials, those who make and enforce the law, are committed to ideals of legal excellence – eight ideals concerning not the substance of the law but whether its requirements can be understood, followed, and met, and how they are to be applied. There ought to be general rules, first of all, and these ought to be clear, consistent, publicized, prospective, satisfiable, constant, and “scrupulously” enforced.

It is not entirely clear, however, why we should suppose that there is such a commitment.

And:

Fuller also writes: “To embark on the enterprise of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults”. This passage is suggestive, though it hardly solves our problem. Why should we say there is this commitment? And what has it got to do with justice?

Lyons cites Fuller’s list of

eight kinds of legal defect corresponding to the eight kinds of legal excellence … a failure to make general rules; rules that cannot be understood, that are inconsistent, not made known to the parties affected, retroactive, or frequently changed; rules that “require conduct beyond the power of the affected party”; and “a failure of congruence between the rules as announced and their actual administration”.

He notes that this last defect can be seen in terms of the failure to apply the law “faithfully, equally, uniformly and impartially”, and hence that the eighth of Fuller’s types of legal excellence corresponds to the supposed virtue of procedural or formal justice (Lyons’s subsequent comments on this were discussed in the previous post). However, this can also be seen in terms of ‘followability’, which is the key value undermined by the other seven defects: just as a law is impossible to follow if it is incomprehensible, if it varies unpredictably or if it sets conditions which cannot be satisfied, it is not in practice followable if it is applied intermittently and capriciously. To say that laws (or systems of law) are followable is to say that they respect their subjects, or at least offer them a specific kind of respect: they address their subjects as free and responsible agents capable of rationally choosing to follow rules. To the extent that they do this (as Fuller argues that they should), they will have the qualities Fuller identifies as ideals of legal excellence.

But how would this view of the law be grounded by anyone who does not necessarily share Fuller’s world view? Lyons concedes that the idea of followability is fundamental to the nature of laws as a means of guiding behaviour:

part of the very concept of a legal requirement is, not that it actually is followable, but that it is supposed to be and may be presumed to be. The idea of law includes that of regulating behaviour in a certain way – by setting standards that people are to follow. And this idea is incorporated in the notion of a legal requirement. If so, from the notion of a legal requirement it might seem to follow that, to the degree a putative legal requirement cannot be used by one to whom it applies to guide his own behaviour, that requirement is defective.

But we’re not out of the woods. We may have identified good reasons for calling unfollowable requirements defective, but “to say this is not to make a moral judgment” (emphasis added). As with the question of whether there is a procedural morality of rule-following, the morality of setting followable requirements does not follow from the fact that they are preferable; the superiority of followable requirements may be a purely technical question.

Can Fuller’s argument be grounded morally? Lyons suggests one solution, noting that “[w]hen a person is penalized for failing to meet an unfollowable requirement, he is treated unjustly.” The practice of penalising individuals for failure to follow requirements is one which engages questions of justice, inasmuch as standards are being applied to multiple people’s behaviour and consequences imposed on those people individually: as soon as two people are penalised for failing to follow a rule, the possibility exists that one of the two is being penalised unjustly. (Whether an injustice can be done if no comparisons can be made – if a rule is only ever applied to one person, or if everyone is uniformly held to have breached the rule – is an interesting philosophical question, although it’s one that can probably be shelved for lack of real-world examples.)

However, Lyons does not find this persuasive:

If we call the rules under which [individuals] may be penalized unjust, that is because individuals are, or are likely to be, penalized unjustly under them. But this kind of treatment is not essential to or inevitable in a legal system – not even one that contains defective requirements … From the fact that a legal system contains rules or requirements that cannot be understood or followed or met, it does not follow that anyone shall be penalized under them or even that the system requires or allows such treatment

He goes on to consider a (hypothetical) community of utopian socialists, each of whom is strongly committed to the success of the community and highly averse to the use of sanctions, and each of whom knows these facts to be true of all the others. Such a community, Lyons argues, would be guided by laws but without any imposition of sanctions; hence any unfollowable laws would not result in injustice, since their inevitable breach would not lead to anyone being penalised. The argument is ingenious but ultimately rests on a kind of idealism – as if to say that the courts and the institutions of punishment in accordance with law are social practices, but the law itself is an immaterial essence. If we see the law – “the enterprise of subjecting human conduct to the governance of rules”, in Fuller’s terms – as a social practice, the distinction disappears: to the extent that legal standards are standards applied to multiple people’s behaviour in order to judge them (whatever the consequences may or may not be), to that extent justice is engaged in the application of the law.

As in his paper on procedural justice, Lyons is keen to dissociate the law from justice; he argues that

the standards that may seem implicit in the law, conceived at least in part as a system of guidelines for human behaviour, would seem to say nothing about what counts as an injustice. They tell us only that a certain kind of requirement or rule is defective – and only because it is not followable. But this does not tell us that the application of such a rule would be unjust.

And:

we cannot learn what use of sanctions is (or would be) unjust simply by understanding what the law is. We need to know what constitutes an injustice. And so far, our understanding of what the law is tells us nothing about that.

On the contrary – Fuller might have answered – while “our understanding of what the law is” may tell us nothing about injustice, our ordinary-language understanding of injustice tells us that the imposition of laws which could not be followed would constitute an injustice. The question of justice is engaged by the process of ascribing, to some individuals but not others, the social status of having broken a law; break the link between this status and those individuals’ past freely-chosen actions, and injustice necessarily results.

It may be argued – and Lyons would certainly argue – that this conclusion proves more than it set out to, and implicates substantial parts of the English criminal law in the production of injustice (retroactive legislation, reverse onus provisions, strict liability offences). At the moment I’m inclined to think that a feature rather than a bug.

Lies, damned lies and the BBC News

I’ve always thought the BBC News was reasonably trustworthy. Very establishment-oriented, very quick to condemn disorder in any form, very slow to condemn the police or politicians (unless a readily identifiable bad apple can be found), basically rather right-wing, unthinkingly dismissive of the radical Left and rather too fond of displaying attacks from the Right as evidence that they have achieved ‘balance’. For all that, I’ve always thought they were basically reliable on matters of fact, not to mention on fundamental issues like the importance of not killing, not lying and taking the law seriously.

My confidence has been dented by some recent stories. I was disturbed by the BBC’s coverage of the ‘Trojan Horse’ affair, parts of which didn’t so much skirt the ‘anti-extremist’ rabbit-hole as jump straight down it: “where does multi-culturalism end and extremism begin?” we were asked one evening, by the newsreader himself. (So, about these darkies – can we trust them as far as we can throw them?) Parts of the Gaza coverage have also been appalling. But it was last night’s news that really shook me – the story on restricting out-of-work benefits to EU migrants, specifically.

So here’s the story from PM, broadcast at 17.00 on 29/7/2014.

The government is defending new measures to restrict out-of-work benefits such as Job Seeker’s Allowance to EU migrants, saying they’ll save half a billion pounds over the next five years. EU claimants will receive only three months of payments unless there’s a very clear prospect of them getting a job.

On the 6.00 News (18.00, 29/7/2014), Norman Smith covered the politics of the announcement, and when I say ‘politics’…

Today’s curbs on so-called benefit tourism follow a string of similar announcements aimed at ending what the Prime Minister calls the “magnetic pull” of the British benefits system – the hope that barring EU migrants from claiming support after three months will deter many from coming here in the first place. But the move is also designed to reassure voters that Mr Cameron is serious about tackling immigration. … UKIP meanwhile, who have made immigration central to their appeal, mocked today’s announcement, insisting that under Mr Cameron immigrants would continue (in their words) to flood into Britain … The European Commission have also stepped into the fray, dismissing ministers’ concerns over benefit tourism and announcing a review into the legality of the government’s benefit changes. All of which is most unlikely to trouble Mr Cameron – provided today’s announcement helps convince voters he’s at least trying to address their concerns over immigration.

First off, there is nothing principled or even rational here. Smith distinguishes between the actual effect of the policy and its presentational impact, but the only effect cited – Cameron’s ‘hope’ – is that fewer people from other parts of the EU end up coming to Britain. Why is that a good idea? We’re not told; we don’t need to be told. But as well as this hoped-for reduction in the numbers of people speaking English with a foreign accent (and wasn’t there something about saving half a billion pounds earlier on?), the policy is designed to ‘reassure voters’ that the government is ‘trying to address their concerns’. By the end of the piece this has become the main purpose of the announcement: it’s not that the government hates foreigners, you understand, it’s just that lots of people out there do hate foreigners and the government wants their votes. As for the European Commission, we know that our Prime Minister doesn’t listen to them! (On a side note, the relentless personalisation of this story is depressing in itself – when was David Cameron elected president?) Those Europeans – they can talk about how there’s no evidence, and how it might be against the law or something, but why should anyone care what they say? Bunch of foreigners!

So there’s xenophobia; cynical attempts to pander to xenophobia, for no other reason than that somebody else is doing it; the design of government policy around vote-chasing, irrespective of whether it’s needed or what effect it will have; contempt for international obligations; contempt for evidence; contempt for the rule of law. This is disgusting stuff; to hear the BBC passing it on as political normality is depressing and, frankly, alarming.

But all is not lost. The programme included a second report on the same policy by Mark Easton, who seems to have more traditional ideas about how journalism works:

When the BBC asked how many migrants would be affected by the proposed changes to eligibility, we were told ministers simply didn’t know. There are no figures for EU migrants claiming Job Seeker’s Allowance for more than three months. The government blames the previous Labour administration for not keeping proper records. Our analysis suggests the number affected by the new measures could be as low as a few thousand across the whole country. … [The Prime Minister] told reporters today’s changes would save the British taxpayer half a billion pounds over the next five years. However, later Downing Street explained he was referring to estimates for how much might be saved by existing immigration controls. As we now know, they can’t tell how much the policy might save, because they admit they don’t have the evidence that would tell them.

Wait a minute – that’s a story right there. The Prime Minister announced the reduction of entitlement to out-of-work benefits from six to three months, and then he said – it was quoted all over the place – “Our changes today will save the British taxpayer half a billion pounds over the next five years”. None of your ‘existing immigration controls’ – our changes today. That claim was false – or speculative at best – and it’s been retracted, after the BBC did the numbers and asked for clarification. That’s the headline, surely. At the very least it’s a proud day for BBC News: “Government withdraws misleading claims under pressure from BBC”. This could have legs: “Furious Cameron demands source of inaccurate immigration figures”; “Cameron under pressure as ‘misleading’ immigration claims unravel”; “Fears for coalition as Lib Dems challenge immigration policy” (they haven’t yet, but get this out there and they will)…

At the very least, the story has changed: it’s no longer a story about how your government is going to save money and address your fears about all those nasty immigrants (with a nod and a wink to the grown-ups from Norman Smith: OK, so it’s all just scaremongering, but that’s politics for you!) It’s now a story about how the government has put forward a very controversial and possibly illegal policy, with the specific aim of making one group of very poor people even poorer, and first claimed to have evidence to support it, then admitted that there is no evidence.

News headlines, Radio 4, 19.00, 29/7/2014

The government is defending new measures to restrict out-of-work benefits such as Job Seeker’s Allowance to EU migrants, saying they’ll save half a billion pounds over the next five years.

Unless they use pre-recorded news headline segments, by the time that script was read out, the government wasn’t ‘saying’ that. The announcer himself had probably heard the retraction on the 6.00 News. The only reason for leaving that claim unchallenged is to save the government’s face – and that’s the last thing the BBC News should be doing, least of all when the loss of face is related to a baseless, evidenceless, cynical, hateful and illegal exercise in chasing votes and polluting the public discourse.

BBC News: shame on you.

Hart and natural law: Lyons on formal justice

David Lyons’s 1973 paper “On Formal Justice” begins unpromisingly:

A number of legal and political theorists have suggested that public officials who fail to act within the law that they administer act unjustly. This does not mean that injustice is always likely to be done merely because it often happens to be done when officials depart from the law. Some writers have held that injustice is done whenever an official fails to act within the law, regardless of the circumstances. I shall call this type of view “formal justice.”

This is odd, to say the least, as it implies that (formal) injustice is done when a judge breaks a speed limit but not when she decides two similar cases in wildly different ways. In point of fact, the focus of the paper as a whole is unclear; broad formulations such as ‘official deviation from the law’ are frequently used, implying a contrast between official obedience to the law and actual law-breaking, but so too are narrower formulations such as ‘adherence to existing legal rules’. This second concept – implying a rule-driven approach to applying the law – seems to be the focus here:

Such a view may be considered “formalistic” because it places value, in the name of justice, on adherence to existing legal rules without regard to “substantive” factors such as their contents, the consequences of obeying them, their defects or virtues, or any other circumstances of their application. The only condition imposed is that an official must by law follow the rule in his official capacity. Furthermore, those who attempt to account for this view believe that the requirements of formal justice rest directly on such notions as “proceeding by rule” or “treating like cases alike,” which are thought to be at the heart of our shared concept of justice. The basic requirements of formal justice are thus supposed to be exempt from the controversy over substantive principles of justice and their possible justification.

It is also the focus of the third section of the paper, on Hart. In The Concept of Law, Lyons argues, Hart offers three points in support of ideas of administrative justice. (As we have seen, all three of these had been made in less qualified and more moralised form in Hart’s 1958 paper.)

The first bases administrative justice on the precept “treat like cases alike”; the second grounds it on a notion with which the first is often confused, namely, following a rule; the third is rooted in the idea of impartially applying the law to particular cases.

Should we treat like cases alike? Perhaps so, but what does it have to do with justice? Lyons argues that treating like cases alike so has no intrinsic relationship with justice as an outcome – given that the same principle is involved in duties such as promise-keeping and helping those in need – but this is either irrelevant or an equivocation: the point is not that this principle is conducive to justice of outcome but that it is (perhaps) a form of procedural justice, which can be used equally well to measure how justly the law is applied and how justly we carry out our other social obligations. He also points out (as Hart had done) that no two cases are ‘alike’ or ‘unlike’ in and of themselves: two cases can only be judged to be alike by the application of a given set of criteria. In the case of the law, Hart had argued, the criteria to be applied are precisely the rules of the law. Hence:

From the premises that justice fundamentally requires a uniform treatment of cases and that the law prescribes one way of uniformly dealing with them, we are asked to conclude that justice in the administration of the law requires officials to follow the law. But this argument begs the question at issue, which is whether the pattern of treatment prescribed by law is identical (or even compatible) with the pattern required by justice. Once we realize that the justice of a law is not determined by the law, or in other words that the resemblances and differences between persons, acts, and circumstances which the law tells us to consider are not necessarily the ones that justice says we may consider, the error of the formalist becomes obvious.

Lyons continues: “Why should we suppose that the pattern of treatment prescribed by the law is the same as (or even compatible with) that prescribed by any principle of justice?” (emphasis in original). The only argument he offers in favour of doing so is the hypothetical argument that following the law might be the only way of achieving the “uniform treatment of cases” required by justice – but, of course, this is clearly not the case. Acquitting the defendants who offer a bribe and convicting everyone else is treating like cases alike.

Treating like cases alike – where likeness is given by the criteria of the law – is dealing with them uniformly. But, as the bribery example demonstrates, dealing with cases uniformly is not justice unless the criteria used to define like cases are themselves just – and in the case of the law, we have no necessary reason to assume this. Is this a valid argument? It’s certainly persuasive, but I suspect it rests on a blurring of different senses of the word ‘just’ – and an undervaluation of the procedural nature of the justice being analysed. Suppose that, as the model of formal justice requires, we bracket out the justice of the laws and of the outcome of legal decisions; to make it simpler, suppose that we’re dealing exclusively with unjust laws and decisions with bad and unjust outcomes. Let’s say that having a surname beginning with Q has been declared a capital crime.  Alternatively, suppose that we’re dealing exclusively with correct and welcome decisions on just laws: acquittals of falsely-accused murder suspects following an inquiry into police corruption, say. In the second case, we know that the law is just and that a just decision is, at least, highly likely; in the first, we know that the criteria given by the law are not just, and that the possibility of a just outcome is vanishingly small. Can we still speak of injustice being done by a capriciously varied application of the law – perhaps, if the judge delays three days before passing sentence, rules on a second case in five minutes flat and reads the third sentence in a silly voice? This, surely, would be a violation of fair official treatment of which even the acquitted defendants could complain, and which would make the position of the defendants in the nightmare scenario still worse. (Should this experience of stress and uncertainty be considered part of the ‘outcome’ of the case? Surely not – this would collapse a clear distinction (between outcome and procedure) for no real gain.) There seems no reason not to think in terms of procedural justice as a criterion for the application of the law – or, perhaps more precisely, for the process of the application of the law.

Lyons’s second argument addresses the related concept of rule-following, which – as we have seen – is generally required in order to make sense of the idea of treating like cases alike. (Lyons notes that judges can “devis[e] a uniform treatment of cases even when no relevant rules exist, for example, by comparing current cases among themselves”, but this puts too much weight on the need for rules to be stated formally and explicitly.) On rule-following and justice, Lyons is, again, sceptical:

The argument turns entirely on the notion of applying a rule to particular cases; it contains no further restrictions. If the result were a principle of justice, then any deviation from any rule that one is supposed to apply would be, in itself, an unjust act. Nothing restricts this mode of argument to the conduct of public officials, or even to the law.

Insofar as official nonconformity to law is regarded merely as the failure to follow rules, it is implausible to regard it as a kind of injustice. Is there anything else essential to official noncompliance that would provide the required link? It must be something essential to this kind of rule breaking, that is, something independent of all circumstances. Otherwise, a formal justice claim cannot be supported, for formal justice maintains that official disobedience is always morally objectionable, regardless of the circumstances.

Following a rule faithfully cannot be classed as justice, because rules are followed in all walks of life and may have nothing to do with justice. However, the question of equating rule-following with justice only arises in the context of duties or functions with effects on multiple other people – activities in the context of which it makes sense to talk about justice and injustice (Lyons’s counter-example of following the rules of grammar is question-begging). The “something essential” is the topic which was originally in question, that of following the rules given by the law. Once this is granted, this argument reduces to the previous one – that there is no procedural justice in the uniform application of unjust criteria – and is equally false.

Lastly, Lyons considers the argument for impartiality as a component of formal justice. He quotes Hart:

To say that the law against murder is justly applied is to say that it is impartially applied to all those and only those who are alike in having done what the law forbids; no prejudice or interest has deflected the administrator from treating them “equally”.

Indeed, it might be said that to apply a law justly to different cases is simply to take seriously the assertion that what is to be applied to different cases is the same general rule, without prejudice, interest, or caprice.

Contra Hart, however, Lyons maintains that the idea of impartiality has no necessary relationship with that of proceeding by rule. Uniformity does not entail impartiality: “[a]lthough impartiality may require some kind of uniform behavior, merely to deal with cases in a uniform manner is not to be impartial.” Indeed, uniformity understood ‘mechanically’ allows no scope for judges to show either partiality or impartiality. Only if the judge has a choice can the choice be made impartially; but

[i]f the formalist also believes that the choice of lawful alternatives is subject to criticism in the name of justice, then he must qualify his formal justice claim accordingly, because the simple requirement that officials act within the law does not enable the formalist to differentiate between the lawful alternatives.

Here Lyons appears to be making rather heavy weather of the ‘formalist’ claim that rules (with all their grey areas) should be applied, but applied impartially – both-and, not either-or. (Rather confusingly, Lyons uses ‘formalist’ as shorthand for ‘believer in the inherent virtue of formal justice’. He appears himself to be a formalist, in the more conventional sense of ‘analyst of a phenomenon in terms of its forms rather than any inherent qualities’.) When he pursues the topic of impartiality further, his argument becomes confused.

The claim that administrative justice requires impartial application of the law to particular cases is not inherently formalistic. One might agree, for example, that the just way of applying the law is the impartial way, while believing that justice may sometimes require that officials not apply the law. The formalistic version of the claim maintains that impartial application of the existing rules of law fully embodies administrative justice, with the understanding that this claim fundamentally requires officials to act within the limits laid down by law.

Certainly justice may sometimes require that officials not apply the law, but procedural justice – justice in the process of the application of the law – cannot. To say that “the just way of applying the law is the impartial way” is to make a claim about procedural justice, which is not at all affected by claims about the justice of the law itself or of particular outcomes. What Lyons means by the formulation “fully embodies administrative justice” is unclear, but it seems to suggest some claim about the justice of the process as a whole – not the justice with which it is administered.

Let us assume that officials should, to do justice, be impartial; this does not imply adherence to any particular set of rules, such as the rules of law. Again, suppose that the only just way of applying the law is the impartial way; it does not follow that an official who fails to follow the law acts unjustly. Let us agree that an application of the law which is not impartial is unjust; it does not follow that all deviations by officials from the law are unjust. For not every such departure could be described as an application of the law that fails to be impartial. An official might deliberately refuse to follow the law; this is not the same as applying it in, for example, a biased or prejudiced manner. This distinction is important, for the official may refuse to follow the law on principled grounds, precisely in order to prevent an injustice of which he would be the instrument.

The first claim here is irrelevant; the topic at issue here is precisely impartiality in following the rules of the law. The second is a non sequitur, which seems to broaden the argument unhelpfully to official deviancy in general. The remainder of the paragraph is valid, but what it expresses is simply the distinction between procedural injustice and injustice of outcome. It’s open to Lyons to argue that there is no procedural injustice in cases where justice of outcome is unaffected, but – as I argued above – this is only tenable if we effectively define ‘outcome’ to include all the effects on an individual of being involved in a court case, which is surely far too broad.

Next, Lyons on Fuller; then back to Hart.

Hart and natural law: the three concessions

In this & the following posts I’m going to look (sometimes quite obliquely) at Hart’s position on natural law – on the ways in which, and the extent to which, law can and should be taken to rest directly on morality, rather than constituting its own free-standing structure of posited norms.

Hart is strongly associated with legal positivism, and with what Jules Coleman has called the ‘no necessary connection’ argument in particular. Legal positivism tells us that the law is constituted, and can be identified, through rule-based social practices which confer meaning and significance on particular statements, acts and roles. The ‘no necessary connection’ argument tells us that the rule of recognition – the set of rules, assumptions and practices which qualify law as law in a given society – either may or may not include reference to moral standards. Contra Kelsen on one hand and natural law theorists on the other, Hart argued that morality and the law might (in some systems) be connected – there might be a settled and officially-recognised practice of deciding certain points by reference to moral arguments – but that the two had no inherent, general or necessary connection.

In this post I’m going to introduce three apparent concessions by Hart to natural law arguments, then introduce a late comment in which he suggests that one of these might be in need of revision. The next two posts will look at two papers by the philosopher David Lyons, one of which prompted Hart’s remark qualifying his position, and ask what implications Lyons’s arguments had for Hart. After summing up how I think Hart might have made use of Lyons’s arguments, I shall review some later responses to Hart’s qualification, from Matthew Kramer, Leslie Green and John Gardner.

The Giant Land Crab Postulate

Hart makes three concessions to natural law arguments, covering the content of law, the justice with which it is administered and the followability of law. We can refer to these as substantive natural law,  procedural natural law and the morality of law, respectively. In his 1958 paper “Positivism and the separation of law and morals”, Hart introduces the concept of a necessary minimum level of law – and hence a minimal framework of substantive natural law – by reference to the fact that we are not giant land crabs.

suppose that men were to become invulnerable to attack by each other, were clad perhaps like giant land crabs with an impenetrable carapace, and could extract the food they needed from the air by some internal chemical process. In such circumstances (the details of which can be left to science fiction) rules forbidding the free use of violence and rules constituting the minimum form of property – with its rights and duties sufficient to enable food to grow and be retained until eaten – would not have the necessary non-arbitrary status which they have for us, constituted as we are in a world like ours. At present, and until such radical changes supervene, such rules are so fundamental that if a legal system did not have them there would be no point in having any other rules at all. Such rules overlap with basic moral principles vetoing murder, violence, and theft; and so we can add to the factual statement that all legal systems in fact coincide with morality at such vital points, the statement that this is, in this sense, necessarily so.

The argument is developed further in The Concept of Law, in which Hart identifies three fundamental facts of social life from which we can derive a minimal system of mutual forbearances, and hence the “minimum content of natural law”:

  1. human vulnerability
  2. approximate equality
  3. limited resources
  4. limited altruism
  5. limited understanding and strength of will

It has to be said that Hart’s second and fifth qualities don’t entirely seem to belong. The last is introduced in the context of the need for sanctions to back up voluntary compliance with a code of forbearances, rather than the need for the code itself. The second seems more to be a background condition of any human society. Hart refers to the impossibility of imposing a generally-accepted framework of rules on individuals of vastly differing capacities; in the absence of general rough equality, in other words, the 20-foot noblemen (or the mutant superheroes) could lord it over all of us and no law of ours could bind them. This seems a counterfactual too far, and Hart seems to have brought it in mainly in reference to international law; he argues that the absence of this condition is precisely the key problem in that setting.

If we remove these, we are left with a core list of three facts of life:

  1. human vulnerability
  2. limited resources
  3. limited altruism

These three can all be seen as vulnerabilities – vulnerability to direct physical harm; to material deprivation (ultimately, to hunger and cold); and to social abandonment and neglect. The three vulnerabilities have the interesting quality that the removal of any one of them would address the other two. (Try it: for the third one, “imagine all the people sharing all the world”. Also, “imagine there’s no scarcity” and “imagine we’re all solar-powered land crabs”. Some would say that John Lennon missed a trick there.)

There are certain adverse outcomes to which we are all vulnerable, in any imaginable human society, and which – crucially – we can all bring about in others: anyone can kill or be killed, steal or be stolen from, abandon or be abandoned. Hence a certain minimum, presumptively universal, content to the law, which can without too many problems be called natural. (It might seem that deprivation of human kindness – abandonment by one person of another – is considerably less serious than robbery or violence. But consider that, in most cases where one adult can be said to abandon another, it will be unclear who has deprived whom of kindness. Ideas of abandonment come into play – and into the realm of the law – where one party is need of care and/or the other has a duty of care.)

Substantive natural law, then, gives a minimum content to positive law. It has a considerable degree of overlap with the precepts of morality, but it derives – as does morality – from the facts of human existence. Substantive natural law is the minimum framework of mutual forbearances required to regulate society in response to the irreducible fact of human vulnerability (physical, material and social).

It’s the Law

Procedural natural law is introduced by Hart in his 1958 paper as follows:

If we attach to a legal system the minimum meaning that it must consist of general rules … this meaning connotes the principle of treating like cases alike, though the criteria of when cases are alike will be, so far, only the general elements specified in the rules. It is, however, true that one essential element of the concept of justice is the principle of treating like cases alike. This is justice in the administration of the law, not justice of the law. So there is, in the very notion of law consisting of general rules, something which prevents us from treating it as if morally it is utterly neutral, without any necessary contact with moral principles. Natural procedural justice consists therefore of those principles of objectivity and impartiality in the administration of the law which implement just this aspect of law and which are designed to ensure that rules are applied only to what are genuinely cases of the rule or at least to minimize the risks of inequalities in this sense.

In The Concept of Law, Hart develops this argument; he also includes a second argument in response to Fuller. (Fuller’s Anatomy of Law had not yet appeared at this stage, but Fuller had replied to Hart’s 1958 paper in the same year, arguing for an ‘inner morality of law’.)

We may say that [the idea of justice] consists of two parts: a uniform or constant feature, summarised in the precept “Treat like cases alike” and a shifting or varying criterion used in determining when, for any given purpose, cases are alike or different. … In certain cases, indeed, the resemblances and differences between human beings which are relevant for the criticism of legal arrangements as just or unjust are quite obvious. This is pre-eminently the case when we are concerned not with the justice or injustice of the law but of its application in particular cases. For here the relevant resemblances and differences between individuals, to which the person who administers the law must attend, are determined by the law itself. To say that the law against murder is justly applied is to say that it is impartially applied to all those and only those who are alike in having done what the law forbids; no prejudice or interest has deflected the administrator from treating them equally. Consistently with this, the procedural standards such as ‘audi alteram partem‘ ‘let no one be the judge in his own case’ are thought of as requirements of justice, and in England and America are often referred to as principles of Natural Justice. This is so because they are guarantees of impartiality or objectivity, designed to secure that the law is applied to all those and only to those who are alike in the relevant respect marked out by the law itself. The connection between this aspect of justice and the very notion of proceeding by rule is obviously very close. Indeed, it might be said that to apply a law justly to different cases is simply to take seriously the assertion that what is to be applied in different cases is the same general rule, without prejudice, interest or caprice. (pp. 160-1)

Further aspects of this minimum form of justice which might well be called ‘natural’ emerge if we study what is in fact involved in any method of social control … which consists primarily of general standards of conduct communicated to classes of persons, who are then expected to understand and conform to the rules without further official direction. If social control of this sort is to function, the rules must satisfy certain conditions: they must be intelligible and within the capacity of most to obey, and in general they must not be retrospective, though exceptionally they may be. This means that, for the most part, those who are eventually punished for breach of the rules will have had the ability and opportunity to obey. Plainly these features of control by rule are closely related to the requirements of justice which lawyers term principles of legality. Indeed one critic of positivism has seen in these aspects of control by rules, something amounting to a necessary connection between law and morality, and suggested that they be called ‘the inner morality of law’. Again, if this is what the necessary connection of law and morality means, we may accept it. It is unfortunately compatible with very great iniquity. (pp. 206-7)

For Hart in 1958, “natural procedural justice” consists in applying general rules objectively and impartially so as to treat like cases alike; this is “justice in the administration of the law”, which can be distinguished from “justice of the law”. For Hart in 1961, “to apply a law justly” is to apply the same rule to different cases without prejudice; however, he does not refer to this (in his own voice) as a principle of natural justice. He is also reluctant to extend the label of ‘natural’, or the term ‘morality’, to the ‘requirements of justice’ identified by Fuller as an ‘inner morality of law'; Hart prefers to characterise these as ‘features of control by rule’, requirements which are (‘in fact’) characteristic of any form of rule-based social control. However – in a seemingly nugatory concession which has the effect of making Hart’s position much stronger – Hart grants that Fuller’s ‘inner morality of law’ may be accepted as such, with the dismissive proviso that it appears to have no effect (moral or otherwise) on the outcomes produced by a legal system.

Friendly Fire

By 1961, then, Hart’s attachment to any idea of procedural natural justice was already qualified and reluctant. What, then, to make of the closing paragraph of the “Introduction” to 1983’s Essays in Jurisprudence and Philosophy?

I hope that in what is a second exchange of friendly polemics between myself and Fuller … I have not been unfair in my criticisms of his conception of an inner morality of law; but I see now largely as the result of Professor Lyon’s [sic] essay on Formal Justice that an argument similar to mine against Fuller might be used to show that my claim made in [“Positivism and the separation of law and morals”] and repeated in my Concept of Law that a minimal form of justice is inherent in the very notion of a general legal rule applied according to its tenor to all its instances is similarly mistaken. I am not sure that it is so, but I am clear that my claim requires considerable modification.

What indeed? We’ll find out next time, by way of a reading of David Lyons’s 1973 paper “On formal justice”.

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