Category Archives: legal matter

When strangers were welcome here

There’s a particular move in populist politics which I think of as the Death Spiral. (I was going to call it the Death Spiral of Hate, but – while indubitably more precise – that wording is probably cranking it up a bit too high for the first paragraph of a post.) It’s a bit like conjuring a folk devil and a bit like a political bidding war; it’s more contained and predictable than the folk devil phenomenon, though, and it’s unlike a bidding war in not needing a partner (although others can certainly join in).

It goes like this. First, somebody in government (or in friendly media) stokes up hatred against a particular group. Then the government responds to public concern – well, you’ve got to respond to public concern, haven’t you? – and takes action against the group. Here’s the twist: the action that the government takes doesn’t lead the hatred to subside; the angry mob doesn’t put down the pitchforks and douse the torches, satisfied that somebody’s finally listened to them and done something. The government’s action leaves the well of popular hatred very much undrained; it may even top it up. Because then, after all, the public can once again express its very real concerns – and that will give the government something to respond to (you’ve got to respond to real public concerns). Once started, the process can go round and round indefinitely: the government and its supporters sing an endless call-and-response of resentment and self-righteous severity, opposition parties are wrong-footed or forced to tag along, and everybody’s happy – except the poor sods who are getting interned, denied benefits, etc.

For example: five years ago Louise Casey – then working for the Labour government as a consultant on ‘community’ issues – argued that community sentences should be made both tougher and more visible. People carrying out unpaid work as part of a non-custodial sentence should do it out in public where people can see; to make sure people do see, they should wear those orange boiler-suits out of Misfits, or hi-viz jackets, or both. So people doing ‘Community Payback’ would become a familiar sight; instead of thinking of community sentences as a soft option, people would see the reality of ‘community punishment’ and think… well, what? Would they think, those kids picking up litter are really suffering – that looks just as bad as prison to me! It seems more likely that they would see people in orange boiler suits who weren’t working particularly hard (they might be chatting among themselves, they might even be stopping for a fag) and think, I used to think community service was a soft option – now I’m sure!. Five years on, the perception of non-custodial sentences as a soft option certainly doesn’t seem to have gone away.

My son brought another example to my attention the other day. You know this proposal to deny benefits to immigrants until they’ve been here for three months? Won’t that make them more likely to take any job that’s going, even below the minimum wage, even working cash-in-hand? “Mmm, yeah,” I said. And won’t that… I caught up. “Won’t that create more competition with the very lowest-paid British workers, thereby creating even more resentment of immigrants and even more pressure to get tough on immigration, again? Yes, I think it will.”

Whatever else I could say about Louise Casey and David Cameron, I don’t think either of them is stupid; as PM, Cameron even has a kind of intellectual praetorian guard, responsible for making sure that his ideas are in working order (as well as for preserving him from contact with any ideas from the outside world). I think he knows what he’s doing (as did Casey); I think he’s identified an appetite that will grow with feeding, and he’s making sure it’s fed.

It’s sometimes argued that populism is directionless and reactive, subject to lurches in any number of directions; it’s sometimes even argued that populism can or should be used by the Left (“where’s the Nigel Farage of the Left?” and so forth). On this way of thinking, ‘Death Spiral’ effects emerge when populism just happens to lurch in the direction of giving an unpopular minority a kicking. They may be no more than an unfortunate side-effect of giving the people what they think they want, in other words. Ed Miliband’s intervention gives the lie to this argument and throws the Death Spiral into relief, by demonstrating that it’s not the only way to address people’s worries about immigration. While it doesn’t necessarily go as far as Mike would have liked (and certainly isn’t framed in his terms), Ed’s statement takes on those who attack economic immigration and effectively calls their bluff. After all, the problem of low-paid immigrants – to the extent that there is such a problem – is by definition a problem of employers choosing to (a) employ immigrants to the exclusion of native workers and, not unrelatedly (b) to pay immigrants less than native workers; constrain those choices (whether from above, as Ed prefers, or from below) and a material source of conflict between two groups of workers disappears. (Those two groups may still hate each other on the basis of free-floating prejudice, but those feelings tend to fade over time – at least, they do if they aren’t reinforced.) Marxists know that the important antagonisms start with material interests, and that that’s where the changes need to be made. And so does Ed.

Another group which is supposed to take a grown-up view of immigration are the economic liberals, and particularly the intellects vast and cool and unsympathetic of right-libertarianism. Bryan Caplan certainly sets the right tone at the outset of his 2012 Cato Journal paper (PDF), arguing that there are no relevant differences between a Haitian being denied entry to the US and a US citizen going to Haiti on a relief mission and then being denied re-entry. (Oh, very well, a US citizen and all of his/her family went to Haiti to help out, and they were all denied re-entry. Happy now?) But we needn’t join Caplan in his helicopter to appreciate the force of his arguments against restrictions on immigration. Caplan addresses four arguments against free immigration, focusing on its effects on low-waged workers, welfare spending, cultural cohesion and the political sphere; he argues in each case that the costs may not be as high as they’re made out to be, and that any costs which are incurred can be mitigated at a lower overall cost than the cost currently imposed by restricting immigration. He concludes:

there are cheaper and more humane solutions for each and every complaint. If immigrants hurt American workers, we can charge immigrants higher taxes or admission fees, and use the revenue to compensate the losers. If immigrants burden American taxpayers, we can make immigrants ineligible for benefits. If immigrants hurt American culture, we can impose tests of English fluency and cultural literacy. If immigrants hurt American liberty, we can refuse to give them the right to vote.

There’s a lot to like about this paper (I’ve always considered myself a libertarian Marxist), but two aspects of Caplan’s argument gave me pause. One, exemplified by the passage quoted above, is the nonchalantly instrumental use made of some fairly sweeping restrictions on citizenship. It seems to me that to declare that any member of a defined category of individuals will be denied the vote – or denied welfare benefits, or taxed at a higher rate on equivalent income – is to institutionalise inequality, making members of that category significantly unequal to the majority in their enjoyment of the benefits of citizenship. In other words, Caplan is entertaining the possibility of addressing the lack of liberty involved in shutting people out from a given country by letting those people in as second-class citizens. (I don’t say Caplan is proposing doing so, as the main argument of his paper is that the disadvantages of free immigration are either non-existent or much less significant than we imagine. The second-class citizen solution is put forward as a subsidiary argument.)

I find this troubling on a number of levels. Firstly, if we’re talking in terms of nation states – as we plainly are if we’re talking about taxation and welfare benefits – I think it’s legitimate to treat the question of who is allowed to enter a country quite separately from the question of how people are treated within the country. Ultimately I’m for a world with no border controls and no borders, but ultimately I’m for a world with no wage labour. In the mean time, I think that making everybody within an arbitrary area on the map a full citizen, but making it difficult to enter that area, is a more equitable solution than making the border permeable but introducing gradations of citizenship within it. If that’s the only way to get to open borders, in other words, then I’m not so keen on open borders as I was. Secondly, I value citizenship as a good in itself, and I believe that universality (within a given political unit) is one of its key attributes; I’m unhappy with any solution (to any problem) which turns on instituting different categories of citizenship. (Needless to say, I’m opposed to this even – or especially – in cases where it is actually being done: I believe that people who don’t look for work should not be denied unemployment benefit, that visitors to the UK should not be made to pay for healthcare, that prisoners should not be deprived of the vote, and so on.) Thirdly, I wonder what the introduction of graduated citizenship for non-natives would do to citizenship as an experienced social category: would it accustom people to the idea of multiple citizenships, making it possible for further gradations to be introduced and for full citizenship to be restricted to a smaller group? Lastly, I’m particularly troubled by the thought of living in a country where second-class citizenship is imposed on a recognisable and unpopular minority – or, to put it another way, being ruled by a government which imposes second-class citizenship on such a minority. I wouldn’t like to live under a government like that for precisely the same reason that I wouldn’t want to live under a government that closed the borders: in both cases, the government would be differentially imposing restrictions on people disliked by most of its voters. It seems to me that there’s a certain political tone-deafness about Caplan’s paper when he floats these proposals. Immigration restrictions might be enacted by an anti-immigrant government courting immigrant-hating voters, but the same would surely be true of restrictions on benefits or voting rights for immigrants. Even if they were enacted in the purest spirit of right-libertarianism, they would be received as blows against an unpopular minority – and those who welcomed them would soon grow hungry for more.

Secondly, there’s an odd passage in the section in which Caplan addresses the effects of free immigration on the political sphere. The worry here – more of a worry for right-libertarians than for me, or indeed most of us – is that immigrants might bring a ‘statist’ political culture with them and shift their host country’s political spectrum to the Left. After noting that there isn’t much evidence of this happening (for good or ill), Caplan moves on to the effect of ethnic diversity on social solidarity, as expressed in support for a redistributive state. He cites research to the effect that the relationship between the two is inverse – more diversity, less solidarity – and comments:

Social democrats may find this tension between diversity and solidarity disturbing. But libertarians should rejoice: increasing foreigners’ freedom of movement may indirectly increase natives’ freedom to decide who deserves their charity.

Ahem. We weren’t actually talking about charity as such in fact that’s rather the point. (Sorry, just had to say that.) Anyway, there’s more where that came from:

Immigrants are the ultimate out-group. Even today, Americans publicly complain about “immigrants” in language they would never use for blacks or gays. If the knowledge that foreigners attend “our” public schools and seek treatment in “our” hospitals does not undermine support for government spending on education and health care, nothing will.

OK… what just happened? Right-libertarians should support free immigration, not only despite widespread hatred of immigrants but, in part, because of it? The thinking seems to be that right-libertarians should welcome a proprietary, in-group-based attitude to public services, because the extension of those services to immigrants will undermine that attitude and hence discredit the public services themselves. Pride in public services is all to the good, as long as it comes into conflict with the reality of public provision and generates disillusion; and hatred of immigrants is all to the good, as long as its main effect is to undermine social solidarity. Unrestricted immigration may lead to the development of a society of endemic self-centredness and mistrust (by multiplying the objects of distrust and fear), but this in itself should be welcomed: a cohesive, high-trust society is a society where people tend to support public provision of services.

What Caplan is expressing, or – what’s the word? – adumbrating here is the logic of the Death Spiral. If you start pointing out how public money is being spent on the wrong services (and especially) for the wrong people, that won’t lead to a trimmed and rationalised set of public services which everyone can be happy with – it’ll lead to an endless whittling away of those services, as more and more occasions for outrage are unearthed. What’s interesting about Caplan’s argument is that the Death Spiral is set out quite openly and frankly: the more immigrants are seen to be using public services, the more pressure there will be to reduce those services – and the less tolerance there will be for immigrants using them.

The underlying logic of the Death Spiral is cynical and simple: there is an out-group, there are people who will be satisfied by seeing it get a kicking, and their satisfaction can be exploited – either for political support or to further a larger objective, as in Caplan’s argument. We’re dealing here with what John Rawls called “other-directed preferences”. Rawls argued that a just political order should give equal weight to all citizens’ preferences, but only their “self-directed” preferences: my desire to have the vote, a decent education and opportunities in life should be recognised, but not my desire to deprive you of those things – even if there were a lot of ‘me’s and only a few ‘you’s. I think it’s definitive of populism that it valorises, and orchestrates, other-directed preferences: populism isn’t always socially reactionary, but even the mildest, most herbivorous populism expresses preferences directed at politicians (generally binding and restricting their actions). With Marxism, other-directed preferences aren’t part of the package, the odd revenge fantasy about bankers excepted; in action, Marxism is all about universal needs and generalised empowerment to achieve them. As for right-Libertarianism, Caplan’s unconcern for universal citizenship and his willingness to turn his hand to a Death Spiral argument both make me wonder. Certainly we shouldn’t judge the whole tribe by the Randians, with their grim relish in the come-uppance of the second-handers. Maybe right-Libertarianism isn’t just about dismantling public services, replacing citizenship entitlements with a cash nexus, and be damned to anyone who happens to be dependent on public provision when it all comes down; maybe at its core it’s a genuinely universalisable creed, which can be grounded in my, your, his and her own preference for liberty in just the same way that Marxism can be grounded in our shared preference to eat. But I wonder.

The gate to the law

The other day I was reading what I believe is the latest (and trust is the last) instalment in the long and almost epistolary debate between Matthew Kramer and Nigel Simmonds on the inherent morality of the law. (Nothing to say about that at the moment.) After following a few footnote references a song came unbidden to mind:

O Lord, won’t you buy me a sub to Jurisprudence?
The papers of interest are so multitudin’s!
Worked hard all my lifetime – ain’t no Homo Ludens -
So Lord, won’t you buy me a sub to Jurisprudence?

Or, more wistfully,

I often dream of reading Jurisprudence
I recommend it to selected students
I dream of it constantly
Accessed through the British Library,
Oxford or Cambridge,
Or Birmingham…

My institution, in other words, doesn’t subscribe to the journal where some of the key debates in a topic that fascinates me are being carried on. (As indeed most institutions don’t – the list above is exhaustive as far as I know.) There’s a simple solution, of course; it’s called an inter-library loan. The only problem is the opportunity cost – by which I don’t mean the (fairly trivial) effort of going to the library and filling in a form, but the fact that deciding to do so would inevitably remind me of all the reading I’ve already got queued up (physical books included). So for now those papers by Simmonds, Gardner, Finnis et al are just going to have to wait.

Getting introspective for a moment, Jurisprudence and its non-availability are a bit of a Russian doll for me. A series of worries and fears are nested behind my resentment of not being able to get hold of it: the suspicion that if I had those papers I wouldn’t get round to reading them; and that if I did it would just be an intellectual hobby – I wouldn’t actually be able to use them, e.g. by writing anything (or anything I could get published); and that, if I wrote something properly theoretical and got it published (which is a big if), I still wouldn’t be in the kind of job where writing this kind of stuff was expected and approved. But perhaps those aren’t independent worries; perhaps it’s just an inner voice saying yeah, but it wouldn’t work… And actually that’s precisely what I don’t know. (More to the point, I don’t know how going down that route would work, or what precisely it would lead to.) So perhaps I just need to give it a go and see what happens. Including an ILL for an issue or two of Jurisprudence – at least, once I’ve got through the backlog.

I’m also wondering about further qualifications. Getting a Graduate Diploma in Law would take two years of fairly intensive part-time study (where the year runs October-June). I could do the same thing by taking Open University modules; this would take four years of what would also be fairly intensive part-time study (year running February to October). Comparing the OU option with the GDL, the prospect of taking twice as long for the same qualification at once attracts and repels me: it would be a good learning experience, but do I want to commit that much time and effort? There’s also the fact that, while getting some Law under my belt would suit me personally, it wouldn’t benefit me greatly in the job I’m actually doing – and doing the degree would make me ineligible for research funding from some sources, which would be a positive disadvantage.

Don’t know where I am with that; all comments welcome. In the mean time, here’s the abstract of a paper I’ve just had accepted for publication (Journal of Criminal Law):

New ASBOs for old?
The Anti Social Behaviour Order (ASBO) was designed as a civil/criminal hybrid, preventive in structure and with a largely undefined object. After 2002, legal challenges to the ASBO led to the use of justificatory arguments from cumulative effect, and to the introduction of new measures which offered to regulate anti social behaviour in more legally acceptable forms. The Coalition currently proposes to replace the ASBO with two new instruments: a post-conviction Criminal Behaviour Order (CBO) and a wholly-civil ‘injunction to prevent nuisance and annoyance’ (IPNA). While the CBO and IPNA build on this history, it is argued that they do not represent a new approach to anti social behaviour so much as a continuation of the ASBO by other means.

And the abstract of a paper I’ve just submitted to a conference next year on “Penal law, abolitionism and anarchism” (feat. Joe Sim and Vincenzo Ruggiero):

Law after law? Abolitionism and the rule of law

Liberal legal theorists have argued that the law has an inherent morality (Simmonds 2007), making it an intrinsically valuable social project, and that the institutions and practices making up the rule of law encapsulate key virtues of the concept of law (Waldron 2008). However, the rule of law as we know it 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.

Now I just need to write one explaining the connection between those two…

Footnote OTD

Ancient Athenians could not fetch beer from the fridge of the Vice-Chancellor of Cambridge University

- from note 15 to Nigel Simmonds (1995), “The analytical foundations of justice”, Cambridge Law Journal 54(2)

(In context it’s actually a very good point.)

Bavarian gentians

Not every man has felt the pure delight
- the un-self-conscious delight – of sitting forward
suddenly upright and alert, a swallow of beer
still coating the back of his throat as he sits forward
alert on the stained and punctured leather cushion
Detroit soul hanging in the air unheard… it is not
as I say, every man who has known
the unthought joy of budging forward, alert,
glass in hand or close by, saying aloud
(and none too quietly), “Are you on crack?”
addressing the query to a book about the law.

Reach me a gentian, give me a torch… I’m currently reading A debate over rights, for the second and probably not the last time. Heaven knows if I’ll ever make a living – or even score a research grant – out of this stuff, but as reading matter goes I am really enjoying it.

More importantly, I’m liking the directions it’s leading me. To be perhaps more clear than I usually am on this topic, it’s been my conviction for a while that (firstly) there’s something deeply unsatisfactory – something less than fully or universally human – about models of subjecthood predicated on a Kantian model of the rights-bearing individual; and that (secondly) all currently available alternatives – whether they start from a utilitarian calculation of costs and benefits to society as a whole or from less hard-edged assertions of the rights of the ‘community’ – are even worse. We – particularly a Marxist ‘we’ – need something better than a Kantian liberal model of society as composed of individual bearers of jointly compossible rights, but in order to get there I believe we’ll need to wring the liberal model dry, or push it till it breaks. It’s going to be a big job – and, in fairness, reading Kramer et al in a pub may not seem like much of a contribution to it. But it is giving me food for thought in great quantities – even, or especially, those passages I strongly disagree with – which I appreciate greatly. Thanks again, Matthew and Nigel.

No top and no bottom

1. I agree with Vladimir Putin, up to a point

From the outset, Russia has advocated peaceful dialogue enabling Syrians to develop a compromise plan for their own future. We are not protecting the Syrian government, but international law.

It’s the way he tells ‘em.

To be fair, Putin’s address to the American people did make some good points, in particular this one:

The United Nations’ founders understood that decisions affecting war and peace should happen only by consensus, and with America’s consent the veto by Security Council permanent members was enshrined in the United Nations Charter. The profound wisdom of this has underpinned the stability of international relations for decades.

No one wants the United Nations to suffer the fate of the League of Nations, which collapsed because it lacked real leverage. This is possible if influential countries bypass the United Nations and take military action without Security Council authorization.

I liked his conclusion, too:

I would rather disagree with a case [Obama] made on American exceptionalism, stating that the United States’ policy is “what makes America different. It’s what makes us exceptional.” It is extremely dangerous to encourage people to see themselves as exceptional, whatever the motivation. There are big countries and small countries, rich and poor, those with long democratic traditions and those still finding their way to democracy.

In passing, I was amused to see that this last glimpse of the blindingly obvious had annoyed Thomas Friedman. Who does this so-called President Putin think he is, making out that America isn’t the greatest goddamn country on earth?

2. Inter arma enim silent leges, only not just yet

But is the man from the KGB really standing up for international law – and what does it actually say about Syria? This is a bit less of a live issue, thankfully, than it was before the rush to war was stopped in its tracks (well done that weakling!). The UK government’s case for intervention, set out by Attorney General Dominic Grieve, rested on the doctrine of “humanitarian intervention”. The argument was that it would be permissible under international law for the UK (or, presumably, any other state) “to take exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime”. Such an intervention would be legal under three conditions:

That there is “convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief”; it is “objectively clear that there is no practicable alternative to the use of force if lives are to be saved”; and the proposed use of force is “proportionate to the aim of relief of humanitarian need”.

In response, Dapo Akande of the Oxford Institute for Ethics, Law and Armed Conflict pointed out that neither the second nor the third condition had been met. The third was particularly hard to get past:

“Even if there is a rule allowing intervention to avert a humanitarian catastrophe that rule would not simply permit action to deter and disrupt use of chemical weapons,” Akande said. “This standard is too lax. It would be a rule about preventing and about stopping. The UK is not proposing to take action which will actually prevent or stop further uses of chemical weapons.”

Unless, of course, what the UK government was planning was to carry on bombing until every last chemical weapon in Syria had been put beyond use; we’ll never know. It’s probably just as well.

Akande also made a broader point, which is that the idea of legality invoked by Grieve is rather a provisional thing. To the extent that it’s codified in any way, international law provides for military action in self-defence, in accordance with a UN Security Council resolution and, er, that’s it. What Grieve is referring to is the informal or ‘customary’ international law which is constituted from year to year by what states actually do.

when the attorney general’s advice says international law allows Britain to take measures to alleviate a humanitarian catastrophe without security council approval, this can only be in reference to customary international law which is based on the “views and practices of states”. [Akande] said there is “very little evidence of state support for this view. Indeed most states have explicitly rejected this view.”

3. Better not ask them to split the bill

The BBC canvassed opinions from Akande and four other lawyers (Geoffrey Robertson QC, Professor Sigrun Skogly, Professor Robert McCorquodale and Professor Dr Wolff Heintschel von Heinegg) as well as the political analysts Dmitry Babich and Sinan Ulgen. Their views stacked up as follows. There were five key issues: the role of the UN, including but not limited to the UN Security Council; the legality of “humanitarian” interventions; the legality of past interventions in Iraq and Kosovo; the “responsibility to protect” doctrine in the case of crimes against humanity; and the appropriate response to breaches of the ban on chemical weapons.

ROBERTSON: Intervention to prevent crimes against humanity – such as the use of banned chemical weapons – does not require UN Security Council approval; the legality of humanitarian intervention was established even before the UN was founded, in the context of actions against piracy and slavery. The intervention in Kosovo was not condemned by the UN Security Council, making it legitimate.

SKOGLY: Normally, any intervention needs to be approved by the UN Security Council. However, the legality of humanitarian intervention is a separate question. UN member states have a duty to promote human rights; consequently, if the regime has used chemical weapons, they have committed crimes against humanity. This means that UN member states are obliged to act on the basis of the responsibility to protect.

McCORQUODALE: Military action must be approved by the UN Security Council; failure to gain this approval means that the Iraq intervention is considered illegal. Intervention for humanitarian reasons, or on the basis of the responsibility to protect, is not lawful in terms of international law, although it may be in future.

AKANDE: The principle of responsibility to protect “does not create a legal right for intervention without Security Council approval”. The doctrine of humanitarian intervention rest on “a view of international law that has been rejected by most states”. (The humanitarian intervention in Kosovo, while not approved by the UN Security Council, was in pursuit of demands made by the UNSC.) A General Assembly resolution might be a possibility, but permanent members of the UNSC are unlikely to offer the GA that kind of authority.

HEINTSCHEL VON HEINEGG: In the absence of a UN Security Council resolution, intervention could only be justified on the basis of “customary international law”. The US and allies acted on this basis in their humanitarian intervention in Kosovo, although many states still regard this intervention as illegal. International treaties outlaw chemical weapons but do not provide for military intervention in response to their use. Some states currently turn a blind eye to limited action against chemical weapons, but this may change.

BABICH: Although the US might cite chemical weapons as a justification, UN Security Council approval is essential to make any intervention legal. Iraq and Kosovo didn’t have UN approval and were therefore illegal. And let’s not forget that they never found any chemical weapons in Iraq.

ULGEN: Only action approved by the UN Security Council would have “full legitimacy”. An alternative would be to try to get a resolution passed by the General Assembly. Other possibilities, outside the UN framework, include the responsibility to protect principle (invoked successfully in Kosovo) and international law banning chemical weapons, going back to the 1925 Geneva Convention.

4. At the shatterproof heart of the matter

So what does that lot add up to? For McCorquodale, Akande and Heintschel von Heinegg (three of the five lawyers), as well as Babich, the lack of UN approval makes intervention illegal. At the same time, all three lawyers acknowledge that international law changes over time and that customary international law may, arguably, give support to actions which are formally illegal. In this respect they contrast the Syrian situation unfavourably with Kosovo, although it’s a question of degree: none of them goes so far as to assert that the Kosovo intervention was legal. They also note, as does Babich, that customary international law is contested: one state’s customary international law may be another state’s illegal aggression.

Robertson dismisses the idea that UN approval is needed before military action can be taken. He argues that humanitarian intervention is legitimate, and that it’s legal under international law unless and until it’s ruled to have been illegal. Robertson’s invocation of piracy in this context is odd; action against piracy was justified historically on the basis that pirates were hostes humani generis, enemies of mankind and outside the protection of any nation. Robertson also refers to slavery, which seems more relevant: British actions in suppressing the slave trade – such as detaining slave ships and offering the slaves their freedom – could certainly be seen as outside the law, and did cause international incidents. However, these were at worst acts of unlawful expropriation, for which the slaveowners and their governments could (and did) ask for redress. Any parallel with the proposal to ‘free’ the people of Syria from the use of chemical weapons through outright acts of war is stretched in the extreme. Skogly and Ulgen both argue that the responsibility to protect could justify intervention, although Ulgen does acknowledge that this would be outside the UN framework. Skogly goes so far as to argue that “responsibility to protect” makes intervention obligatory, although she avoids stating outright that it would be legal.

Four of the experts refer to the “responsibility to protect” principle; only Akande notes, correctly, that it supplies a reason for intervention rather than a separate justification, and does not justify action by individual states outside the UN Security Council framework. (McCorquodale says that a state-level “responsibility to protect” would not make intervention lawful; Skogly and Ulgen both suggest that it would.) Another word worth watching is “legitimate”, a particularly slippery concept in this context (and only used by Robertson and Ulgen out of our experts). “Legitimate” doesn’t have a precise definition, but I’m taking it to mean “of uncertain legality, but unlikely to be challenged”. Of course, this is a fundamentally political judgment, as it depends on what you regard as a challenge: a nasty comment on Voice of Russia? a formal diplomatic rebuke? a referral to the International Court of Justice? (Or, if you’re a Republican President, none of the above?)

Having picked my way through all these different opinions, I think things ultimately are as simple as Babich makes them seem. The putative legal justification for an intervention has been variously rested on the 1925 Geneva Protocal banning chemical weapons (which doesn’t justify intervention), on the doctrine of preventing crimes against humanity (which is purely customary) or on the ‘responsibility to protect’ (which is codified, but doesn’t justify intervention outside the UN Security Council framework). In short, there’s nothing there, unless you define ‘international law’ as ‘what states do and then claim to be legal’ – and that’s not really satisfactory if the reason you’re invoking international law is to justify your state doing something and then claiming it to be legal. In this ‘customary’ perspective, international law (like reality) really is “what you can get away with“. This approach may work for a while if, like the USA, you’re one of those states that tends to get away with things (Britain historically isn’t, to its credit). But it’s not a principle that could ever coherently be generalised – which may be why, as Akande says, most states don’t want it to be. Remove this impossible option – of a kind of informal international legal order built on generalised lawlessness – and we’re left, as Putin effectively said, with a choice between international law and exceptionalism: either the law applies to everyone, or we maintain that it doesn’t apply to us because we say so.

This isn’t to say that there will never be an international mechanism for intervention in cases of humanitarian crisis, or that the ‘responsibility to protect’ will always be subject to agreement at the level of the UN Security Council. International law can and does change. But it hasn’t changed yet – not in the way that the interventionists would have liked.

5. Hark, now the drums they beat again

I think the failure (legal as well as political) of the arguments for intervention is significant – and very welcome, if that doesn’t go without saying. It should, hopefully, set an enduring precedent.

I have some sympathy for the people who say

it cannot be the case that [Security Council authorisation] is the only way to have a legal basis for action … We could have a situation where a country’s Government were literally annihilating half the people in that country, but because of one veto on the Security Council we would be hampered from taking any action. …That is why it is important that we have the doctrine of humanitarian intervention

or

a system of law that would countenance mass atrocity without any remedy simply because the interests of a veto-wielding power at the UN blocks remedial action is morally unacceptable, indeed intolerable; and so where the UN itself becomes delinquent by not upholding some of its own most fundamental principles, the UN not only may, it should, be defied by member states willing to give those principles more respect.

or, more succinctly,

Viewed from the angle of UN legality, military action against Assad cannot possibly be legal … If military action against Assad is morally justified then that must be the case regardless of whether or not it is ‘legal’.

(James Bloodworth, David Cameron, Norman Geras. Not necessarily in that order.)

I don’t agree with them, because I believe they’re missing two very important points. One is that legality – even the cobbled-together legality represented by international law – is a virtue in itself, and an extraordinarily important virtue. If the legal system of England and Wales governs 56 million individual actors, the international legal order governs 200 (give or take a few). If a handful out of 56 million actors defect from an agreement, they’re in trouble; if a handful out of 200 defect, the agreement is in trouble. An action in breach of international law isn’t simply an action with the quality of not being internationally legal  – it’s an action which breaches international law, leaves a (customary) breach in it. In other words, it’s an action which makes international law harder to invoke from then on, and harder to develop further. (Let’s say we hope to gain Russian and/or Chinese agreement to the principle of “responsibility to protect”. Would acting unilaterally now make gaining this agreement in future (a) easier or (b) harder?)

Pace James B, if military action against Assad (or anyone else) is illegal, that must be the case regardless of whether or not it’s morally justified – or, to put it another way, regardless of how much we may want it to be legal. And if you’re going to use your moral justification to knock a hole in the – already horribly imperfect – edifice of actually existing international law, it’s going to need to be a very good moral justification. Which brings me to the second point, touched on by Akande. Politically, the great merit of a rush to war is that it gets you into the war nice and quickly, without too much time to sit around debating the whys and wherefores. Conversely, one of the great merits of insisting on legality – at least, insisting on stopping for long enough to have the argument about legality – is that it creates a pause in the rush to war, in which there’s time to ask the awkward questions: in particular, what is the government trying to achieve, and has it chosen the best means to do it? Fortunately – and thanks to some excellent political footwork from Ed Miliband – there’s been a long enough pause for those questions to be asked; I think it’s fairly widely acknowledged now that the UK (and US) government’s goal was all too unclear, and the means chosen seemed likely to be horribly counter-productive. But it was a close thing.

Too often, when the drums start beating, the appropriateness of military force goes unquestioned, even by people who position themselves on the Left. But if all your solutions look like craters, I think you need to ask yourself why you believe that all your tools are missiles.

True crime

The government’s consultation on “Transforming Legal Aid” closes today (4th June). I’d urge everyone with any interest in the criminal law to take a few minutes to reply to it, especially if you’ve got some (any) relevant organisational affiliation.

There is also a petition on 38 Degrees, created by Maura McGowan QC:

We are calling on the Ministry of Justice to reconsider its plans to introduce Price Competitive Tendering for criminal legal aid. We believe that people should be entitled to choose a lawyer to represent them based on quality, not just be allocated one on the basis of whoever can do the job for the lowest price.

As the Chairman of the Bar Council, I know that we have a legal system which is respected all over the world. These proposals will damage that beyond repair and hit the diversity of the legal profession hard. Cut price justice is no justice at all.

At the time of writing it has 45,529 signatures. Add yours.

There is a petition on the government’s own epetitions Web site, which currently has 75,469 signatures; if it reaches 100,000 it will be debated in Parliament. It’s short and to the point. It reads:

The MOJ should not proceed with their plans to reduce access to justice by depriving citizens of legal aid or the right to representation by the Solicitor of their choice.

Sign it.

Here’s why. Continue reading

You’ve got to have the money to buy it

Let’s talk about legal aid.

I think it’s reasonable to say that the government isn’t keen on legal aid; many restrictions and obstacles have been introduced to the legal aid scene in the last few years, including an element of means-testing. It’s still broadly the case that, if you’re taken to court and you face a prison sentence (or equally serious penalty) if found guilty, you’re entitled to legal advice free of charge. Moreover, you’re entitled to choose your own representation. You may not choose to use this right or be able to exercise it effectively, but for many defendants this is a godsend. For example, if (far from hypothetically) you’re up on a public order charge arising from a demonstration, and you happen to know that a particular law firm has a good record in holding the police and the CPS to account in similar cases, you have the right to give them the call. These rights extend to serving prisoners and non-citizens such as asylum seekers, although naturally these small groups of people only supply a small proportion of the total legal aid caseload.

The government is currently bringing forward proposals to transform legal aid for criminal cases. This isn’t hyperbole, or if it is it’s not mine: the consultation document is actually called “Transforming Legal Aid“.

The transformation that the Ministry of Justice have in mind has two objectives. Firstly, costs would be cut. The consultation document hammers on the cost-cutting drum. The proposals in the consultation document fall into two categories: those with a justification on plausible financial grounds (disregarding their impact on the quality of service) and those with a vague handwave in the direction of a possible justification on financial grounds.

However, the sums involved are, in context, trivial: the estimated total annual saving is £220 million, or just under a fifth of one per cent of public sector net borrowing for the last financial year. This suggests that the second, less overtly stated, objective may be the main motivation: that the goal is not to produce a cheaper criminal legal aid system but a radically different one. The proposals would introduce competitive tendering for the right to offer legal aid services in particular areas, corresponding roughly to the forty-odd police force areas; no more than four firms would be accredited in any one area. (Correction: the number of firms accredited for each area is pre-determined, but the numbers vary from four up to a maximum of 38 (London West and Central). Fifteen of the proposed 42 areas have been allocated the minimum of four.) Clients would be assigned to lawyers rather than being able to choose them, and would have to stay with the brief they’d been given throughout the case. The proposals are designed not only to create a cost-driven market in legal aid provision but to open it up to new entrants, corporations offering a standardised and streamlined legal representation service; the Eddie Stobart haulage firm has already expressed an interest. It would still be possible to pay for legal representation of one’s choice; indeed, defendants with a high enough disposable income would be debarred from legal aid, positively guaranteeing the creation of a two-tier system. There’s more, and worse.

At an open meeting, Elizabeth Gibby of the Ministry of Justice was fazed by one particularly difficult question:

“Can you remind me of the section in the consultation paper which deals with the interests of the user of the service,” a solicitor from Oxford asked politely.

“I’m sorry; I don’t quite understand what you are saying,” Gibby replied after a pause.

“Can you refer me to the section of the paper that deals with the quality of the service provided and the effect on the quality of these proposals,” the solicitor asked again.

Gibby and her team of officials still seemed lost for words. Eventually, she asked the solicitor to respond to the consultation paper if he didn’t think that quality had been adequately covered in it.

There is nothing in the consultation paper about the quality of the service. Or to put it another way, the consultation is all about the quality of the service – it’s all about replacing the existing service with a lower-quality substitute. This matters, for very much the same reason as it would matter if we were replacing GPs or teachers with low-waged employees of profit-making companies. We know it’s a bad thing when people get the wrong advice from a banker or an estate agent or a car salesman, most of all if the person giving the advice profits from it; if there were a government scheme to make it easier for financial advisors to recommend the wrong product we’d all be up in arms. But bad legal advice is much, much worse; someone who gets the wrong legal advice can end up being named as a paedophile, or burdened with a conviction for fraud that will never become spent, or behind bars for murder, without having committed any of those crimes. (These real-life examples are from A Barrister’s Wife, a new blog which I strongly recommend.) And the proposed reforms will make bad legal advice much, much more likely.

Just to be clear, I am not suggesting that standardising legal aid would drive out professionalism, or that the only decent lawyers are those who can charge huge fees. The legal aid budget is already administered fairly strictly – any legal aid criminal defence lawyer motivated by money is in the wrong branch of the business. The problem with cost pressure and standardisation is much more insidious, and rests on a little-known fact about the criminal justice system – little-known to those of us outside the system, that is; for practitioners it’s the most open of secrets. This is the fact that nobody wants a trial. For the police, taking a case to court is laborious and time-consuming; what’s worse, it creates opportunities for the criminal (as they see it) to walk free, and for all their hard work to be wasted. The CPS are duty bound to chuck out the weak cases and those which it’s not in the public interest to pursue; when they’ve identified what they see as good, strong cases, the last thing they want is to risk an acquittal. Lawyers might be thought to have more of an interest in the courtroom show going on, but their position also makes them all the more aware of what a chancy business it can be – and their workload makes quick resolution a high priority. The answer to all these problems is a guilty plea. For the police and the CPS, a guilty plea means the job’s done: the criminal’s been charged, the criminal’s owned up, the criminal’s been sentenced. Defence lawyers want what’s in their client’s best interests, but what that means in practice is that they want to aim for – and they want their client to aim for – the best result they can realistically hope to achieve. In many cases, quite irrespective of questions of factual guilt, this may well mean advising a guilty plea: someone who is likely to be found guilty in a contested trial will be well advised to plead Guilty and gain a reduced sentence. At the same time, a guilty plea by the client will mean that the lawyer can save some time and get on to the next case, which will always be a consideration if time is limited – and time generally is limited when money is limited. Realistically, a system with cut-price, competitive-tendered, corporatised legal aid will be a system where much less time is spent on case preparation, much less scrutiny is given to materials that may hold vital evidence, and many more suspects and defendants are persuaded to plead Guilty – irrespective of their factual guilt or innocence. In 2000 Andrew Sanders and Richard Young described the criminal justice system as being characterised by “the mass production of guilty pleas”; if these reforms go through, they (and we) ain’t seen nothing yet.

Update 30/5/13: more on this from Francis FitzGibbon in the LRB, drawing out some unpleasant aspects of the proposals which I haven’t focused on (there are plenty to go round). There are many more links here.

These reforms are an assault on the legal profession and on everyone’s access to justice; they have no ethical justification and only the flimsiest justification in cost terms. They need to be stopped. Please sign the epetitions Save UK Justice petition; there’s also one from 38 Degrees. If you’ve got half an hour to spare, and especially if you’ve got anything you can cite as an organisational affiliation, please complete the Ministry of Justice’s online survey. Over the fold are some highlights from my answers. Continue reading

What’s the life of a man? (5/5)

In this post I’m moving away from A Debate over Rights to develop some thoughts inspired by a couple of papers by John Gardner. I’m not going far from the book, though – the first section of this post is relevant to the question of how we conceptualise rights, while the second relates to the question of the morality of law (which two of the book’s authors have been debating for some time).

1. Oh you shouldn’t do that

The opening paragraph of John Gardner’s 1996 paper ‘Discrimination as Injustice’ makes an interesting claim about torture – the wrongness of torture, in particular.

Reasons of justice are reasons for or against altering someone’s relative position. The word ‘relative’ is of the essence here. One may have reasons to alter someone’s position which do not make any essential reference to anyone else’s position. For example, the fact that a prisoner is being tortured is reason enough by itself to write letters of protest, with the aim of improving the prisoner’s treatment. Torture is inhumane. But isn’t torture also unjust? Doesn’t one also have a reason of justice to protest? Perhaps. As part of one’s protest, one might relate the position of the torture victim to the position of other people (other prisoners, people of different political views, the torturers themselves, the torture victim’s victims, the government, etc). In that case one may be trying to give a reason of justice for the torture to desist. It may buttress the reason of humanity. But of course it may also fail to do so. The authorities inflicting the torture may accurately reply, in some cases, that they are inflicting it with impeccable justice. Yet still, on grounds of its inhumanity, the torture should cease, and the protests should go on if it does not.

Gardner returned to this point more recently, in his 2011 paper ‘What is tort law for? Part 1. The place of corrective justice’.

Norms of justice are moral norms of a distinctive type. They are norms for tackling allocative moral questions, questions about who is to get how much of what. Some people think of all moral questions, or at least all moral questions relevant to politics and law, as allocative. But that is a mistake. As a rule, allocative questions are forced upon us only when people make competing claims to assignable goods. Many morally significant goods, including many relevant to politics and law, are either not competed for or not assignable. They include goods such as living in a peaceful world and not being tortured. … Of course it does not follow that there are no questions of justice that bear on the resort to torture or on the quest for a peaceful world. The point is only that many moral questions about the resort to torture and the quest for a peaceful world are not questions of justice. If, for example, we say of someone who was tortured by the secret police that her treatment was unjust, she might well say, if her moral sensitivity has been left intact, that this misses the point and marginalizes her grievance. She is not complaining that she was the wrong person to be picked out for torture, that she was a victim of some kind of misallocation by the secret police, that she of all people should not have been tortured. She is complaining that torture should not have been used at all, against anyone. Her complaint is one of barbarity, never mind any incidental injustices involved in it.

Torture is inhumane or barbaric – there are other words we could use, such as ‘degrading’ or ‘brutalising’; the core meaning has to do with attacking or invading another person’s humanity or personhood. Morally, it should stop, both universally and in any given case – but it is not, of itself, unjust. The moral question raised by torture isn’t a question of allocating it justly. One distribution of torture may be prima facie less just than another – the torture of randomly-stopped motorists would arouse more outrage than the torture of convicted rapists – but the less unjust distribution is not less immoral. A regime which reserved torture for people found guilty of heinous crimes would still be morally repugnant. Any torture – for anyone – is bad torture; in an absolute sense, any torture – for anyone – is as bad as any other torture.

Gardner sets torture alongside position-relative justice, and the freely competing subjects of law-governed society, to make a point about the limits of allocative justice. No distribution of torture (or of absolute poverty, polluted air, reduced life-expectancy, etc) is more just than any other. This is both because torture is not a good to be appropriately allocated and, more importantly, because the absence of torture is not an assignable good and hence not subject to constraints of scarcity. The question of who should be exposed to torture, instead of the current victim, doesn’t arise. There is no reason, in principle, why there should not be enough non-torture for everyone – and, here and now, it will always be better if our actions do not add any more people to those already suffering it.

But there’s a bit more going on here than that. There are any many ills whose absence is not an assignable good. To put it another way, there are any number of areas in which life could in principle be made better for everyone, or (to put it in less ambitious terms) where making life better for one person doesn’t require making it worse for another: health, clean air, peace, Pettit’s ‘dominion’ (a condition of resilient non-intererference’). Depriving someone of a non-assignable good is morally wrong, without necessarily being unjust. Allocative thinking in a negative form may well be involved in the infliction of such an ill: it may be motivated precisely by the desire to improve one’s own relative position at the expense of the victim. However, allocative questions do not have to be involved in their rectification: there is in principle no shortage of clean air, so the harm of air pollution is not rectified by ensuring that the air the company directors have to breathe is equally polluted.

Actions of this type are, by definition, characterised by a lack of respect for the equal entitlements of others and ourselves. Since they don’t profit the person carrying them out (also by definition), they tend to have a character of gratuitous or vindictive malice. The definition does not, however, imply that such acts are all inhumane or barbaric. If I jammed my neighbour’s TV reception so that they were unable to receive BBC 4, this would certainly be a maliciously cruel act, but it would be a stretch to classify it as barbarity. Indeed, much of what tends to fall under the heading of anti-social behaviour consists precisely of the deliberate or reckless deprivation of others of non-assignable goods – goods like the ability to sleep undisturbed by noise or to walk to the shops unperturbed by vandalism. Depriving others of non-assignable goods is a bad thing to do, and there is no situation in which we should not, morally, strive to do less of it – but it is not generally barbaric or inhumane.

Obviously torture makes a much better example for Gardner’s purposes than anti-social behaviour, both because it’s more extreme and because it’s commonly carried out by state authorities rather than by next-door neighbours. But I think the use of torture as an example also points to a different argument about justice and moral wrongs. Consider the first sentence quoted above: “Reasons of justice are reasons for or against altering someone’s relative position.” Norms of justice, Gardner argues in the second extract, are appropriate for tackling those questions which we face “when people make competing claims to assignable goods”. There’s a fundamental concept of personhood lurking here: a person, we can infer, is someone whose position (however defined) can be measured relative to the positions of other people; someone who can successfully claim assignable goods; someone whose self-interested claims can compete with those of other people; and someone whose disputes with other people can be adjudicated, and whose relative position can be altered, through the process of law, in other words by applying public norms using socially recognised procedures. And – at the risk of sewing a shirt onto a button – a law-governed society is a society composed of such individuals; and when we say ‘law’, we mean the kind of law through which such a society, and such individuals, can govern themselves. Clearly, the terms Gardner used would not work well in a feudally-ordered society, or a society run along religiously-validated caste lines, or the small-c communist society which was to follow the withering-away of the socialist state. We are talking about a society composed of formally equal individuals, differently endowed with personal resources, but each capable of making claims to assignable goods; entitled to expect that those claims will be respected; and entitled to attempt to vindicate them through the law.

We can see how this model of personhood relates to an allocative model of justice by looking at some scenarios. If my neighbour encroaches on my back garden, I may sue him and let the courts adjudicate our competing claims to the assignable good behind my house. If he takes our dispute personally and steals my property or assaults me, justice is involved in a different sense. Restitution will certainly be required, bringing allocative justice into play; however, my neighbour is also transgressing in a more serious way, improving his relative position by socially disallowed means. Theft and personal violence can be seen as ways of gaining an unfair advantage or nobbling the competition. (Gardner also suggests that criminal justice is allocative in the sense that it turns on the correct allocation of the status of criminal, which seems valid if rather ingenious.)

What about if my neighbour gets his revenge by a more indirect route, swearing at me in the street or disturbing my rest with loud music (or jamming my BBC 4 signal)? In such a case, given that the good in question is non-assignable, justice in Gardner’s terms may not be involved. Even so, the courts are likely to take the view that my entitlement to a non-assignable good has been needlessly infringed. (Not that this is a simple proposition, as we can see if we remember Hohfeld. If I am entitled to quiet nights – and why should I not be? there is, in principle, no shortage – does this mean that I hold a privilege as against all my neighbours, with a correlative duty on each of their parts not to disturb my rest? Can this be generalised, to cover mutual obligations among neighbours and entitlements to other forms of domestic tranquillity? I think this would be very problematic. Make these duty/privilege relationships unwaivable and everyone involved would be encumbered with a vast array of duties to abstain from potentially disturbing behaviours. Make them waivable, on the other hand, and the effect would be to destroy the universality apparently offered by the discourse of rights: all we would do would be to translate different individuals’ widely varying levels of entitlement and grievance into the language of waived and unwaived rights.)

Setting these broader considerations aside, the main point here is that deliberate deprivation of a non-assignable good can be grasped in terms of (allocative) justice, essentially by assimilating it to the ‘unfair advantage’ model associated with criminal justice. Indeed, we could rework the ‘unfair advantage’ model itself in terms of the deprivation of a non-assignable good. Laws criminalising physical violence, for instance, can be seen as protecting the non-assignable good of bodily integrity. In terms of acquisitive crime, if individuals A, B and C are all planning to bid for a valuable object at an auction, but are prevented from doing so when I steal it, what I have deprived them of is precisely the non-assignable good of a fair competition. A similar argument could be developed for the theft of an article on sale, or (less directly) of something in private possession. (We can see here, incidentally, how far removed the principles of allocative justice are from any redistributive model of social justice; in allocative terms, mere ownership of a resource at a given point cannot be unjust. Allocative justice and social justice must always be in tension, this side of the revolution.)

The principle here is that the autonomous, self-interested individuals on which our legal model is predicated need – and hence are entitled to – certain non-allocative goods if they are to play their competitive, law-governed part in society. One such good is the rule of law itself; others are bodily integrity and property rights. We can extend this model of entitlement – and hence of rights which can be vindicated in the courts and disputes which can be adjudicated according to law – to other non-assignable goods, including the good of eight hours’ sleep or an evening in front of BBC 4. In practice, many non-assignable goods are difficult to deal with in this way, as witness the vagaries of anti-social behaviour legislation: the baseline entitlement to a non-assignable good (such as peace and quiet), the level to which others are responsible for upholding that entitlement and the degree to which offending behaviour infringes it are often hard to establish. However, this is not to say that relationships between one person’s anti-social behaviour and another’s unmerited suffering can never be established; in practice they very often can. My neighbour is not going to be able to fly under the law’s radar by making sure that all he deprives me of is the non-assignable good of a good night’s sleep – any more than if it were the non-assignable good of an unbroken nose.

But what is my neighbour doing in the (mercifully, highly unlikely) case that he tortures me? Here, I think, a different relationship between justice and personhood obtains. If we think of bodily integrity as a non-assignable good (and certainly your good health does nothing to impair mine), then the victim of torture has been deprived of a non-assignable good, and may be unable to play a full part in society as a result – but, as stated, this is no less true of the victim of a random assault at pub closing time. We can say that torture is more likely to have traumatic effects, and this seems significant: certainly if we think of other experiences which are likely to produce trauma (rape, battlefield stress, partner abuse) the word ‘torture’ is never far away. Torture, then, is one of the things that inflict trauma, in a way that a beating in the pub car park generally isn’t. But why is this a significant distinction? The point, I think, is that torture is an attack on my personhood. Personal violence can often be understood in terms of enhancing the attacker’s relative position by depriving the victim of a non-assignable good, making it harder for that person to play a role in society. Pace Gardner, the immorality of torture is not grounded in its depriving the victim of a non-assignable good. Torture is not about enhancing the torturer’s position relative to the victim, even with respect to the non-assignable good of freedom from pain. Torture – and other forms of traumatic assault – can be seen as an attack, not on the victim’s capacity to function in society, but on the victim’s basic recognition as a person who might be entitled to any such capacity. More simply put, causing pain for no reason is not something one person does to another; torture thus situates the victim as less than a person. It’s interesting, in passing, that Mill characterised rape in very similar terms – “the lowest degradation of a human being, that of being made the instrument of an animal function contrary to her inclination”. To commit rape, in this line of thinking, is not to deny someone the good of freedom from rape, but to deny her the status of a person entitled to freedom from rape (and entitled, as a second-order right, to live her life on the basis of an assumed freedom from rape).

I think Gardner’s distinction between the immorality of torture and the wrongs which can be understood in terms of allocative justice is valid and powerful, although not quite in the way that he uses it. What I think it points to is the ways in which people can be reduced to something below the status of personhood – through torture or brutalisation, but also through homelessness, institutionalisation or becoming a refugee – and the powerlessness of the language of justice to address these very basic, fundamental wrongs. If the law is about justice, and justice is defined in terms of the correct adjudication of competing claims among autonomous individuals, how can it address – how can it fail to overlook – those people who are shut out of the game entirely, by being denied the status of person in the first place? And if the law can’t be invoked, what can?

2. Did you read the trespass notices, did you keep off the grass?

A bit more Gardner, from the 2011 paper on tort law. It’s quite a complicated thought, so the quote has to be on the long side:

Let’s allow … that tort law often helps to constitute the correctively just solution. What doesn’t follow is that tort law’s norm of corrective justice should not be evaluated as an instrument. On the contrary, to fulfill its morally constitutive role, tort law’s norm of corrective justice must be evaluated as an instrument. It must be evaluated as an instrument of improved conformity with the very moral norm that it helps to constitute. To see why, think about some other laws that are supposed to lend more determinacy to counterpart moral norms.

Quite apart from the law, for example, one has a moral obligation not to drive one’s car dangerously. The law attempts to make this obligation more determinate by, for example, setting up traffic lights, road markings, and speed limits. If the law does this with sound judgment, the proper application of the relevant moral norm is changed in the process. A manoeuvre that would not count as dangerous driving apart from the legal force of the lane markings at the mouth of the Lincoln Tunnel may well count as dangerous driving – and hence a breach of the moral norm forbidding dangerous driving – once the lane markings are in place. But this holds only if the law proceeds with sound judgment. It holds only if relying on the lane markings assists those who rely on them to avoid violating the original moral norm. If the mouth of the Lincoln Tunnel has profoundly confusing lane markings, reliance on which only serves to make road accidents more likely, failing to observe the lane markings is not a legally constituted way of driving dangerously. It is not immoral under the ‘dangerous driving’ heading. That is because, if the lane markings are profoundly confusing, driving according to the lane markings does not and would not help to reduce the incidence of dangerous driving.

The lesson of the case is simple. A legal norm cannot play its partly constitutive role in relation to a moral norm unless it also has some instrumental role to play in relation to the same moral norm, unless conformity with the legal norm would help to secure conformity with the moral norm of which the legal norm is supposed to be partly constitutive.

We start with the “moral obligation not to drive one’s car dangerously”. Laws – embodied in road markings – are put in place to support this moral norm. In doing so they also constitute it, make it “more determinate”: if road markings are being generally observed, failing to observe them may amount to driving dangerously in and of itself. However, road markings – and laws – may defeat their own purpose. If road markings are so confusing that attempting to rely on them would make the driver more dangerous to other road users rather than less, failing to observe them will not amount to driving dangerously. Similarly a law may instantiate a moral norm, but do so in such a “profoundly confusing” way that someone attempting to observe the law will be more likely to violate the norm. If this is the case, anyone committed to observing the norm will be best advised to disregard the law which purports to embody it. “A legal norm cannot play its partly constitutive role in relation to a moral norm unless it also has some instrumental role to play in relation to the same moral norm”: road markings put in place to help prevent dangerous driving may themselves define dangerous driving, but only if observing them actually leads to less dangerous driving.

Three relationships between moral norms and the law are envisaged here. In one, the law embodies and gives substance to a moral norm. In the second, the “proper application” of the norm is redefined by reference to the law, leading to a changed perception of the norm itself. The third is identical to the second, except that in this scenario the “proper application” of the norm has been redefined to the point where the law does not assist observation of the norm, and may even impede it.

There’s a problem here, relating to that word ‘instrumental’. It seems to me that there’s something inherently problematic in judging the success or effectiveness of laws in consequentialist terms – in terms of the outcomes which they produce or appear to produce. Firstly, assuming that the moral norm to which a law relates can be straightforwardly identified, there is the question of what should be counted as success. Bad road markings, in Gardner’s image, are those for which “driving according to the lane markings does not and would not help to reduce the incidence of dangerous driving”. However, it is a commonplace of debates on sentencing that the criminal law can modify behaviour – both individually and at the level of society – in many different ways; what type(s) of behaviour modification should be counted as success is an open question. Is a law prohibiting practice X at its most effective if the incidence of X-ing is reduced to zero? Or is the effectiveness of the law to be judged by the appropriateness of the punishment dealt out to X-ers, or by the opportunity it gives the community to express their repugnance at X-ing, or by the degree to which it raises awareness of the plight of victims of X-ers? A case could be made out for any of these, not all of which can be reconciled easily or at all. Secondly, it’s not always clear that the moral norm underlying a law can in fact be readily identified, still less the body of moral norms underlying the law (or an area of the law, such as the criminal law or the law of tort). The point here is not that the law is necessarily obscure, but that it is necessarily multivocal: it’s always possible for different and competing claims to be made as to the underlying moral rationale of a law or laws. This in turn raises the question of who is to do the identifying – and whether what they identify can change over time. Suppose that an elected government, facing a long-term economic depression, declares that poverty is a higher priority than crime, and that the law should generally not be used to impoverish poor offenders further. Or suppose that an elected government, facing a rise in crime figures, declares that the chief menace facing the country today is lawless behaviour by immigrants, asylum seekers, Travellers and people of no fixed abode, and that wrongdoing by individuals with no stake in a local community should be treated more harshly. Would these programmatic announcements represent authoritative clarifications of the body of moral norms instantiated by the law, the criminal law in particular? Would we expect the judiciary to ‘read down’ legislation to ensure compliance with these policy stances? If not, why not?

As in the case of torture considered as deprivation of a non-assignable good, I think Gardner’s analogy here pulls in a different direction from his stated argument. Road markings modify behaviour in a distinctive way and in a distinctive context, neither of which maps easily onto the law in general. To drive a vehicle is to put others at risk and accept the risk imposed by others; driving safely rather than dangerously benefits both the driver in question and other road users, in a way which is true of few other ‘virtues’ in driving. In effect, driving safely is the solution to the key co-ordination problem posed by collective road use – and it is a simple, readily available and generally acknowledged solution. Moreover, road markings constitute the moral norm of driving safely in a peculiarly authoritative way, which is perhaps only possible because the norm itself is so generally agreed. Road markings do not typically take the form of recommendations or advice; even to call them instructions would understate the force they have in practice. Rather than advise (or instruct) a driver to make certain choices, road markings typically operate by excluding certain choices altogether: they do not influence behaviour so much as structure it. As such, road markings are not open to be technically observed or observed in spirit or ingeniously circumvented: they are observed or not. Both the moral norm underlying road markings and the criteria for their observance are self-evident, in a way that is seldom true of the law.

Are we committed to abandoning any ‘instrumental’ evaluation of the law, or of individual laws, by reference to their outcome? This conclusion would be unfortunate; not only would it necessitate abandoning Gardner’s insight on the reflexive relationship between laws and norms, it would make it impossible to say whether any law was making the world a better place. A narrower reading of Gardner’s analogy may provide a solution. The situation in which road markings are “profoundly confusing”, such that “reliance on [them] only serves to make road accidents more likely”, can be interpreted in a number of different ways. The implication could be that the road markings are so confusing that it is effectively impossible for any one driver to follow them. Alternatively, it could mean that the markings can be followed, but only at so great a cost in time and attention as to force the driver to disregard other road users, so that observing the markings made his or her driving more rather than less dangerous. Lastly, it could mean that the markings are confusing in the sense of allowing widely diverse readings; markings which could plausibly be followed in multiple different ways would not make any one person’s driving more dangerous, but would greatly increase the likelihood of accidents.

All these forms of confusion can be readily envisaged as flaws of badly-made laws or legal systems: the law so complex and confusing that it is impossible to observe; the law whose demands are so extensive as to make it hard to carry on the activity the law is intended to regulate; the law whose vague or contradictory wording causes more social conflicts than it resolves. Any one of these flaws will make a law less effective, either in guiding individual behaviour or in resolving co-ordination problems; as a result, the moral norm underlying the law will be less effectively constituted in social practice, or (at worst) not constituted at all. However, these are all formal flaws: the failure of the law to constitute a moral norm can be inferred from the failure of the law as law. The realisation of the moral norm underlying the law does not need to be measured as an outcome – indeed, it is probably better if this is not attempted, for the reasons given above.

What I draw from Gardner’s analogy, in short, is a restatement of the intimate connection between morality and the formal virtues of law. To say that a law or body of laws is coherent, comprehensible and followable is not simply to say that it is well-made. A well-made law is also one which is well suited to embody a moral norm – and, crucially, to refine and specify the proper application of the norm in social practice, playing “[a] partly constitutive role in relation to a moral norm”. Whether or not the formal virtues of law have any moral content in themselves, I think this argument suggests that there is at least an irreducible affinity between law and morality.

All the spaces the text affords (4/5)

All clear? Sorry that last instalment was so long; hopefully this will come out a bit shorter.

Here’s a passage from Hillel Steiner’s contribution to A debate over rights which stopped me in my tracks when I read it: I had to put the book down to work out what was going on, which involved staring into space for most of the next half hour.

Suppose you and I conclude a contract which imposes a duty on you to make a payment to my brother: he is the third-party beneficiary of our agreement. According to the Will Theory, I am the only right-holder involved in this arrangement. … According to the Interest Theory, however, not only am I definitely a beneficiary but also my brother, as another beneficiary, is also a right-holder in respect of your duty. …

One apparent difficulty raised by this view is the danger of a proliferation of right-holders. For if my brother proposes to use that payment to purchse something, then it looks like his vendor is a fourth-party beneficiary of my contract with you. …

Bentham suggests that a person is properly included in the set of a duty’s beneficiaries only if the breach of that duty would be a sufficient condition of that person’s interests being damaged. This test obviously does supply the requisite surgical remedy by cutting my brother’s vendor (and her successive beneficiaries) out of that set.

But (Steiner continues) can Bentham’s ‘sufficient condition’ test be defended in its own right, setting aside the fact that it is useful for anyone who wants to uphold an Interest Theory of rights?

If I supply you with the security codes for a bank vault, I supply a necessary but insufficient condition of your robbing that vault. Our ordinary understanding of ‘interests’, it seems to me, is such that my action would none the less count as detrimental to whatever interests persons have in that vault’s not being robbed. And if that’s so, your failure to pay my brother does count as detrimental to the interests of his vendor, whatever Bentham may say to the contrary.

If our ordinary understanding of ‘interests’ is such that supplying you with the security codes for a bank vault counts as detrimental to whatever interests persons have in that vault’s not being robbed, then your failure to pay my brother does count as detrimental to the interests of his vendor. Ow. You may now stare into space.

Steiner’s responding to Kramer, who sets out Bentham’s test in the course of his exposition of the (or an) interest theory of rights. The set-up is essentially the same, but it’s worth paying attention to the way Kramer phrases it:

Suppose that X has contracted with Y for the payment of several thousand dollars by Y to Z. Suppose further that Z plans to spend all of her newly obtained money on some furniture from W‘s shop. In this scenario, W of course will have profited from Y‘s fulfilment of the contractual obligation. Now, given that the Interest Theory ascribes a right to Z – a right that is probably not enforceable and perhaps not waivable by Z – must it also ascribe a right to W?

Kramer describes Bentham’s test in these terms:

any person Z holds a right under a contract or norm if and only if a violation of a duty under the contract or norm can be established by simply showing that the duty-bearer has withheld a benefit from Z or has imposed some harm upon him. Proof of the duty-bearer’s withholding of a desirable thing from Z, or proof of the duty-bearer’s infliction of an undesirable state of affairs on Z, must in itself be a sufficient demonstration that the duty-bearer has not lived up to the demands of some requirement.

So, what about X and Y?

Bentham’s test will work very smoothly when applied to the scenario of the third-party-beneficiary contract. To prove that Y has breached his contractual duty to X, one need only show that Y has inexcusably failed to make the required payment to Z. In other words, one need only show that Z has undergone an unexcused detriment at the hands of Y. Establishing that fact is sufficient for a successful demonstration of Y‘s breach of duty. Hence, Y‘s duty to X under the contract is conjoined with a duty owed by Y to Z; Z, in turn, holds a right to be paid by Y. …

While a demonstration of Y‘s inexcusable withholding of the requisite payment from Z is sufficient to prove Y‘s breach of contract, the same cannot be said about a demonstration of Z‘s failure to buy furniture from W‘s shop. Z‘s abstention from any purchases cannot by itself be adduced as sufficient grounds for concluding that Y has declined to fulfil his contract with X.

Now that is clear.

Steiner’s suggestion that Kramer doesn’t justify Bentham’s test independently of its utility for the Interest Theory seems ungenerous at best; Kramer’s position, as in the third-party-beneficiary example, is that when it’s applied to a problem in interpreting rights, Bentham’s test works – which is to say, it gives legally unproblematic, logically defensible and intuitively plausible answers. Steiner also appears to have got Bentham’s test backwards – the point is not that “the breach of [the] duty would be a sufficient condition of that person’s interests being damaged”, but that damage to that person’s interest is sufficient to demonstrate breach of a duty. If effect B (e.g. damage to interests) is sufficient to demonstrate cause A (e.g. breach of duty), cause A is a necessary condition of effect B; it may or may not be a sufficient condition.

Setting this aside, let’s compare Steiner’s two scenarios. In one, I make a contract with Bertram to pay money to Charlotte; I renege on the contract, leaving Charlotte out of pocket and unable to buy goods from David. In the other, I am employed by Bertha as a security guard. I break my contract of employment, enabling a burglar (Eric) to rob Charles’s bank vault; this is to the detriment of both Charles and his depositors, including Dawn. Intuitively, Steiner argues, we would say that David does not have a case against me, but Dawn has. However, the interest theory (as qualified by Bentham’s test) would disqualify Dawn as well as David; this, for Steiner, suggests that either the test or the interest theory itself is flawed.

There are three main possibilities in interpreting these two scenarios, depending on how we read Steiner’s two claims: that they both involve an indirect victim who would be disqualified from any rightful claim according to Bentham’s test; and that the second of them involves a victim who should not be disqualified. The possible readings are:

  1. The two scenarios are comparable; the indirect victim should be disqualified in one case but not the other
  2. The indirect victim should be disqualified in one case but not the other, but Steiner is wrong to say that the two scenarios are comparable
  3. The two scenarios are comparable, but Steiner is wrong to say that the indirect victim should not be disqualified in the second case; in fact the indirect victim should be disqualified in both cases

If either reading 2 or reading 3 is sustained, Bentham’s test survives unscathed.

Let’s consider reading 2: that there are significant differences between the two scenarios. Is this the case? Certainly, where parties C and D are concerned, we’re dealing with a loss in one case and failure to achieve a gain in the other – and there’s a criminal offence in one case but not the other – but their positions as third and fourth parties are the same.

A second complicating factor is my degree of responsibility for the loss. As we have seen, Steiner suggested that in betraying the security codes I furnished Eric with “a necessary but insufficient condition” of robbing the vault. Steiner’s formulation is terse and potentially misleading – it is unlikely to be the case that my misappropriation of the codes is the only possible route to robbing the vault. The thinking here seems to be that the capacity to enter the vault undetected is a necessary condition of robbing it, and my giving Eric the codes is a sufficient condition for him to acquire that capacity. This is more elaborate than “A contracts with B to pay money to C”, but I’m not sure it’s much more elaborate. The only significant difference is that it requires the intervention of (yet) another party, in the form of Eric – and since his function is to commit a criminal offence rather than to do anything legitimate, his agency can be bracketed out. To clarify this point, suppose that I let Eric get in by leaving a skylight open, and he made off with some bolts of fine and expensive fabric. Now suppose that Eric decided not to go out that night because it was raining – and the rain got in through the open skylight and spoiled the fabric. Unless the wording of my contract as a security guard was unusually precise, nothing would change significantly between the two scenarios as regards my responsibilities, or my relationship with Bertha, Charles and Dawn.

Another complication – although in this case it’s a complication that positively helps Steiner’s case – is my indirect relationship with the bank. If I were employed directly by Charles, it would be arguable that the third-party beneficiaries of the contract were, precisely, Charles’s clients, meaning that the two scenarios were not comparable. I think this would be a confused line of reasoning; if I work in security for a bank, the benefit accrues directly to the bank and only indirectly to its clients. Indeed, it could be argued that the bank is its own third-party beneficiary: as a bank guard I contract with the deposit-holding wing of the bank to keep those deposits secure, the benefit accruing to the trading wing of the bank. In any case, assuming that I work for Bertha’s security company removes this asymmetry.

In short, reading 2 can’t be made to work; the two scenarios, although superficially very different, seem to be directly comparable. But is Steiner right to suggest that my actions in the second case were detrimental to the interests of Dawn, the indirect victim – and that this casts doubt on the utility of Bentham’s test? I’m not convinced that he is. What, after all, is Dawn’s case against the bank? Something turns, perhaps surprisingly, on the nature of Dawn’s loss. If Dawn is simply a depositor, it’s not clear that she has sustained any loss at all. Banks don’t hold our account balances in the form of stacks of notes – which is just as well, seeing that they don’t go into the bank in that form, by and large.  Money is supremely fungible. To say that I have a balance of £X is to say that the bank undertakes to pay me up to £X without asking for anything back; the bottom line of a bank statement is effectively a promissory note, a promise “to pay the bearer on demand”. It may conceivably be that Dawn urgently needs a sum of cash the day after the burglary, and that Eric has emptied the vault to the point where the bank is unable to make the payment, but this is a second-order problem relating to the relationship between Charles and Dawn; Dawn’s interests as an owner of property, some of it in the form of bank deposits, are not affected by the removal of folding money from the vault. Not only are the two scenarios are directly comparable, it seems; the relations between third and fourth parties (Charlotte and David, Charles and Dawn) are also directly comparable, and equally disconnected from the relationship between me, Bertram/Bertha and Charles/Charlotte. Whether Charles is able to carry on business as usual with Dawn is not determined by my breach of contract with Bertha, any more than whether Charlotte is able to spend money with David is determined by my breach of contract with Bertram.

It could be argued that this whole line of argument is misdirected, however. Steiner refers, not to bank depositors in general (whose interest in bank vaults not being robbed seems to be surprisingly limited), but to “whatever interests persons have in that vault’s not being robbed”. Let’s suppose, then, that Dawn does have an interest in the vault not being robbed, in the sense that it holds personal items which would be hard or impossible to replace. I stop carrying out my duty to Bertha, to benefit Charles by securing his premises, with the result that Dawn suffers a permanent loss (from Eric or possibly from bad weather). Surely this is a case of a genuine fourth-party beneficiary (or victim)? I don’t believe it is. The loss in this case is not in fact to Charles but, directly, to Dawn (or, at most, to both Charles and Dawn): I have permitted the removal or spoilage of Dawn’s property, giving my actions just as direct a relationship with Dawn’s interests as if the burglary had taken place at her house. Dawn has a claim against me to the extent that I have undertaken, explicitly or implicitly, to protect her property as well as Charles’s. And, I would argue, if I am placed in the position of protecting premises whose contents are both vulnerable and irreplaceable, I (or my employers) have made just such an undertaking and thereby acquired a liability to the property’s owners. To the extent that the third-party beneficiary of my contract with Bertha is Charles and not his depositors, it seems to me, it must be open to Charles to keep his depositors out of the picture as regards the relationship between him and Bertha (and, by extension, me). If it is not possible, Dawn and other depositors cease to be fourth parties and become third-party beneficiaries in their own right.

My reading may be challengeable, but it seems to me that Steiner’s attempted disproof of Bentham’s test has led us instead to a demonstration and restatement of the test. In a contract with a third-party beneficiary, fourth-party beneficiaries are those who have no right under the contract, as a detriment to them does not suffice to prove breach of the contract. If detriment does prove breach of the contract, the supposed fourth party is in fact an unanalysed third party.

As I said at the outset, I’m keeping an open mind about the Interest Theory of rights, at least in Kramer’s form; my temperamental inclination is more towards some form of Will Theory. But, to the extent that an Interest Theory requires to be delimited by Bentham’s test in some form, and to the extent that Steiner’s argument aimed to undermine Bentham’s test, I’d say that the Interest Theory is looking pretty good so far.

Next: some thoughts on two brief passages by John Gardner (one on tort and torture, the other on road markings and the minimum morality of law). After that I shall probably have to get back to work.

Turtles all the way up (3/5)

Let’s return to those second-order pairings – power :: liability and immunity :: disability (or if you prefer, to those second-order opposites: power/disability and liability/immunity).

1. So then I took my turn

Consider the criminal law: I have a duty to obey the law; we can suppose that this is correlative to a privilege held by the state, or an individual who holds an office enabling him or her to represent the state, e.g. my friendly local policeman, who I’ll call PC Yellow (for reasons which will become clear later). Now, what can Yellow and I do with this duty/privilege pairing – or rather, what can’t we do with it? The important thing that Yellow can’t do, I think, is waive it. Enforcement of the law can be selective and discretionary – you could say that the texture of the law is open enough for enforcement always to be discretionary to some extent. But it’s not open to Yellow to state that, as far as he has anything to say about it, I personally am free of any duty to obey the law; at least, if he does say that, it’s likely to cause legal trouble for him.

So I have a duty to obey the law, correlated to a privilege in the performance of that duty held by PC Yellow, and Yellow is unable to waive that privilege; in other words, Yellow has a disability of waiver, correlating to an immunity to waiver on my part. ‘Immunity’ may seem like an odd term in this context, but what we’re really talking about is one person altering another person’s legal standing: as a citizen subject to the rule of law I’m ‘immune’ to Yellow placing me above the law, but by the same token I’m immune to being placed below the law, subjected to arbitrary impositions and controls.

This is an example of the ‘second-order’ quality of powers (and disabilities) – the fact that they have effect on other jural relations. Confining myself for the time being to the power of waiver, any holder of a privilege (correlated with a duty) may have the power of waiver over the duty; more to the point, if the holder of the privilege doesn’t have a power of waiver, he or she must necessarily have a disability of waiver. A power of waiver is correlated with a liability to waiver on the part of the duty-holder; a disability of waiver is correlated with an immunity to waiver. Liberties as well as duties may be waived: the holder of a no-right (a lack of entitlement to constrain another’s actions in a particular area) may also have the power of waiver over the correlated liberty – and if the holder of the no-right does not have a power of waiver, he or she will necessarily have a disability of waiver.

At this point it gets (more) complicated. Duties and liberties both represent ways in which one person’s actions are subject to another’s control – or delimited lack of control; but the same can be said of liability and immunity, given that liability by definition involves the potential imposition of a duty. It follows that liabilities and immunities can also be waived – which is to say that they are logically associated, in any given case, with either  power of waiver or a disability of waiver.

We can see where this logic leads if we return to our criminal law example. So far we have one duty (to obey the law) and one privilege, plus one disability (Yellow’s incapacity to place me above the law) and one immunity. Now, can I waive my immunity[1]? In general terms, somebody who is immune to prosecution (for instance) may well have the power of waiving that immunity. Can I, in this case, waive the immunity[1] to being placed above (or beneath) the law? We’ll assume that it’s an unwaivable immunity – I can’t opt to be above the law even if I’d like to be. In this case, I hold a disability[2] of waiver of immunity to waiver, which correlates with an immunity[2] held by Yellow. Yellow in turn is unable to waive his immunity[2], giving him a disability[3] which correlates with an immunity[3] on my part – this third immunity being an immunity to waiver of immunity to waiver of immunity to waiver of duty. I am unable to waive this immunity[3], which means… but enough already; you get the gist.

Hillel Steiner, in his contribution to A Debate over Rights considers the criminal law in Hohfeldian terms and rapidly heads off in a different direction:

Like ordinary citizens, subordinate state officials are standardly disabled from waiving compliance with criminal law duties. Thus Yellow, a subordinate state official, holds a disability to waive a person’s duty not to rob. Yellow’s superior, let’s call her Black, therefore holds an immunity against Yellow’s doing so. Can Black waive her own immunity? What would be implied in denying her the power to do so? For Black’s immunity to be an unwaivable one she, in turn, would have to be encumbered with a disability: namely, the disability to waive Yellow’s disability. But if Black does hold such a disability then some still more superior official, call him Green, must hold an immunity correlative to Black’s disability.

We could, I suppose, continue indefinitely adding such epicycles to this line of reasoning by imagining that Green’s immunity too is unwaivable and identifying yet another even more superior official, Orange, who in turn holds the immunity correlative to Green’s thereby entailed disability. And so on. Let’s not do that. For the sufficiently unmistakable point here is that wherever we decide to stop this otherwise infinite regress, it can be stopped only by an immunity which is waivable. Unwaivable immunities (eventually!) entail waivable ones. So, yes, there can be unwaivable immunities. But what there can’t be are unwaivable immunities without there also being a waivable one. And the waiving of that one renders waivable whatever (otherwise unwaivable) immunity entails it.

A similar passage in Steiner’s 1994 book An Essay on Rights is discussed in Nigel Simmonds’s 1995 paper “The Analytical Foundations of Justice”; the argument reappears more or less unchanged in A Debate over Rights, albeit with a long footnote in response to Simmonds.

There are three things to say about Steiner’s argument here. One is that an Austinian command model of law seems to be creeping in here, with antinomies in the law resolved by reference upward. The thinking here seems to be that official A’s unwaivable subjection to the law is a disability held by official B, who in turn is bound by the effects of a disability held by official C, and so on up the chain until we reach Permanent Secretary Z, whose superior is the sovereign; the latter holds a position above the law, which enables him or her to waive Perm Sec Z’s disability, enabling Z in turn to set the underlings free. Some such model can explain how the rule of law is compatible with change in the law. Interestingly, you can turn the whole model upside down without much loss of explanatory power: official A is above the law relative to you and me, but holds a disability making him or her liable to the law relative to official B, who in turn is above the law relative to A but not to C… until we meet Perm Sec Z, directly subject to the sovereign, who in turn is subject to nobody but empowered to make the law. In this case we would have explained how official freedom of action is compatible with the rule of law. But I think we’re dealing in fables either way, and (more importantly) fables based on a very limited model of the law.

The second point to make – and one that’s made very clearly in Simmonds’s paper – is that Steiner is at best departing from Hohfeld. If we follow Hohfeld, there’s no reason to bring Yellow’s superior into the picture. Yellow’s disability vis-à-vis you or me does not correlate with an immunity held by his or her superior; it correlates, precisely, with an immunity held by you or me. The regress is not vertical but spiral: it consists not of Yellow referring his/her immunity up a Kafkaesque chain of superiors, but of me and Yellow running up an infinite pitch while passing the immunity ball back and forth between ourselves. There’s also something odd – and un-Hohfeldian – in Steiner’s apparent belief that the infinite regress could be stopped with a waivable immunity, i.e. by substituting a power for a disability. In Hohfeldian terms (as Simmonds points out) this would make no difference at all: if you did have the power to waive your immunity, this would correlate to a liability held by Yellow, who would in turn either be able or unable to waive that liability, and off we would go again.

On the other hand (and thirdly), I do think Steiner has identified a genuine problem. I’ll discuss it in the next section.

2. Enough! No more.

If we use Hohfeld’s model, the reasonably plain-language term “unwaivable” apparently can’t be defined without presuming an immunity to waiver of immunity to waiver of immunity to waiver, to say nothing of an immunity to waiver of that immunity, an immunity to waiver of that one, and so indefinitely on. Simmonds talks of these higher-order immunities and disabilities being ‘generated’ through inquiry, which I think is a useful way of looking at it; as if to say, the question of the waivability of the immunity to waive (etc) only arises once you ask it, but once asked it has to be answered. One can imagine MacCruiskeen in the Third Policeman being an expert in this field:

“Ah now. You’ll be talking about the immunity to waiver of the immunity of waiver.”

I supposed that I was. The policeman gave me a look of indescribable craftiness.

“That’s the cleverness of it, you see? I’m talking about the immunity to waiver of the immunity of waiver of the immunity of waiver. And I know what you’re wondering. Can that immunity be waived of its own self?”

I said nothing. The policeman’s ingenuity was rapidly ceasing to be a thing of fascination and becoming one of horror. MacCruiskeen caught my eye and – ye Gods! – winked.

“It cannot, and that’s the truth. There exists an immunity of waiver of the immunity of waiver of the immunity of waiver of the immunity of waiver. What do you think of that now?”

I agree with Steiner in finding this line of thinking troubling. Apart from anything else, it makes me wonder what would happen if I somehow acquired a liability to waiver of immunity to waiver of immunity to waiver of immunity to waiver of immunity to waiver of duty, as it were by accident – would that liability ripple down the chain, leaving me liable (under certain conditions) to waiver of duty? And then, how could the acquisition of some such nth-level liability be ruled out? In his footnote Steiner argues that “any form of infinite regress … cannot be part of anything describable as a normative (much less legal) system; there are necessarily insufficient persons and/or time to sustain it” (emphasis in original); the ‘spiral regress’ proposed by Simmonds resembles “a game whose rules include a stipulation that, at the end of any round, either player is entitled to demand a further round” – an instruction set so open to being prolonged that (pace Wittgenstein) it would be difficult to describe it as a game.

The ‘spiral regress’ thus raises two inter-related problems. On one hand, in specifying a second-order relation – a liability or immunity – it seems as if we can never stop. A liability which can be waived is a liability associated with a power of waiver, correlated with a liability to waiver; this second liability in turn may be waivable, in which case it in turn will be correlated with a second power of waiver… and so on. Different possibilities seem to open up at every stage, and the stages can multiply indefinitely. On the other hand, when interpreting second-order relations – working, as it were, from the outside in – the appearance of multiple, ramifying possibilities seems to collapse. To say that I can waive my immunity to waiver of an immunity to waiver of duty is to say that, in some circumstances, I am liable to waiver of an immunity to waiver of duty – which in turn equates to saying that I may be liable to waiver of duty. Depending on your standpoint, the multiple levels of secondary jural relations seem either to need specifying to infinite precision or to be logically equivalent – in which case they would not need to be specified at all.

As with Dworkin’s right not to be lied to, I think there are a number of possible solutions to this puzzle. One is what you might call the “and no returns” approach. This would see the immunity of waiver I enjoy relative to PC Yellow and the criminal law elaborated into a general immunity, encompassing that immunity and all derivable immunities: as if to say, I have an immunity relative to you in the area of waiving the duty of obeying the criminal law, I have a composite disability relative to you in the area of waiver of this immunity and in the area of waiver of any higher-order immunities deriving from it, and I have a further immunity relative to you as concerns the waiver of the composite immunity correlating to that composite disability. This is a single sentence, but otherwise it’s not much of an improvement: we haven’t succeeded in parcelling up all those higher-order immunities into a single over-arching immunity. And, even if we had done, the Hohfeldian question would still be lurking: this immunity – can it be waived or not?

A more fruitful approach, I think, would be to say that, while it’s always possible to inquire about the powers or disabilities associated with a particular duty, liberty, liability or immunity – and once asked the question can always be answered – it’s not generally necessary to make the inquiry. An infinite (spiral) regress is always possible, but it only comes into being when you start to explore it. And – importantly – traversing the spiral regress generated by considering powers of waiver is something to be done in the real world, under specifiable conditions, not as an abstract exercise. This “real world” stipulation, I think, wards off both the mise en abîme feared by Steiner and the risk of the spiral collapsing into undifferentiated logical equivalence. Here’s an illustration. Let us say that an eccentric relative leaves me a small annuity in his will, on the condition that I visit his grave every May Day. The duty, correlating to a privilege held by Uncle Albert’s executor, is not waivable; if there is no visit, the executor will not pay out. This disability[1] correlates to an immunity[1] on my part; my duty cannot be affected by any variation of the terms of the will by the executor. I am not able to waive this immunity; I have a disability[2] of waiver, correlating to an immunity[2] to waiver held by the executor. In other words, I cannot agree to any variation of the terms of the will which the executor puts forward, and if I offer to agree any such variation the executor may not entertain the offer – he or she is immune to the suggestion. Further, the executor is powerless to waive this immunity, and this disability[3] correlates to a further immunity[3] on my part: it is not open to the executor to propose that henceforth, under certain circumstances, suggestions of agreement to possible variations in the will’s terms will be entertained, nor is it open to me to take any notice of such a proposal.

Let’s suppose, then, that I acquire the power to waive this last immunity, and the executor’s correlative disability with it. In this situation I would let the executor know that, under certain circumstances (which I would specify), I would endorse the proposal that suggestions of agreement to possible variations in the will’s terms would be entertained. What happens now? If my earlier intuition were correct, and a power of waiver would simply propagate back down a chain of immunities and disabilities, I could proceed fairly directly to asking the executor if I could cut out this year’s May Day observance and take the money anyway. This clearly isn’t the case: my willingness to endorse the above proposal (under specified conditions) creates the conditions for the proposal to be made, but doesn’t generate it; that’s up to the executor. If he or she wishes to make such a proposal, and if my stated conditions are congenial, my waiver of my immunity[3] makes it possible for the executor in turn to waive his or her immunity[2] and offer to accept my agreement to possible future variations of the terms of the will, should I give it. However, the waiver of my immunity[3] does not make the waiver of the executor’s immunity[2] necessary – and if the executor does in fact decide to waive his or her immunity[2], this can be done with a whole new set of strings attached. If both sets of conditions are satisfied, and if I wish to do so, I can then agree to any variation of the terms of the will which the executor puts forward – if he or she decides to do so, and if any new conditions attached to this operation are met.

I think that working through this example demonstrates that both the fear of an infinite regress and the fear of collapse into logical equivalence are overstated. It’s true that the spiral of correlative immunities and disabilities (or liabilities and powers) can always be given one more twist: in fact, to say that I can waive my immunity[3] implies that I must have a power[4] to waive my immunity[3] to the waiver of an immunity[2] to the waiver of an immunity[1] to waiver of duty (and to say that I cannot would imply a disability[4], and so on). But once real world considerations are imported diminishing returns start to set in fairly quickly. It makes fairly good intuitive sense to talk about not being able to waive my immunity to any variation of my duty; it’s less obvious what a waiver of immunity to proposals that suggestions of agreement to possible variations in my duty might in future be entertained would look like, or when we might need one. The same logic applies when you look at the spiral from the outside in. While further twists of the spiral can always be generated, higher-order powers and immunities are always in a sense parasitic on lower-order ones, and can’t determine them: waiving a higher-order immunity may make it possible to waive the next one down, but does not make it necessary or likely. The spiral regress is populated by human actors with their own interests and bounded freedom of action; legal powers and disabilities constrain their actions but do not determine them.

3. Just step sideways

This is satisfactory as far as it goes, but I don’t think it gets to the heart of Steiner’s worry about Simmonds’ formulation. In my example, a stack of immunities and disabilities followed by a single power of waiver would not lead to the waiver of the first immunity automatically, regularly or (in practice) very often at all; in practice, it would be of very little moment whether the fifth or sixth twist of the spiral was populated by a disability or a power, given the extreme unlikelihood of any fifth- or sixth-level power of waiver actually enabling a first-level waiver. But this result – the waiver propagating back up the spiral – would be possible; the original immunity would not be unwaivable. To formulate an immunity which literally could not be waived, one would need to follow the spiral regress, essentially, to infinity: stopping at the 5th or 10th or 100th iteration would leave open the possibility that the waiver of an n-times-parasitic immunity would propagate all the way back up to the immunity which we originally wanted to protect.

I can see two possible approaches to solving this problem. One would be to appeal to the “real world” approach and dismiss the question as badly-framed. Hohfeld’s jural relations have their own logical precision and purity – the argument would run – but they are jural relations first and last, abstractions moulded to the proportions of real-world problems. A 100th iteration of immunity/disability ball-passing is unimaginable in a real situation; as Steiner says, we just haven’t got the time (although we have got the people – it only takes two). However, what this implies – contra Steiner – is that to treat the spiral regress as a mechanism capable of generating a hundred or more iterations is to get it wrong. An unwaivable immunity, on this logic, is an immunity which is effectively unwaivable: as if to say, “we agree that the next question will be answered in the negative, for as long as either of us has the motivation to ask the next question”. What this formulation brings out is how firmly Hohfeld’s relations are rooted in the model of relations between two people, and specifically agreements between two people. An unwaivable immunity is fundamentally an agreement; as such it cannot be enforced (“I demand that you make this immunity unwaivable by joining me in answering the next question in the negative”) unless it has first been agreed – in which case what is being enforced is not an agreement but observance of a prior agreement.

Another possible approach takes us back to the hierarchy of officials Steiner envisaged as an alternative to an infinite regress. Infinite regress is a besetting problem for theories of the law. Where, after all, do laws come from? Plainly, laws are made by authorities legally endowed with the power to make law. But how did this power arise? It must have been created by an act of law-making; this itself must have been carried out by some higher authority, itself endowed with the power to make law… and so implausibly on.

One way to avoid this infinite regress is to declare the regress to be finite, essentially capping it off at a fixed point. The command model enables us to cut the knot fairly crudely, simply declaring that the state – or the sovereign – is the final source of the law’s legitimacy and hence ultimately takes precedence. Hans Kelsen’s theory of the Grundnorm (‘basic norm’) can be seen as a similar manoeuvre on a more theoretical level. To quote a paper by Neil Duxbury (which, on a personal note, was the first work of legal theory I ever read):

Every legal norm ‘must be created by way of a special act … not of intellect but of will’ – the will of not just anybody, but of a person or body legally authorized to create the legal norm. That authority is itself conferred on that person or body by another legal norm .. which must itself be created by way of an act of will issuing from a person or body whose law-creating capacity is authorized by yet another legal norm. And so on, until we reach the basic norm. Whereas we can explain the reason for the validity of any legal norm by saying that it is attributable to the will of a person or body whose action is authorized by another legal norm, this explanation cannot be applied to the basic norm. The basic norm is not an enacted norm. ‘It must be presupposed,’ Kelsen elaborated in 1960, ‘because it cannot be “posited,” that is to say: created, by an authority whose competence would have to rest on a still higher norm. This final norm’s validity cannot be derived from a higher norm, the reason for its validity cannot be questioned.’ Because it is not an enacted norm, moreover, it ‘cannot be the meaning of an act of will’; rather, ‘it can only be the meaning of an act of thinking’ – the consequence of ‘presuppos[ing] in our juristic thinking the norm: “One ought to obey the prescriptions of the historically first constitution.”’

We can safely say that this is not entirely satisfactory, since Kelsen himself ultimately abandoned this line of thought (or, Duxbury argues, subverted it by developing tendencies within it); his final conclusion was that the basic norm should be thought of, not as a norm attributable to an act of thinking, but as a fictional norm attributable to the will of a fictional authority. This is a more subtle and interesting point than it looks – particularly when we take into account that, at least some of the time, Kelsen used ‘fictional’ to denote that something not only did not but could not exist, owing to internal contradictions – but I won’t investigate it here.

My current point is that both Kelsen’s basic norm and Austin’s sovereign – considered as capstones topping off an otherwise infinite regress – are arbitrary and unsatisfactory solutions, but solutions to a genuine problem. The problem is not, in Steiner’s terms, “a game whose rules include a stipulation that, at the end of any round, either player is entitled to demand a further round” – as we’ve seen in the context of Uncle Albert’s will, in practice this isn’t likely to cause any difficulties. The problem – both for the legitimacy of legal authorities, and for Simmonds’s unwaivable immunities – is a game in which, at the end of every round, the player must ask for another round. In both cases the question is unanswered at the end of each round, and it’s a question that needs an answer – whether it’s where the legitimacy of law-making authorities comes from or whether an immunity genuinely cannot be waived.

For the first of these cases of infinite regress, a much more satisfactory alternative is offered by Hart’s rule of recognition. Hart’s deceptively simple proposition is that any legal system includes a criterion by which laws can be recognised as ‘legal’, and which is acknowledged and upheld by the practices of officials within the system. Instead of referring upwards to a higher authority (itself dependent on a still higher authority), this approach effectively refers sideways. The question posed is not whether an enactment derived from a legitimate authority, but whether the authority in question was engaging in what was recognised as the activity of law-making within that legal system, including observation of the rules and criteria applicable within that system. The regress stops after a single step; the question of whether, for example, the constitution of the present law-making authority took place in accordance with the criteria then applicable is of purely historical interest – unless that question forms part of the criteria to be applied within the current system, in which case it will in effect already have been asked.

Can the infinite spiral regress associated with unwaivable immunities be dealt with similarly? I think perhaps it can. I suggested above that an effectively unwaivable immunity – as distinct from an immunity which is unwaivable by definition – could be modelled as an agreement that the immunity should be treated as unwaivable, generating a disability of waiver whose correlative immunity was in turn treated as unwaivable, and so on: “we agree that the next question will be answered in the negative, for as long as either of us has the motivation to ask the next question”. This is a “let’s not go there” model of unwaivable immunity, essentially. Perhaps all that is needed to formalise this practice – and bridge the gap between ‘effectively unwaivable’ and ‘unwaivable by definition’ – is a generally recognised rule, and a practice of classification through which it can be determined whether the rule applies. In other words, perhaps when we say that an immunity is unwaivable we are not saying that the derived nth-level immunity to waiver carries a disability of waiver correlative to an n+1th-level immunity, and so on; perhaps we are saying that we can rely on this immunity being treated as unwaivable (by the “let’s not go there” method), because we know that it falls into the class of immunities which we have an established and publicly recognised practice of treating as unwaivable. The infinite regress doesn’t evaporate quite as dramatically as in the previous example – it’s still meaningful to say that I have no power to waive immunity to changes in my standing relative to the criminal law, for instance, and to ask what such a power might look like. Navigating the spiral regress ceases to be necessary, though, which is the desired effect.

Does this class of immunities to be treated as unwaivable, or this practice of recognising immunities as unwaivable, correspond to anything in the real world? Fortunately for me (and for your patience), I think it does. One way of modelling the difference between the criminal law and most (all?) other branches of the law is, I think, precisely the unwaivable immunity with which we started: the immunity to being placed above (or below) the law. In other areas of the law – areas which approximate more closely to Hohfeld’s model of a two-person agreement – it is an open question whether a duty can be waived and (if not) whether the immunity correlative to the disability of waiver can itself be waived. In the criminal law the answer to both questions can only be No. This is one aspect of the uniformity of the criminal law, which can be considered one of its defining virtues: equal subjection to the criminal law can be seen as a civil right, a key element of citizenship.

This is speculative and fairly hasty stuff, but I think it’s worth thinking about. To recapitulate, if we did resolve the spiral regress in the way I’m suggesting, it would mean that there was at least one recognisable area of legal practice which operated on the basis of duties and derived immunities being unwaivable – and did so without inquiring too deeply into the waivability of higher-level immunities, as the answer could be assumed to be negative. The criminal law seems like a good candidate.

If you lie to me (2/5)

More about A debate over rights (Matthew Kramer, Nigel Simmonds and Hillel Steiner).

My route into legal theory was via Simmonds and Lon Fuller (or Pashukanis, Simmonds and Fuller to be precise). Matthew Kramer is very much on the other side of the debate when it comes to Hart and Fuller (when it comes to Kramer and Simmonds, come to that), so I have to say I wasn’t expecting to find his contribution to the book particularly congenial. As it turned out, I was pleasantly surprised by the power and cogency of his arguments. I read most of the book enthusiastically and at speed, but Kramer’s section in particular; I found myself muttering some of his conclusions out loud as I read them, not as an aid to comprehension but just because they were so well written. I’m not sure that I endorse his version of the interest theory of rights, but I did notice that Simmonds’s trenchant attacks on interest theories left it largely unscathed (as Simmonds in fact acknowledged). But, as I said, I’ll return to this question another time.

For now, here’s a passage from Ronald Dworkin which Kramer discusses briefly.

Dworkin:

In many cases … corresponding rights and duties are not correlative, but one is derivative from the other, and it makes a difference which is derivative from which. There is a difference between the idea that you have a duty not to lie to me because I have a right not to be lied to, and the idea that I have a right that you not lie to me because you have a duty not to tell lies. In the first case I justify a duty by calling attention to a right; if I intend any further justification it is the right that I must justify, and I cannot do so by calling attention to the duty. In the second case it is the other way around.

Of course, if rights (privileges) are by definition correlated with duties, it cannot make a difference “which is derivative from which”. So what was Dworkin talking about – is there any way to maintain Hohfeldian correlativity while maintaining that there is a significant difference between “I have a right not to be lied to [by you]” and “you have a duty not to tell lies [to me]“, such that information would be lost if we replaced one with the other?

Kramer suggests one line of interpretation:

Dworkin might be referring only to justificational correlativity (and derivativeness) rather than to analytical or existential correlativity (and derivativeness). That is, he might be referring to levels of priority within a justificatory argument only – and not to levels of priority within an analytical exposition or within a legal system. If so, then Dworkin is not proclaiming that Hohfeld’s Correlativity Axiom somehow fails to apply to the legal positions commended by duty-based and right-based theories.

On this reading, Dworkin is not claiming that the paired right and duty are non-correlated, but only that their relationship will be explained in different ways in different situations: as if to say, I might justify the physical challenge of an uphill slope by calling attention to the aesthetic quality of a downhill slope, or vice versa, and it makes a difference (to me and my interlocutors) which is derivative from which.

This is fair enough, but it seems a fairly meagre basis on which to claim that “[some] corresponding rights and duties are not correlative”. Can Dworkin’s argument be grounded more securely? I think it can, in two ways, although neither of them actually challenges Hohfeldian correlativity. In one case the difference which Dworkin detects between the right-not-to-be-lied-to and the duty-not-to-lie rests on linguistic imprecision. The additional information which, Dworkin argues, is carried by one formulation as compared to the other has actually been read into it; if the distinction had been spelt out, it would have become clear that the right and duty being discussed were not a logical pairing and the appearance of an exception from correlativity would have disappeared. In the other, the additional information needed to create the asymmetry derives from a particular reading of the concept of rights – one which is tenable and quite widely used, but is also quite incompatible with Hohfeld’s model.

The first way to salvage Dworkin’s argument rests on generality. Note Dworkin’s phrasing:

There is a difference between the idea that you have a duty not to lie to me because I have a right not to be lied to, and the idea that I have a right that you not lie to me because you have a duty not to tell lies.

Emphasis added. And this is true: there is a difference between the statement that I have a right not to be lied to by anyone, including you, and the statement that you have a duty not to tell lies to anyone, including me. But this says nothing about correlativity. In the (unlikely) case that I hold a privilege of not being lied to against any and every person I come into contact with, this correlates with a duty on the part of each of those individuals. My privilege against you lying to me is one element of this set of privileges against the world in general, and is precisely correlated with a duty on your part. A similar argument applies in the case where you are under a general duty not to lie. All Dworkin is saying, on this argument, is that general privileges don’t correlate with specific duties – which is to say, privileges and duties don’t correlate if they are imprecisely formulated.

Perhaps this wasn’t Dworkin’s reasoning; perhaps the line quoted above is just a case of hasty phrasing or unfortunate editing, and Dworkin’s thought would have been represented just as well (or better) by this formulation:

There is a difference between the idea that you have a duty not to lie to me because I have a right not to be lied to by you, and the idea that I have a right that you not lie to me because you have a duty not to tell lies to me.

Can we make this work, in analytical and not merely justificatory terms (there is a difference between the idea)? Only with difficulty, I think. But there is one angle worth looking at, which I’ll call the argument from confidence. Suppose that Dworkin’s argument implicitly concerned, not a “right not to be lied to”, but to a “right to the confident expectation of not being lied to”. Such a right would certainly seem to carry a derived (and not correlated) duty on others not to lie. If the duty not to lie came first, on the other hand, there would be no question of confident expectation: your duty not to lie to me gives me the right to feel, not confidence, but certainty that you will in fact not lie to me. There seems to be an asymmetry between the two pairings.

But what is this ‘confident expectation’, and why – in the teeth of the text – have I introduced it? I’m thinking now of a conception of rights which is far removed from the level of specificity on which Hohfeld’s model works so well. Suppose that when we invoke rights we’re talking about a kind of potentially universalisable framework of moral duties and privileges governing all social interactions: a framework which we (the community which recognises those rights) aspire to implement as a coherent whole, not least through the law, but which is always necessarily a work in progress. Suppose, in short, that we’re talking about something much closer to Fuller’s “morality of aspiration” than the “morality of duty”. The argument from generality is relevant here: in this situation, any right I might have not to be lied to by you would derive from a broader right not, in principle, to be lied to by anyone. But on this aspirational reading of rights, I would have no absolute right not to be lied to, by you or anyone else. I would have a right to the confident expectation of not being lied to (by anyone), by virtue of my membership of a community which upholds the right not to be lied to as an aspiration; at the same time, I would know that aspirations are not duties, and shortfalls from aspirations – and trade-offs between conflicting aspirations – are always a possibility.

This would not release you from any duty not to lie to me, however. My right to the confident expectation of not being lied to by you is only a duty-generating right in principle, all other things being equal, and only you can know in a given situation whether all other things are in fact equal. That said, if the description of the relationship between you and me is updated to include the line “Phil has the right to the confident expectation of not being lied to by you”, the way in which this new information should influence your behaviour is fairly clear. The associated duty is not correlated, but it derives directly – albeit that, in the unpredictable complexities of social life, it would not derive predictably or uniformly. In short, this way of conceptualising rights leads naturally to the asymmetry which Dworkin identifies in an apparently symmetrical pairing of right and duty.

Dworkin’s argument can be salvaged, then, by the simple expedient of stripping out the specificity, precision and duty-orientation of Hohfeld’s model and replacing it with a conception of rights based on a society-wide morality of aspiration, from which duties could be generated only unreliably and by derivation. In short, the ‘confident expectation’ reading would involve completely abandoning Hohfeld and using a schema which makes no claim to correlativity. The ‘generality’ reading rests on a verbal quibble and disappears if we use more precise phrasing, while Kramer’s own explanation – the ‘justification’ reading – would deprive Dworkin’s argument of the significance he seems to claim for it.

I think we can conclude that the project of reconciling Dworkin’s argument with Hohfeld’s framework has been tested to destruction.

Next: Simmonds and Steiner, and Simmonds on Steiner.

Whose pigs are these? (1/5)

Whose pigs are these?
Whose pigs are these?
They are John Potts’
I can tell them by their spots
And I found them in the vicarage garden
(Traditional)

I recently read A Debate over Rights: Philosophical Enquiries by Matthew Kramer, Nigel Simmonds and Hillel Steiner. I enjoyed it enormously. Over the next few days (or weeks) I’m going to post some thoughts which the book sparked off, focusing on points which puzzled me or seemed to need more developing. The next three posts will document some lines of thought which the book sparked off, and which I’ve been worrying at ever since. Post 5 will be devoted to some thoughts on a couple of essays by John Gardner, which don’t entirely belong with the other posts but need to be go somewhere. I’m not, at this stage, offering any kind of engagement with A Debate over Rights as a whole or with the authors’ main arguments; in fact there won’t be anything (for now) about Simmonds’ contribution, or very much about Kramer’s. I’ll re-read the book once I’ve finished the series, which will hopefully prompt some more thoughts.

This first post is going to provide a bit of theoretical background. The three essays making up A Debate over Rights all begin from the logical model of “jural relations” set out by the legal theorist Wesley Hohfeld (1879-1918). Before getting to the specifics, it’s important to note that all Hohfeld’s relations apply in principle between two people and in a particular field of action. For example, Jay’s desire to wear a hat might be protected from Kay’s attempts to thwart it by a right of non-interference – a “liberty” in Hohfeld’s terminology. In this example, this specific liberty would only make a very small and local contribution to Jay’s freedom of action: it would say nothing about anyone else’s ability to stop Jay wearing a hat, or about any non-hat-related coercion Kay might want to exercise. This is a fundamental point about Hohfeld’s scheme, which can have the unfortunate effect of making it seem weak or trivial in comparison with the grand canvases on which human rights discourse generally works. It’s anything but, as hopefully will become clear.

Hohfeld’s table of relations begins with two pairs of oppositions:

Privilege :: Duty

Liberty :: No-Right

Each pairing obtains, as I said above, between two people and in one sphere of action. Crucially, the elements of these pairings are correlated; where privilege exists on one side, duty exists on the other, and vice versa. If A has a duty towards B as regards x-ing, then B has a privilege in respect of A where x-ing is concerned. Say that you have promised the verger that you’ll unlock the church on Sunday morning. This is a useful thing to do and will benefit lots of people beside the verger, but your duty to do it is a duty towards the verger – just as the verger’s justified expectation that the church will be unlocked is a privilege with regard to you, not to the world (or the congregation) in general. (While Hohfeld’s model derives from and fits most naturally into the sphere of legal rights, it can be used productively to talk about purely moral rights, as in this case.) Some writers replace Hohfeld’s term ‘privilege’ with the more familiar ‘right’, or else ‘claim-right’; another way of formulating B’s privilege in this example is simply to say that B has a right to the fulfilment of A’s duty. (I don’t say B has a right to expect the fulfilment of A’s duty (although this would read more easily), for reasons that I’ll come on to later.)

It’s important to note that this is a relationship of logical, not practical, entailment. In other words, my duty to you in a given area is not something that needs to be done in order to fulfil your privilege over me in that area, which would otherwise exist unfulfilled or in a kind of potential state. My duty is the relationship between us (in that area), viewed from my perspective; your privilege is that relationship as it looks from your standpoint. This is the case even if the relationship was created for the sake of creating the duty, without any thought to the privilege (or, conceivably, vice versa). In Kramer’s formulation, someone who constructs an uphill slope in their garden will necessarily build a downhill slope as well, even if their sole reason for doing so was the aesthetic effect of an uphill gradient.

As for the second pairing, here we enter the territory of rights of non-interference. If A has a liberty towards B as regards x-ing, then B has no right to prevent A from x-ing – in Hohfeld’s (only slightly different) terms, B has a ‘no-right‘ towards A in that area. Many of the entitlements we usually refer to as rights are liberties in Hohfeld’s terms: if I have a right to free speech, this means precisely that I hold a liberty to speak, as against others who might interfere (principally the government). Liberties often take much more specific forms: someone may have a ‘right’ to set up in business (in the form of liberties held against the local authority, the police etc) but not have any ‘right’ to carry on that business without interference (in the form of liberties held against local rivals who might undercut the business, customers who might go elsewhere, employees who might go on strike, etc).

There are diagonal as well as horizontal relationships within the table. The opposite of a privilege is a no-right; the opposite of a liberty is a duty. These are logical opposites, such that – in any given social relationship and sphere of action – one party has either a privilege or a no-right towards the other, and either a liberty or a duty.

Two further pairings can be dealt with more briefly. These follow the same basic structure and apply it, reflexively, to the granting and varying of rights.

Power :: Liability

Immunity :: Disability

If A can alter B’s legal standing in respect of area z, A has a power over B in area z – and, by the same token, B has a liability in respect of A in that area. Equally, if A is unable to alter B’s legal standing in respect of area z, B has an immunity in respect of A in area z – and A has a disability in respect of B in that area. Powers are the opposite of disabilities; liabilities are the opposite of immunities.

As noted above, Hohfeld’s opposites – the diagonal pairings – are logical opposites. I found it useful to think of them as dichotomous variables: for any given social relationship and any given sphere of activity, you either have a liberty or a duty towards the other party, and (at the same time) either have a privilege or a no-right. The members of the liberty/duty and privilege/no-right pairings are mutually exclusive and jointly exhaustive: there is no social relationship and no field of activity to which they don’t apply. There’s no ‘off’ position, in other words. The man I happen to sit next to on the bus has no influence on my later, independent choice of sandwich for lunch – but this is not to say that there is no Hohfeldian relation between person A (man on bus) and person B (Phil) in area y (sandwich choice). Rather, there is a relation of liberty (on my part) and no-right (on his).

The exhaustiveness of Hohfeld’s opposites has some particularly interesting – and easily overlooked – effects when we start to put the two pairings together. Some privileges, and some liberties, can be waived: the verger may let me have a lie-in from time to time; I may let my colleagues put in a collective sandwich order and override my personal preferences for a while. In the first case, where I have a duty towards the verger in the matter of unlocking the church, the verger has a power (of waiver) over that duty – and I have a liability, in the sense that the duty may be altered without my say-so. The second case is more complex. If I have a liberty (towards my colleagues) in the matter of sandwich choice, they by the same token have a no-right towards me; strictly speaking, it’s that no-right which I have the power to waive. Again, powers correlate with liabilities: my colleagues are under a liability, in the sense that their exclusion from input into my sandwich choice may be revoked by me, and not by them.

But remember: the opposites are dichotomous, and dichotomies are jointly exhaustive. Anyone who is owed a duty which cannot be waived does not hold a power of waiver, correlating with a liability on the part of the duty-holder. Instead, they hold a disability (of waiver), which correlates to an immunity from having the duty waived on the part of the duty-holder. There is no sphere of activity and no social relationship which cannot characterised by either privilege or no-right, and by either duty or liberty. And there is no relationship – of privilege to duty or of liberty to no-right – which is not further characterised by either power (to waive or vary) or disability, and by either liability or immunity. John Potts enjoys the privilege of ownership of some spotted pigs, and the liberty of non-interference with that ownership, as against the no-right and duty not to interfere of you, me and the vicar; he also has either the liberty to graze them in the vicarage garden or (more probably) the duty to refrain from doing so, combined with a privilege or (again, more probably) a no-right over the vicar himself in the matter of grazing rights. Viewed in this light, so far from being limited to minute and artificial examples (Kay’s duty not to prevent Jay from wearing a hat), Hohfeld’s correlatives and opposites seem to describe the entire social world – albeit that they describe it in impossibly minute terms, a map even bigger than the territory.

One final point, for now: one of the key points of disagreement between Kramer and Simmonds – indeed, one of the key points at stake in the book’s debate over rights – concerns how to conceptualise these xs, ys and zs which make the Hohfeldian model tick. I may have a liberty towards you in a given area, coupled with an immunity as regards any attempt on your part to waive your correlative no-right – but what are these ‘areas’ that we’re talking about? Are they interests, and if so how do these interests work? If they have the cast-iron, logical-entailment structure of a Hohfeldian correlative pairing, how can they be balanced against other interests? If they aren’t balanced against other interests – if they’re a set of fundamental interests which take absolute priority over other, more fungible interests – then what subset of interests can they possibly be? Alternatively, are Hohfeldian rights a way of building a Kantian model of the will of the individual, expressed freely and without any necessary conflict with other individual wills – and if so how do we make them work in the real world?

I have no idea how to answer any of these questions – not that they’re easy questions from anyone’s perspective. The contrast between ‘interest theory’ and ‘will theory’ models of rights is a major bone of contention both between the authors and among the other writers discussed in the book; I’ll come back to it myself another time (probably after I’ve re-read the book).

He’ll drop you where you stand

I can’t help wondering where, exactly, Norm is going with this one (quote reordered but not reworded).

Israel’s killing of Ahmed Yassin:

UN Secretary-General Kofi Annan: “I condemn the targeted assassination of Ahmed Yassin. Such actions are not only contrary to international law but they do not help the search for a peaceful solution.”

EU foreign policy chief Javier Solana, described the assassination as “very, very bad news”.

British Foreign Secretary Jack Straw said: “Israel is not entitled to go in for this kind of unlawful killing and we condemn it. It is unacceptable, it is unjustified and it is very unlikely to achieve its objectives.”

Killing Bin Laden:

UN Secretary-General Ban Ki-moon hailed Osama bin Laden’s death as a key turning point in the struggle against terrorism.

EU foreign policy chief Catherine Ashton said: “I would like to congratulate the U.S., pay tribute to its determination and efficiency in reducing the threat posed by terrorists and underline the close cooperation between the EU and U.S. in the fight against terrorism.”

Prime Minister David Cameron said that bin Laden’s death would “bring great relief” around the world.

And so on (the page linked also cites reactions from France, Norway, Brazil, Japan and the Vatican).

We could consider explanations for this apparent disparity that Norm and his source overlook. Most obviously, bin Laden was an effectively stateless individual who was waging (or perhaps had waged) a transnational campaign of political violence against multiple states. There was no obvious single cause around which negotiations or a peace process might have been initiated; no internationally recognised grievance on which bin Laden was recognised as a spokesman; no mass movement to demand negotations with bin Laden; and no actual or aspiring state-level actor in whose name bin Laden could have negotiated. The contrast with Ahmed Yassin is glaring. Whatever else he did, Yassin was an actor in the struggle for Palestinian statehood – a cause that most of the world recognises as worthy, and which most of the world hopes can be resolved peacefully. Some enemies, in other words, are better qualified to be shot down like dogs than others. Moreover, sometimes shooting down your enemies like dogs is just bad politics, exacerbating a situation that wiser tactics could ameliorate (“It is unacceptable, it is unjustified and it is very unlikely to achieve its objectives.”) There’s also a third explanation, which I’m afraid is probably just as significant as the other two: the world is wearily accustomed to the US going pretty much where it wants and doing pretty much what it wants, and doesn’t even bother to protest about it. However, this licence seems only to extend to one nation at a time. We could call that inconsistency, or we could just be thankful for small mercies.

But let’s, for the sake of argument, scrub out all those objections to the equivalence Norm is proposing here; let’s just say that in 2004 one country rubbed out an evil terrorist mastermind, in 2011 another country bumped off another evil terrorist mastermind, and the world’s reactions were strikingly different. What’s the implication? When we heard about the assassination of Yassin, should we have rejoiced at that news? And what’s the implication of that? Norm has always denounced the use of double standards where Israel is concerned, so presumably the lesson of Abbottabad is that it should be open season for evil terrorist masterminds wherever they may be. State see terrorist, state kill terrorist. No man, no problem. And if people say it’s unjust, or it’s not lawful, or it’s just bad politics… oh, please

Terrorism is scary stuff – the clue’s in the name – but it’s never worried me as much as counter-terrorism, and this argument of Norm’s reminds me of why that is. As it happens, I do draw a lesson from the Abbottabad execution, if that’s what it was (if it’s true that four people were killed, only one of whom had drawn a weapon, a better word might be ‘massacre’). I haven’t bothered blogging about it before now, partly because it seemed pretty obvious but mainly because Dave had said it already. But maybe it could do with saying again: state-sponsored assassination is wrong. State lawlessness is not a protection against individual lawlessness: rather, it’s far more dangerous, partly because of the vastly greater resources that the state has at its disposal and partly because a law-governed society depends on the state itself being governed by law (as Jeremy Waldron has argued, the rule of law is prior to the concept of law).

If you subscribe to a kind of extreme Hobbesian view of the state, in which the sovereign has both the power to make law and the power of life and death, so that a correctly targeted state killing must be legal – it’s his state, his rules – then you shouldn’t have any problem with the death of Sheikh Yassin, or Osama bin Laden, or for that matter Mairead Farrell, Sean Savage and Danny McCann. I didn’t think Norm held that view, though, and – more to the point – I can’t see any good reason why anyone would. So where is that argument going?

The barren weeks, the amnesiac years

Apparently it will be two years before we find out what the Labour Party stands for in 2011 (or rather 2013). In the mean time, presumably, the Shadow Cabinet can just make it up as they go along – I mean, now that Blairism doesn’t work any more, what else could they do? It’s not as if they could learn anything from the history of the Labour Party before Blair. Or perhaps they’re just working on the basis of waiting for the government to announce something so that they can say “and we’re against that!”.

That’s certainly the kindest explanation for this appalling story.

Following a ruling by the European Court of Human Rights, ministers propose to lift the ban on votes for prisoners for those serving jail sentences of up to four years. Although David Cameron stressed he was doing so reluctantly, the Liberal Democrats have long argued that prisoners should not be denied the right to vote. Labour delayed a decision on implementing the Court’s ruling before last May’s election but is now ready to form an unlikely alliance with Tory MPs in an attempt to force a U-turn. More than 40 Tories are said to oppose the Government’s plan – potentially enough to defeat it with the backing of the Labour Opposition. Labour wants the right to vote limited to inmates serving up to one year in jail. That would restrict the number to 8,096 of the 83,000 people in Britain’s jails

As it happens, the ECHR isn’t demanding that all prisoners in British jails be given the vote; the court’s ruling allows for national governments to take a view on withdrawing the franchise from particular categories of prisoner. What it has demanded – with the force of law, or at least the force of severe diplomatic embarrassment – is that the blanket ban we’ve had since 1840 be replaced by some kind of detailed policy with some kind of justification. (I doubt that the ECHR would find Labour’s mean-spirited amendment satisfactory – it seems designed to target the category of “won’t be in very long, probably didn’t do anything too bad, and best of all there aren’t very many of them”. But committing the government to yet another position the ECHR won’t accept, thus booting the question into the long grass for another year or so, may well be the object of the exercise.)

Either way – whether this is a wrecking amendment or just a vindictive attempt to weaken the legislation – Labour seem determined to attack the Tories from the Right:

Sadiq Khan, the shadow Justice Secretary, expressed concern that more than 28,000 inmates would be allowed the vote under the Coalition’s proposals. He said: “This is a slap in the face for victims of crime. We have already seen the Conservative-led government break their promise on knife crime. Now they are also giving thousands of offenders the vote.”

The Tory manifesto promised to bring in mandatory custodial sentences for anyone found carrying a knife (yes, carrying). It’s an insanely draconian policy, which they can never seriously have intended to implement. As for the notion that victims will in some way be adversely affected by ‘their’ offender having the vote – how? why? If this is what victims of crime want, then victims of crime are wrong. Actually I doubt that victims of crime want any such thing; left to his own devices, I doubt that Sadiq Khan would come up with this stuff either. What we’re seeing here is (in Andrew Ashworth’s phrase) “victims in the service of severity” – and, what’s worse, severity adopted cynically, in the service of winning votes (from the kind of people who like the idea of prisoners suffering).

Tory MPs also reacted angrily to the disclosure and signalled their willingness to work with Labour on the issue. Philip Davies, Tory MP for Shipley, said: “I have yet to find anyone on our benches who agrees with it. It is totally unacceptable to allow prisoners the vote. The whole point of going to prison is that you lose your liberty; one of your liberties is the freedom to vote.”

“Disclosure”, by jingo. That would be the shock news that the European Court of Human Rights found against Britain’s blanket denial of the vote to prisoners in 2005, since which time precisely nothing has been done to bring Britain’s laws in line with its international obligations. If anything, the news is even older than that: the ECHR’s ruling is entirely in line with the common-law position, as expressed by Lord Wilberforce in 1982. Ruling on a case in which a prison governor claimed to have the right to read prisoners’ mail – essentially on the grounds that it was his house and his rules – Wilberforce found against the governor and stated:

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

“Expressly or by necessary implication”. Contra the repulsive Davies, this means that a prisoner no more forfeits his right to vote than he forfeits, say, his right to wear clothing in public or his right to speak without being spoken to – or, for that matter, his right to sanitation (yes, the fine old British tradition of slopping-out was found to constitute a breach of human rights law in 2004, and about time too). Certainly it is open to a judge when passing sentence to stipulate that conviction for a particular offence – or type of offence – should lead to forfeiture of the vote; it is even open to Parliament to legislate along those lines. But the blanket denial of the vote to prisoners is almost impossible to bring into concordance with Wilberforce’s statement.

And it’s straightforwardly impossible to reconcile with the ECHR’s 2005 judgment – which is where we came in. The last government’s effective refusal to legislate in line with the ECHR’s judgment, dragging its feet for all of five years, was shameful: it contrasts very unfavourably with the actions of the governments of Ireland and Cyprus, both of which introduced votes for prisoners in 2006. The coalition’s grudging acknowledgment of the reality of the situation is to be welcomed (grudgingly). For a Labour opposition (a Labour opposition, to misquote Neil Kinnock) to campaign against it, lining up with troglodytes like Davies, is really disgusting. It seems that Miliband and his circle are still doing politics the same old way: a nervy attention to the Sun and the Mail from day to day, combined with a kind of dogmatic ignorance of every liberal or socialist principle their party has ever stood for. Why, this is New Labour, nor are we out of it.

Heave a sigh

How long do you leave a blog before you stop reading it, or take it out of your RSS feed? I currently follow 29 blogs; some (e.g.) I’m willing to leave for weeks or months between posts, because when they do post I know it’ll be worth reading. (A new post from Luke would be appreciated, though.)

But I’m saying goodbye to Splintered Sunrise. The blog hasn’t been updated since September the 2nd, and it seems unlikely that it will be now. As you who read this may well already know, something a bit odd happened to Splinty’s blog a few months before it shut down. Like most of his regular commenters, I saw Splinty firstly as a socialist blogger and secondly as a good source on what was going on in Ireland; his occasional polemics against the National Secular Society were just some of the padding that came with the package, of no more significance than his appalling taste in music or his occasional lapses into Cyrillic. Besides, I am myself the son of a preacher man (well, a lay reader man), and I didn’t have much of a problem with the occasional argument to the effect of “these militant secularists don’t understand how religious people think”. Some time around mid-year, this type of argument started to dominate Splinty’s blog; at the same time, there was a shift in the claims being made. We began to read posts that could be summed up as “these unbelievers don’t understand how Catholics think”, which had me squirming a little – and then “these so-called liberals don’t understand how true Catholics think”, which had me looking for the exit. And then, suddenly, silence fell. My immediate assumption was that Splinty had realised that he was espousing two radically different bodies of ideas – or, at least, that he was talking to two radically different audiences – and had retired, in a certain amount of bemusement, to work out how to reconcile them. This theory got a bit of a knock from the discovery that Splinty had resurfaced on the one-line Web, where he continues to post like the proverbial bandit – and never gets the opportunity to set out his views at length, or gets challenged to justify them in detail. So I guess that’s a happy ending of sorts.

I’m also going to stop checking on Rob Knox’s intermittent but frequently brilliant blog Law and Disorder (even the URL is an education). Rob’s last post on that blog reads, in part: “So, anyway, I have made a New Year’s resolution to try and post much more frequently, we’ll see if this actually comes about”. It’s dated 18th January 2010. I look forward to reading the book on international law that he will indubitably end up writing.

On the other hand, I am going to start reading Between the Hammer and the Anvil (which I currently catch up on every couple of weeks, very much the way I read XKCD) and Bad Conscience (which I read when it’s linked from Stumbling and Mumbling, i.e. quite often).

Finally, does anyone know what’s happened to Liam Mac Uaid’s blog? It’s currently coming up as “deleted”, which is surprising and a bit alarming. I’m hoping it will resurface in another form before too long (sectarian joke about relaunching with new name and slightly larger membership goes here).

It’s over there

A quick post to register a rather striking piece of news (via), which didn’t seem to get much notice in the British media. First, here’s the complete text of a piece on torture from the January 2008 Washington Monthly:

According to the latest polls, two-thirds of the American public believes that torturing suspected terrorists to gain important information is justified in some circumstances. How did we transform from champions of human dignity and individual rights into a nation of armchair torturers? One word: fear.

Fear is blinding, hateful, and vengeful. It makes the end justify the means. And why not? If torture can stop the next terrorist attack, the next suicide bomber, then what’s wrong with a little waterboarding or electric shock?

The simple answer is the rule of law. Our Constitution defines the rules that guide our nation. It was drafted by those who looked around the world of the eighteenth century and saw persecution, torture, and other crimes against humanity and believed that America could be better than that. This new nation would recognize that every individual has an inherent right to personal dignity, to justice, to freedom from cruel and unusual punishment.

We have preached these values to the world. We have made clear that there are certain lines Americans will not cross because we respect the dignity of every human being. That pledge was written into the oath of office given to every president, “to preserve, protect, and defend the Constitution.” It’s what is supposed to make our leaders different from every tyrant, dictator, or despot. We are sworn to govern by the rule of law, not by brute force.

We cannot simply suspend these beliefs in the name of national security. Those who support torture may believe that we can abuse captives in certain select circumstances and still be true to our values. But that is a false compromise. We either believe in the dignity of the individual, the rule of law, and the prohibition of cruel and unusual punishment, or we don’t. There is no middle ground.

We cannot and we must not use torture under any circumstances. We are better than that.
- Leon E. Panetta

This kind of self-congratulatory American visionary liberalism sets my teeth on edge, I have to admit – “We are better than that”? Really? – but at least here it’s being invoked against the barbarities of power, not as a cover for them. And these particular barbarities have flourished exuberantly over the last seven years, so it’s refreshing to hear any sign of unyielding opposition to them from within the US establishment, however syrupy the rhetoric.

Anyway, about that news story. From the 5th January New York Times:

President-elect Barack Obama has selected Leon E. Panetta, the former congressman and White House chief of staff, to take over the Central Intelligence Agency

Obama’s going to let us down – oh, how he’s going to let us down. (I’m particularly not looking forward to his first statement on Gaza.) But this is seriously good news – better than I’d ever have expected.

“We cannot and we must not use torture under any circumstances. We are better than that.”

Leon Panetta, the next head of the CIA.

Update 17/1

Obama, 11/1:

Vice President Cheney I think continues to defend what he calls extraordinary measures or procedures when it comes to interrogations and from my view waterboarding is torture. I have said that under my administration we will not torture

our United States military is under fire and has huge stakes in getting good intelligence. And if our top army commanders feel comfortable with interrogation techniques that are squarely within the boundaries of rule of law, our constitution and international standards, then those are things that we should be able to (INAUDIBLE)

Perhaps more significantly, Bush administration appointee Susan Crawford, 14/1:

“We tortured [Mohammed al-]Qahtani,” said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. “His treatment met the legal definition of torture. And that’s why I did not refer the case [for prosecution]“.

Something’s changing out there. The fundamental point is that there is a difference between interrogation and torture: interrogation is about extracting information, but torture is about breaking people. And when a person’s broken they can’t give reliable testimony. This, I think, made Guantánamo Bay too much of an anomaly for even Bush’s attack lawyers to assimilate into legal normality. Give waterboarding – or stress positions, or hooding and white noise in a white room – what names you like, there is still such a thing as torture; it’s defined by its effects, and its key effect is to nullify a suspect’s legal personhood. Under Bush and Cheney that was a small price to pay: it also made terrorist suspects safe, after all, and it might produce some usable intelligence along the way; the rest was just a question of human warehousing. For Obama – as for ‘lifelong Republican’ Crawford, and doubtless many more like her – it’s just not how it’s done.

I like that ‘(INAUDIBLE)’, though.

Don’t let freedom fade

Belatedly, a bit more Bingham. (Updated 30/11.) And a question: what, exactly, was Martin Kettle saying in this column?

What’s most remarkable about the column is that Kettle doesn’t actually contest the argument Bingham put forward. Instead, there’s a steady drip-feed of insinuations that Bingham’s speech shouldn’t be taken seriously, whatever it was he actually said (he’s retired! the speech was provocative! Peter Goldsmith disagrees with it!). Then there’s a suggestion that it doesn’t have any bearing on the real world:

There are, moreover, two important practical objections to Bingham’s view. The first, as he acknowledged in his lecture, is that international law is hard to enforce. Its rules are regularly honoured in the breach, not least but not only by the US, which has been involved in some 40 military actions against sovereign states in the past quarter century. The second is that, in practice, the security council may be incapable of authorising otherwise legally justifiable military action because China or Russia will use their veto to prevent it. In practice, therefore, Bingham seems to be in danger of arguing that lawful military action is military action that Vladimir Putin permits – a position that would make international law an ass.

The first of these points can be quickly disposed of; the argument seems to be that the statement “the US has violated international law” is invalidated by the observation that the US has repeatedly violated international law in the past. This objection only really makes sense if we believe that the way lawyers think about international law should be conditioned by the way the Reagan and Bush governments have thought about it. More generally, it’s quite possible to argue that international law is meaningless, powerless or irrelevant, but those arguments aren’t usable against any particular statement within the field of international law. If international law is irrelevant, Bingham’s entire speech is irrelevant and doesn’t deserve to be taken seriously. There are traces of this Know-Nothing position in Kettle’s column, notably in the series of assorted jeers which serve as an introduction, but clearly it’s not a position he’s willing to commit himself to.

The second point seems a bit more substantial, but in fact betrays a similar misunderstanding of international law. No, international law doesn’t get anything done except by agreement among sovereign states, but that’s the nature of international law. Yes, lawful military action is military action approved by the government of Russia – and by the government of the USA, and by the governments of the rest of the states represented on the Security Council. The notion of otherwise legally justifiable military action is meaningless: whatever the grounds on which it might in theory be justifiable, military action is legally justified at the point when it’s approved by the Security Council, and not before. What Kettle seems to be hankering after is a kind of unilateralist version of international law: law as a set of principles (liberty, democracy, justice and so on), which could be invoked to justify lawful military action by any state, or group of states, without waiting to gain international agreement. This makes perfect sense, as long as we consider the purpose of international law to be that of maximising international conflict.

But it’s with Kettle’s conclusion that things get really strange. What – and it’s a genuine question – is he actually saying here?

The importance of Bingham’s lecture is not that Britain’s most distinguished lawyer has finally had the opportunity to say that Blair’s war in Iraq was illegal – though that isn’t insignificant. Its real importance is in pointing to the paradoxical fact that a major legacy of Iraq has been the boost it has given to the rule of law and to the wider process of codification in international affairs. As Bingham himself said towards the end of his compelling lecture, it is unlikely that states chastened by their experience in Iraq will be eager to repeat it. While they have not been hauled before the ICJ or any other tribunal, these states have been judged unfavourably by public opinion and thus their standing has been damaged.

The Iraq war was unnecessary and unwise. It may also have been unlawful. It is also, to all intents, over. Yet whether it was unlawful or not, the reality is that the states and the individuals who undertook it have been haunted by it ever since and may continue to be. An epochal public judgment has been made, even if it has not been made by a judge in a courtroom.

That judgment will forever haunt one man in particular. George Bush gives every impression of never wishing to leave the confines of Texas ever again in his life. But as he prepares to depart the White House he too will be diminished as all retiring leaders must be. In particular he will lose his mantle of presidential immunity.

It would be remarkable, right at this moment, if White House lawyers were not actively rehearsing the national and international legal position of the president and his lieutenants. This is the scorched earth, document-shredding period of the Bush presidency and it is possible, though improbable, that Bush may even seek a pardon for himself as Richard Nixon did a generation ago. In a roundabout way it is a gratifying reminder that, in the end and as Lord Bingham has spent a lifetime proving, the law is always bigger than all of us.

First, “a major legacy of Iraq has been the boost it has given to the rule of law”. Then, “these states have been judged unfavourably by public opinion … An epochal public judgment has been made, even if it has not been made by a judge in a courtroom.” But as a result of this judgment, apparently, Bush may end up facing a judge in a courtroom, and that’s “a gratifying reminder that, in the end … the law is always bigger than all of us”.

I think the key to this odd passage is that weaselly half-concession, It may also have been unlawful. The legal status of the Iraq war seems to exist for Kettle in a kind of quantum superposition – at some future point we may have found out whether the war was legal or not, but until then it remains both legal and illegal, or possibly neither legal nor illegal. There are three ways to read this contradiction, all of which find some support in the column. One is straightforward, bare-faced inconsistency: the war is legal in one sentence, illegal in the next. Kettle 1 argues that, although people said the Iraq war was illegal, it was actually legal because it was a good thing. However, the results of the war have turned out to be a bad thing, which shows that in fact the war was probably illegal. But that means we can still say it was a good thing, because it’s made it more likely that states won’t wage illegal wars in future.

Clearly, the problem with this reading is that it’s blatantly self-contradictory and makes your head hurt.

Kettle 2 resolves the contradiction slightly more coherently: the war on this reading was illegal, but it indirectly, and ironically, promoted legality. Kettle 2 concedes that the people who said the Iraq war was illegal were probably right all along. But it’s still a good thing the British and US governments didn’t listen to them, because they didn’t believe that the war was illegal. The invasion and its disastrous consequences are thus indirectly a good thing, because the massive unpopularity of the war will make governments pay more attention to arguments about international law from now on.

This reading makes a bit more sense; the only problem is that nobody in government (or in opposition, come to that) is actually saying anything that suggests they might have learnt a chastening lesson from Iraq, or that they take international law any more seriously than Tony Blair did.

Kettle 3, finally, reframes the contradiction by dividing international law, and hence legality, into a set of goals and principles (good) and a set of institutions and mechanisms (bad, or rather irrelevant). The war was illegal in one sense – in the sense that international lawyers said so – but in another sense it was legal, in that it furthered the goals of law. This, it’s worth noting, is not another would you rather have Saddam back in charge? argument about the benefits of the war; for Kettle 3, the war has made the world a more lawful place through its adverse effects. The reason why it’s a good thing that the invasion went ahead is that the reaction of global public opinion has influenced the British and US governments, in ways that the doomsaying of powerless international lawyers never could. (I seem to remember that global public opinion had a bit to say about the invasion before it had even happened, but set that aside. As Daniel Davies says, very often “if only we’d known then what we know now” really means “if only I’d known then what you knew then”.)

The problem with this reading is precisely this divorce of ends and means: the claim is that the war has given a ‘boost’ to international law because some of the aims of international law have been achieved by other, non-legal means. It’s a bit like saying that a lynching which is followed by a drop in crime has given a boost to law and order. Law doesn’t have aims which can be achieved by other means; to respect the law is to commit oneself to using legal means. In international law – which is perhaps the most underdeveloped area of the law, and particularly interesting for that reason – these means are grounded in voluntary international co-operation; there is no supranational enforcement agency. For a state to commit unilateral aggression is thus not only to break the law but to undermine the rule of law.

But this is only one possible reading of a very strange column, and alternative readings are entirely possible. I give you Kettle 1, a handy phrasemaker whose arguments collapse under their own weight; Kettle 2, a cynical realist about the past and a dewy-eyed optimist about the future; and Kettle 3, who believes in the rule of law as an aspiration, and believes that the best way to establish it is to break the law we’ve got now. Take your pick.

No fear, cavalier

Airmiles was quoted in the LRB the other week:

it was clear soon after 9/11 that the Bush administration … believed that the awesome demonstration of American military muscle would intimidate present and potential enemies everywhere. The administration had its own intellectual cheerleaders and experts on the Middle East: Bernard Lewis, for instance, whose pet conviction that ‘in that part of the world, nothing matters more than resolute will and force’ was validated by the swift capitulation of the Taliban. Iraq was logically the next target. As the columnist Thomas Friedman told Charlie Rose, what the Iraqis ‘needed to see was American boys and girls going house to house, from Basra to Baghdad, and basically saying: “Which part of this sentence don’t you understand? You don’t think, you know, we care about our open society, you think this bubble fantasy, we’re just gonna let it grow? Well, Suck. On. This.”’

Which part of this sentence? Well, the grammar, for a start – it seems to make the most sense if you take out that first ‘you know’ and substitute a question mark for the comma after ‘society’, but there are a few possible readings.

If the word order is mangled, the sense is pretty clear: what Iraq needed wasn’t liberation so much as harrowing, to be carried out by a kind of frat-boy Khmer Rouge. (“Suck on this”, by crikey. What is it with fellatio and humiliation in American rhetoric?) It’s just a dream – the US Army doesn’t have the manpower to go house to house, from Basra to Baghdad; it’s hard to imagine an army that would. But that basic unreality lends it power – once you start thinking if only we had ten times as many men on the ground, then our boys could sort it out! you’re not going to look kindly on any attempt to set limits to what the troop numbers actually are, or to what the troops can actually do. Fantasy lawlessness has a way of eroding real-world law.

Coincidentally, the same day I read that, I saw Lord Bingham’s response to Lord Goldsmith in the Telegraph:

In his full written advice to the Prime Minister of March 7, 2003 — not made public at the time — Lord Goldsmith QC considered that resolution 1441 could, in principle, revive the authority to use force contained in resolution 678 and suspended, but not revoked, by resolution 687. At that time, though, it was not clear to him whether the use of force required merely a discussion by the Security Council or a further resolution.

Summarising Lord Goldsmith’s reasoning, Lord Bingham said: “A reasonable case could be made that resolution 1441 was capable in principle of reviving the authorisation in resolution 678, but the argument could only be sustainable if there were ‘strong factual grounds’ for concluding that Iraq had failed to take the final opportunity. There would need to be ‘hard evidence’.”

Ten days later, in a Parliamentary written answer issued on March 17, 2003, Lord Goldsmith said it was “plain” that Iraq had failed to comply with its disarmament obligations and was therefore in material breach of resolution 687. Accordingly, the authority to use force under resolution 678 had revived. The former judge then quoted the conclusion to Lord Goldsmith’s Parliamentary statement: “Resolution 1441 would, in terms, have provided that a further decision of the Security Council to sanction force was required if that had been intended. Thus, all that resolution 1441 requires is reporting to and discussion by the Security Council of Iraq’s failures, but not an express further decision to authorise force.”

Lord Bingham was not impressed. “This statement was, I think flawed in two fundamental respects,” he said. “First, it was not plain that Iraq had failed to comply in a manner justifying resort to force and there were no strong factual grounds or hard evidence to show that it had: Hans Blix and his team of weapons inspectors had found no weapons of mass destruction, were making progress and expected to complete their task in a matter of months. Secondly, it passes belief that a determination whether Iraq had failed to avail itself of its final opportunity was intended to be taken otherwise than collectively by the Security Council.”

After reading a draft of Lord Bingham’s speech, Lord Goldsmith said he remained of the view that his conclusion was correct. “I would not have given that advice if it were not genuinely my view,” he told the telegraph.co.uk law page. Why, though, did his views appear to harden between March 7 and March 17? “Having rightly expressed caution in my earlier advice, I had formed the view during the week before the 17th that it was my job to express a clear judgment one way or the other.” Civil servants and military commanders had wanted a clear answer. “Either it was lawful or it was not,” Lord Goldsmith explained. “It could not be a little bit lawful.”

As an aside, Bingham seems unimpressed by the ‘I really believed it’ defence:

“Lord Goldsmith emphasises that he believed the advice which he gave at the time to be correct — which I have not challenged — and remains of that view.”

(Emphasis added.) I guess it’s a backhanded tribute to the anti-war movement – all those ‘Bliar’ posters must really have hit a nerve. But Bingham’s right to dismiss it as a side-issue. In law, “I didn’t mean to do it” is a defence of sorts, but an “I genuinely thought it was a good idea” defence would get you nowhere.

The big question here, and the one which really goes to Goldsmith’s competence as a legal advisor, is that last one: Why, though, did his views appear to harden between March 7 and March 17? Goldsmith’s explanation is superficially plausible but, on a closer reading, alarmingly unsatisfactory. Yes, it was his job to express a clear view about the proposed attack, and no, it couldn’t be a little bit lawful – but that’s not to say, as Goldsmith implies, that legality is an on/off property which is either present or not. A judgment on the action’s legality – not whether it would be lawful in some absolute sense, but whether it passed a threshold above which it would be lawful enough – was always going to be made. Between the 7th and 17th of March Goldsmith seems to have decided, firstly, that he was going to make that judgment himself rather than leaving it to the politicians; and secondly, that he would make it on the basis that the action would be legal unless it was clearly illegal: a little bit lawful was lawful enough. It’s debatable whether it’s appropriate for the government’s senior lawyer to spare the politicians the complexities of legal advice by offering them a simple yes/no recommendation, particularly on a decision of this importance. But it’s staggering, even now, to realise that in making this recommendation he didn’t err on the side of caution, treating the action as illegal unless it was clearly legal. Accepting for the sake of argument that removing grey areas was part of Goldsmith’s job, the question here was surely “is it more or less white?”, not “is it not entirely black?”

It gets worse. Why did Goldsmith adopt an aggression-friendly reading of resolution 1441?

Having spoken to those who negotiated the terms of the resolution, Lord Goldsmith was sure that the need for a further determination had been deliberately omitted. US diplomats would not have agreed to resolution 1441 if they thought it allowed other members of the Security Council to block military action by requiring a second resolution that might be vetoed.

Brian sums up what Goldsmith’s suggesting and is appropriately sceptical:

[The government] argues that during the secret negotiations of the text of resolution 1441, Russia and France and other Council members originally wanted the resolution to specify that the Council should take a further “decision” on what to do if Iraq continued to fail to comply with its obligations: and that by agreeing to abandon that language in favour of a requirement that the Council should merely “consider the situation” (as in the text eventually adopted), they accepted that force could be used by any state without the need for a further “decision” by the Council. There is no public record of the “negotiating history” of 1441: all we have is Lord Goldsmith’s account of it, based on his private discussions with the British and American participants. [A] public inquiry should seek to establish whether the Russian, French, German and other governments agree with this interpretation, which seems at first sight far-fetched: as Lord Bingham said, it “passes belief”.

But I think scepticism’s only half of the story. Let’s assume for the moment that Goldsmith’s account is true, or at least that he believes it to be true. (As I said earlier, I don’t think proclaiming yourself not to be a liar is a defence against anything very substantial, but it’s a defence that’s readily available to almost anyone; as a result, challenging someone’s sincerity is a good way to give them an easy win.) What does it tell us about how Goldsmith approached his job? Here’s a lawyer ruling on the legality of an action, basing his decision explicitly on three UN resolutions (678, 687 and 1441). Lawyers interpret legal decisions; it’s a large part of what they do. But Goldsmith’s interpretation of the crucial resolution 1441 isn’t based on a natural-language reading; it’s not based on precedent, either, or even on the lawyer’s standby, the appeal to the interpretation of a ‘reasonable person’. Goldsmith arrives at a borderline perverse reading of 1441 – one which the text of the resolution barely supports at all – on the basis that, if the Americans had subscribed to any other reading, they wouldn’t have let the resolution pass. In short, Goldsmith’s reading was driven by his knowledge of what the US government wanted. A drive to war in Iraq was well under way, fuelled and even to some extent steered by proto-fascist fantasies like Friedman’s. Goldsmith’s approach, on his own admission, was not to bring the law to bear on the drive to war, but to take the drive to war as read and interpret the law so as to fit it. This strikes me as a disgraceful abdication of duty (to the law, not to the government – he served them faithfully). It’s only surprising that he admits to it so readily.

Meanwhile in another part of the forest, a legal authority I’ve got rather more time for at the moment is Nigel Simmonds, whose Law as a Moral Idea is currently giving my brain some useful exercise. This rather lovely formulation is from the book’s Preface:

I am also indebted to [names omitted]. A more intelligent author could perhaps have accommodated their various criticisms and insights, to the considerable improvement of the book’s argument. This author, however, has had to rest content with the imperfect pages that now lie before the reader.

I must remember to borrow that.

Says there’s none

All RIGHT! Whoo! Are there any LEGAL THEORISTS in tonight???

OK then. (Hi Rob!)

Here are some thoughts on regulation and the law. This is a slightly abbreviated version of a paper I gave at a seminar earlier this year, which I’m planning to write up at greater length for publication.

I’d like to examine the conditions which make it possible for regulation to be both just and effective, and the conditions which make it problematic. For clarity, I am defining regulation here as the continued monitoring of an actor’s actions, by an agency authorised to do so, on the understanding that deviation from declared expectations will be met with some form of corrective response. Regulatory monitoring is not itself a punishment and does not require the prior establishment of guilt; it may be entirely prospective rather than retrospective, carrying with it no stigma for the actor whose activities are regulated.

Regulation can have very different associations, depending in part on who is being regulated and by whom. We can distinguish between professional regulation, in which organisations which wield power within society submit to regulation by specialist agencies; behavioural regulation, in which state authority is brought to bear on relatively powerless individuals; and regulation from below, in which pressure from individuals regulates the actions of powerful agencies.

Much comment on behavioural regulation, as exemplified by anti-social behaviour (ASB) legislation, has been highly critical – and critical in ways which calls into question whether this type of approach should be dignified with the name of regulation. It has been argued that behavioural regulation, rather than modifying behaviour without penal stigmatisation, does in practice stigmatise and punish – indeed, that it tends to undermine established principles of criminal justice, singling out undesirables for fast-tracked punishment. Anti-social behaviour legislation is not unique in this respect. Parallels have been drawn with control orders (Macdonald 2007); like ASBOs, these single out specified individuals for restrictive treatment. This raises the question of whether the defects of the ASBO system are parallelled in the control order regime – or even whether they are implicit in any attempt to apply the regulatory approach to individual behaviour.

I’ll address these questions by way of some comments on ‘technical regulation’ from the Russian legal theorist Evgeny Pashukanis.

A railroad schedule regulates the movement of trains in a very different sense than, say, the law on the liability of railroads regulates the relationship of the latter with freight shippers. Regulation of the first type is primarily technical; the second primarily legal.

The basic assumption of legal regulation is … the opposition of private interests. … The conduct of people may be regulated by the most complex rules but the legal element in this regulation begins where the individualization and opposition of interests begins. … Unity of purpose is, on the contrary, the premise of technical regulation. Therefore the legal norms concerning the liability of railroads presume private claims, private individualized interests; the technical norms of railroad movement suppose a single purpose, e.g. the achievement of maximum freight capacity.
(Pashukanis 2001 (1924))

For Pashukanis, the law concerns itself above all with conflicts between private interests. A railway timetable may impose obligations on many different people, failure to meet which may reasonably be penalised; Pashukanis cites other examples of ‘technical regulation’ such as a troop mobilisation plan or a course of medical treatment. However, what is at issue in such a case is an individual’s failure to contribute to the realisation of a common interest, as in the case of a train driver who turns up to work five minutes late, and consequently causes a scheduled connection to be missed. While the train driver has impeded the achievement of a common interest in punctuality, there is no conflict of interests here: the train driver is not pursuing a personal interest in disrupting the system. The disruption caused by the driver’s failure to meet an agreed obligation can be dealt with, in Pashukanis’s terms, through technical rather than legal regulation – or in our terms, through regulation rather than the law.

Pashukanis argues that the domain of regulation is defined by the unity of purpose conferred by a recognised common interest. This emphasis chimes with much contemporary comment on professional regulation, which stresses the need for the regulatory standards to be embedded in the culture of the organisation being regulated. However, Pashukanis’s insistence that regulation begins where the law ends is an unsatisfactory starting-point for us. This assumption would also suggests that regulation is unavailable in any case where all parties are not united by ‘technical norms’ which suppose a common interest; this would effectively rule out behavioural regulation and severely limit the scope of professional regulation.

A way out of this impasse is suggested by Braithwaite’s celebrated formulation of responsive regulation. Most regulatory interventions, Braithwaite argues, should assume a ‘virtuous actor’ open to persuasion. Only if this approach fails should the regulator resort to deterrence, implicitly addressed to a non-compliant but rational actor – and only if this fails should a punitive approach be adopted, implicitly addressing an incompetent or irrational actor. Crucially, compliance at the second or third level should prompt the regulator to de-escalate the next time intervention becomes necessary. The more confrontational the intervention, the less often it should be used; hence the image of a pyramid.

Persuasive regulation – the ground level of the pyramid – is an appeal to the subject of regulation to present him- or herself as a ‘virtuous actor’. The assumption is that the regulator and the subject of regulation have a shared interest in recognising each other – and being recognised – as socially responsible. This interest may not be uppermost in the mind of the subject of regulation – hence the possibility of escalating to deterrence – but it’s worth a try. “The most irresponsible of us has a socially responsible self. Responsive regulation is a strategy for persuading the worst of us to put our best self forward.” (Braithwaite 2002: 21).

If the scope of Pashukanis’s ‘unity of purpose’ is broadened in this way, we can see how the scope of professional regulation can be broadened in turn. Individuals do not need to be united by the mechanical interdependence of their working roles: they may be united by the culture of a particular profession or by more nebulous commitments such as the ‘public service’ ethos. The purpose which unites may even be supplied by statutory obligations (such as those imposed by the Crime and Disorder Act 1998 or the Race Relations Amendment Act 2000), at least once these have had time to become acculturated. All that is needed is a sense of what makes up the virtuous professional self: the list of things that people like us do and don’t do.

I seem to have proved that just and effective professional regulation is at least theoretically possible. Have I also rescued behavioural regulation? Not entirely. If a regulatory approach is genuine, I would argue – if it is more than an alternative label for administrative control – it must be founded on common interest; this in turn will mean that the ground level of Braithwaite’s pyramid is present. If the interest motivating compliance is truly shared, in other words, this can be demonstrated through the use of persuasion rather than deterrence – which will also be the most economical route to compliance. If the regulatory approach begins with deterrence and escalates from there, the suspicion must be that the interests of the subjects of regulation are simply being overridden: in other words, that regulation has illegitimately substituted for the legal processes which should adjudicate the conflict of interests – even between the state’s interests and those of an individual citizen. In the case of ASB legislation, there is some evidence of genuine attempts to appeal to ‘virtuous selves’, notably through the use of acceptable behaviour contracts (ABCs) as a precursor and alternative to ASBOs. However, there is plentiful evidence of a very different approach, deriving from the overtly divisive and exclusive ‘broken windows’ agenda. This approach tends to replace agreement between professionals and young people with agreement among professionals on how to deal with young people, who are seen as a problem rather than as individuals with interests of their own.

In the case of control orders, the situation is even worse. We are dealing here, after all, with people suspected of political offences – offences against the state. In the case of non-political offences, a habitual offender may have a socially responsible ‘best self’ to put forward, and may be motivated by gaining official recognition for this self-image: the literature on desistance tells us that this is a common profile among successful desisters in particular. By contrast, a suspected terrorist (assuming for the moment that he or she has been correctly identified) will be a committed opponent of the British state: someone who not only feels a deep-seated hostility to the state detaining him or her, but considers that hostility as virtuous rather than shameful. The possibility of mutual recognition between such a suspect and the authority regulating his or her behaviour is essentially non existent. This suggests that the regulatory approach in this case is illegitimate – or at least, that it is not regulation so much as the extra-legal use of state power.

In short, I follow Pashukanis in arguing that regulation tends to remove the matters regulated from the sphere of litigation and resolve them through administrative means. For this reason, regulation must be based on the recognition of a common interest, shared between the regulator and those regulated; this recognition can best be asserted and negotiated at the level of persuasive interaction, which is also the least costly and least coercive form of regulatory intervention. In the absence of such a common interest, regulation will be either ineffectual in its persuasion or unjust in its coercion. While these considerations apply to professional regulation, they apply with particular force to behavioural regulation. Although just and effective behavioural regulation is not impossible, the two most prominent current examples – the ASBO and the control order – are badly flawed, the control order in particular.

References

Braithwaite, J. (2002), “Rewards and regulation”, Journal of Law and Society 29: 1
Macdonald, S. (2007), “ASBOs and Control Orders: Two Recurring Themes, Two Apparent Contradictions”, Parliamentary Affairs Advance Access, published July 27
Pashukanis, E. (2001; originally published 1924), The general theory of law and Marxism, New Brunswick: Transaction

All the peacemakers

Socialist Unity has a notice for what looks like an interesting and important meeting:
Creating the Climate of Fear: Counter-Terrorism and Punishment without Trial

Friday March 14; 6.30-9.00 p.m, London Muslim Centre, 46 Whitechapel Road
Organised by Campaign Against Criminalising Communities, Centre for the Study of Terrorism

It’s a meeting about the proposed Counter-Terrorism Bill (the ’42 days’ bill, although there’s plenty more to object to in there). I’m not familiar with everyone involved, but there are certainly some good speakers on the list and some important issues on the agenda. The first two, for example:

Detention without charge would be extended from 28 days to 42 days
‘Terrorism suspects’ could be detained without charge for six weeks. Before 2000 it was 4 days. Neither government nor police have given any convincing reason why so long is needed. The USA manages with 2 days, even Algeria with 12.

Post-charge questioning of ‘terror suspects’ – presumed guilty?
‘Terror suspects’ could be subjected to further questioning after a criminal charge, even up to the trial date. Saying nothing could count against them at trial. At present, people once charged can refuse to answer till their trial, without this being interpreted as a sign of guilt or deception.

There’s more to this second point than meets the eye; in fact I’d argue that this phrasing (people once charged can refuse to answer) already concedes too much. Traditionally the relationship of the police to the courts has been essentially that of a sorting and delivery service: if there’s not enough evidence for a charge, you let the suspect go; if the evidence is there, then you bring a charge and hand the suspect over to the courts. At this point the police cease to have any interest in that person. There isn’t any question of a suspect once charged ‘refusing to answer’ further questions; by being charged, the suspect has moved on to being a defendant – and defendants are no business of the police. Any delay between the charge being brought and the defendant attending court is just that, a delay – an administrative problem.

Labour counter-terrorist legislation has repeatedly extended the length of time the police are allowed to detain a suspect before releasing him/her or bringing charges; this has been justified on the grounds that the nature of terrorist offences makes it particularly hard to get sufficient evidence. However persuasively this may have been argued by successive Home Secretaries, it is hard to see what makes terrorist offences more intractable than, say, transnational corporate fraud. It’s particularly hard to see why the evidence had become twice as hard to gather in 2006 as it was in 2003, and four times as hard as it was in 2000. (Informative post and alarming graphic here.)

What seems to have happened in practice, behind the ‘evidence-gathering’ justification, is the creation of a new stage in the process, for terrorist suspects: police detention. The introduction of post-charge questioning would entrench and formalise this: if no terrorist charge could be brought after 28 or even 42 days, the police could simply hunt around for evidence of an unrelated offence, charge the suspect with that and then carry on questioning. The scope for abuse – and inadvertent misuse – of this system is only too clear.

Of course, it’s true that powers like this could be a weapon in the war against terrorism – but so could just about any other power, up to and including selective assassination. (Would anyone argue Mossad was not effective in disrupting the PLO?) The point is whether the costs imposed by a power like this would be imposed justly: imposed on the guilty proportionately to their guilt and imposed on the innocent, as far as possible, not at all. To ask this question is to answer it: apart from anything else, it’s not the job of the police to determine guilt or innocence. In practice, we can be sure that some innocent suspects would fall foul of these powers. What’s more of a concern is that, in practice, there would be no way of minimising the proportion of innocents who suffered in this way: to do this would require identifying those who were innocent, which by definition could only be done after they had been passed on to the courts.

The funny thing about these successive increases in the maximum police detention period – in 1974, 2000, 2003 and 2006 – is that they’ve all happened under Labour. Mrs Thatcher wasn’t known for her civil libertarianism or her hostility to the police; all the same, her response to nearly getting killed by the Provisional IRA was to defy the ‘men of violence’ by refusing to implement new counter-terrorist legislation. Somehow that particular brand of defiance seems to have passed Labour by.

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