‘It’s the law!’ – the motto of the 21st century’s useful idiot

[Nat Quinn]

‘It’s the law!’ – the motto of the 21st century’s useful idiot

Superficially, society seems to have taken the historical lesson offered by the Holocaust to heart: being ordered to engage in injustice – mass extermination, in that case – is insufficient to compel obedience. ‘I was obeying an order’ is no excuse. There is, in other words, a higher moral duty that supersedes ‘orders’.

I say society has only learned this lesson ‘superficially’ because once ‘an order’ is in form (not substance) replaced with ‘the law’, many people seem to forget the lesson. An order, certainly in the sense of a senior German securocrat giving an instruction to a subordinate, and a law, are akin in this context. Both are compulsory, and widely regarded as compulsory.

Any lesson learned regarding ‘orders’ must therefore concomitantly be a lesson learned regarding ‘the law’.

One of the reasons society might be getting its wires mixed up, however, is because we use the term ‘law’ to refer to somewhat similar but ultimately distinct phenomena. These are the rules of the common law, and the rules of legislation. What these phenomena share – like ‘orders’ during the Holocaust – is that they are backed by the coercive power of the state: compliance is compulsory.

But there are key differences between the common law and legislation, which I return to later.

Law is violence

It is important, firstly, to establish that violence is intrinsic to law. If this were not the case, what we call ‘law’ would not be law. Law, in this sense, is violence.

But to say this is not to say the law is a thuggish institution that undermines people’s vital interests. Law, instead, is society’s answer to the problem of ungrounded and unrestrained violence. Violence is always going to be a factor in society, and violence is sometimes justified, but usually not.

Violence, then, needs to be controlled. It cannot be eliminated, and attempts to eliminate it, as we have seen in practice, often limit justified violence (for instance, making it difficult to invoke self-defence) and exacerbate unjustified violence (for instance, making it easy to engage in trespassing and land invasions).

The law is violence that has been institutionalised by society in an effort to nurture a constrained, predictable, and – one hopes – reasonable and justly targeted violence.

Substance and form

If law is violence, law cannot be dismissed as a curiosity or afterthought. The law is serious business, and we need to understand law thoroughly and conceive of it in a passably rational manner.

Many do not, however.

In most of our daily lives, we take the substance of something more seriously than its form. Marrying an attractive partner (form) might seem exciting initially, but if the partner’s personality (substance) is lacking, the relationship will not last. Receiving a cheque for R1 billion (form) is nice at first glance, until we realise the cheque-giver does not in fact have R1 billion (substance) to give.

Legal formalism is not to be underestimated, though. It is a powerful force.

Formalism is what can make a despicable act of bigotry into a socially prized act of empowerment. In the absence of affirmative action legislation, if a company declines to hire someone based only on the reason that ‘we already have enough Indian women’, it would be raked over the coals.

But because there exists a form – an Act of Parliament – that says ‘this is necessary’, the same people who would have morally condemned the company would now praise it for its fierce dedication to social justice.

Formalism is what can make a perfectly natural act of financial self-determination into a condemnable act of anti-social greed. In the absence of tax legislation, if a person decided to spend all their income on, for example, investment in shares, nobody would bat an eyelid.

But because the form of the Income Tax Act exists, and it says ‘at least some of your income must go to the revenue service’, those who would otherwise have been indifferent would now regard this ‘tax evader’ as a self-interested capitalist who cared nought for anyone but themselves.

Formalism is also, quite frustratingly, the reason why we are more offended by Jacob Zuma ‘stealing’ some R200 million for his Nkandla palace, than we are by – to take but one of innumerable examples – National Treasury’s decision to grant the useless South African Post Office an almost R4 billion bailout. One is ‘illegal’ and the other is ‘legal’, but clearly the ‘legal’ act is significantly more harmful to the taxpayer than the ‘illegal’ one.

Our preoccupation with mere legality as a value higher in precedence than many competing values, leads us down this ridiculous, almost postmodernist path.

Useful idiots

Clearly, society sometimes does allow form to supersede substance, especially when it comes to law.

But substance is always supposed to be the more important consideration. It must be. We must pay more attention to the reality of something rather than its façade. Façades are important, to be sure, but they remain only the casing of the reality.

This is why, when someone’s ultimate reason for taking a particular position is ‘it’s the law!’, that should be regarded as a red flag.

Those who hide behind ‘it’s the law!’ are the 21st century’s useful idiots, because elevating formalism over substance with such zeal has provided the political class with an infinite number of get-out-of-jail cards. When abusive or corrupt politicians want to do something that, in substance, is clearly wrong or misguided, all they really need to do is adopt an Act of Parliament, and all will usually be forgiven.

We must and can do better than this.

Society should apply the same lessons learned about ‘orders’ to ‘laws’. Society should never outsource its sense of justice, morality, right and wrong, to the form of legislation.

Legislation

One of the major reasons we find ourselves in this position, is because we allowed legislation – a formal instrument – to become virtually synonymous with the very notion of law. Indeed, law students are taught that legislation is the most important ‘source of law’.

Between the common law and legislation, legislation is the simpler institution to explain.

A piece of legislation, simply, is a document with legal rules written on it and adopted by Parliament – hence it is also called an Act of Parliament. It derives its force exclusively from the fact that a very small and specific set of individuals – legislators – think it should be in force, for whatever reason they deem expedient. From legislation flows regulations, also written sets of rules adopted as derivatives of their enabling legislation.

What, then, is Parliament?

In this case, ‘Parliament’ is at least 200 representatives in the National Assembly and at least five delegations (50 people – arguably only 25 if the majority of each 10-member delegation rules the day) in the National Council of Provinces, and the signature of the President. These are all underworked and overpaid politicians – and, in our reality, these are all members of the African National Congress.

When these 251-odd individuals decide to write their preferences down and slap the words ‘Act of Parliament’ on it, it ostensibly becomes ‘law’ for 65 million people.

This seems perverse, does it not? Surely, for something to qualify as ‘law’, the barrier to entry cannot be this low. The law, after all, is something that binds us all – all 65 million of us in South Africa.

Yes, one might say we have delegated to these politicians the power to make law on our behalf, but there is a more fundamental question. By what right do even we, the general public, have the power to ‘make law’ out of thin air and to delegate that power to a politician?

Common law

The general public does play a role in ‘law-making’, but not in the sense of anointing some small group of politicians to ‘make law’ on its behalf.

The common law (ius commune – not to be confused with English Common Law tradition), opposed to legislation, is in general not reduced to writing. The decisions of the courts and the scholarly record of law is, of course, written, and herein the common law is stated. But this is not ‘where’ the common law is ‘located’. Every court decision and literary expression of the common law states the relevant rule differently, after all.

The common law is that set of rules that has been acknowledged and applied over centuries, not because some political body deemed it expedient, but because it was recognised by courts, scholars, and the public to be appropriate to the given set of circumstances.

This recognition was then affirmed repeatedly thereafter by similar sets of circumstances where the courts, scholars, and the public could have gone a different way, but instead regarded the prior solution to be appropriate – even if it had to be refined.

This process of formulating rules for specific circumstances, affirming them across time, and refining them slightly where necessary, eventuates into a common law rule.

Legislation is the codified preferences of politicians at a specific point in time. Common law is the accumulated legal wisdom of jurists and laypersons over centuries.

Two approaches

There are, then, two approaches to what ‘the law’ is:

The first is that law is effectively synonymous with ‘codified preferences of the political elite’. Some people would swear by this conceptualisation. That is fine. The question, however, then becomes: why must we regard ourselves as bound in conscience to the law? Why must we care that something is ‘law’, if it is nothing more than the elite’s preference?

Personally, I have no desire to be labelled ‘law-abiding’ if this is our conceptualisation of law.

The second conceptualisation is that law is, at least to a large degree, external to the ad hoc and transient preferences and desires of the political class. That law is, perhaps, found in nature, or less mystically, spontaneously developed by generation after generation in piecemeal fashion.

Law’s immutability

The law is, in this latter sense, meant to be fixed and immutable in principle, while being adaptive to new and evolving circumstances in practice.

After all, when we use this term – ‘law’ – in other contexts, that is precisely what we mean: the laws of biology, the laws of physics, the laws of economics, and so forth. These refer to the very nature and reality of these disciplines.

When we consider law a la jurisprudence, however, we do not treat it as fixed and immutable (even though we might speak of it as such). The fact that the expression ‘there ought to be a law!’ is so commonplace is indicative of this. Society has convinced itself that law can be ‘made’ out of thin air.

We might have preferences around gravity. I very much wish I could build totally impractical stacks out of my overfull library of books. I might wish the laws of physics allowed me to do so, so I need not find space for additional bookshelves.

But neither I nor anyone else would exclaim ‘there ought to be a law of gravity that allows this!’ and then proceed to advocate or campaign for the establishment of a ‘Gravitational Parliament’ to ‘make’ a law of gravity.

We have done exactly this when it comes to jurisprudential law. We have established bodies to ‘make law’ to satisfy our special pleadings. Today this might seem normal, but it is in fact just as preposterous as wanting to ‘make law’ for gravity.

Arbitrary diktat

Most of the pieces of legislation that our legislatures adopt, I would submit, are not law in any substantive sense. They are the usually arbitrary diktat, codified opinions, of our own fellows. Nothing aside from spectacle and ceremony gives these fellows any greater insight or right to ‘make law’ than we as civilians do.

If 5,000,000 people voted for someone to ‘make’ a ‘law of gravity’, that so-called ‘law’ would still not be a law of gravity. There is no reason why this does not or should not apply to modern-day legislation. Just because a bunch of people voted, and a smaller group of people assembled and wrote an ‘Act of Parliament’, does not make of that a true ‘law’.

The law is meant to be simple, intuitive, non-arbitrary, and truly the common heritage of everyone bound by it. The common law, imperfectly, is the route to this ideal.

But in modern society, ‘the law’ – legislation – has become insanely complex, unintuitive (giving rise to the saying, ‘the law is an ass’), usually arbitrary, and the purview of a small class of the population: lawyers and politicians.

None of this was inevitable or necessary, but its consequences were perfectly foreseeable. At some point it was decided that law can be ‘made’ and opportunistic political operators around the world took advantage of this newfound power. No longer was ‘law’ above the politicians – now they could make it.

The importance of legislation

It might seem like I am blanket-belittling legislation, but legislation does have its role.

Written, supreme constitutions are perhaps the most valuable manifestation of (special) legislation. These are crucial documents that every free society should adopt. Coherently limited government is only possible where the parameters of limitation are stated in clear and unambiguous written language. The common law recognises virtually no substantive limits on government power, necessitating constitutions.

Intragovernmental legislation is also useful. Here one thinks of an Act of Parliament that establishes a new police service, or one that regulates how civil servants must behave themselves. As the great liberal Friedrich August von Hayek elaborated in length, it is here – in the regulation of government – that legislation shines. It is an organisational tool.

Legislation can also be used quite appropriately for the codification of the common law, which was one of the original purposes of legislation way back when.

But the crucial proviso here is that it remains the common law – not the legislation – that is the source of law. This means that if there is an incongruence between the common law and the legislation, it is the common law that must apply. This rule would ensure that legislation is not used to override the common law – a common phenomenon today.

None of these three valid forms of legislation ‘make law’ for society. Society’s law is the common law. Legislation is meant to be government’s law, applicable to government.

The idea of a government ‘legislating’ law for a society – as opposed to creating intragovernmental rules or codifying the common law – seems normal today, but is quite perverse.

Law is meant to be a neutral force that benefits everyone by creating order, certainty, and providing fair and considerate solutions to conflicts. This immediately becomes impossible when law is dragged down to the level of politics. Suddenly, the law itself creates conflict and becomes a tool for rent-seeking.

People intuitively know the difference

Nowhere in the civilised world have there been ‘defiance campaigns’ against the (common) legal rules against murder, rape, theft, assault, or fraud, and so forth. Yet, one can point to numerous defiance campaigns against the so-called ‘laws’ of legislation – not least of which were the uprisings against slavery, segregation, racial discrimination in the American South, and Apartheid in South Africa.

Why is this? Because, while society has adopted a warped conceptualisation of law, people intuitively respect and understand what we might term real law – the law of the centuries – and feel more comfortable protesting and defying what we might term false law – the law of immediate political interests.

A false law is a political opinion dressed in legal garb. And to the extent that one recognises these false laws as ‘law’, one gives the political class a free cheque to engage in abuse. ‘It is the law!’ are four of the most dangerous words in the English language.

A modest proposal

Of course, the public does have the right to elect people to represent them in the corridors of political power, and as a political community it does have the right to govern itself.

But this says nothing about law.

A community like Orania exercises democracy and governs itself, but it does not pretend to have the power to make law. A household is in large part a self-governing unit, but at no point is there any pretence to law-making.

My modest proposal is that society must psychologically begin to take Acts of Parliament down a peg.

Parliament must retain the power to ‘act’, and as such, to adopt ‘Acts’. But these can simply be ‘Acts’, and need not be elevated to the status of law for the people, communities, and businesses that comprise society.

We must mentally reserve the status of law to something more enduring and more majestic. Something that a single generation cannot simply, by the stroke of a pen, chop and change. Something that is not changeable by the will of any single individual or single interest group.

Acts of Parliament must be binding upon government – after all, we elect parliamentarians precisely to hold government to account on our behalf. But outside of government, the public must reclaim ‘its law’, which is and always will be the common law – the law that is common to society.

This psychological shift will not bring about law reform, but it will give people a better perspective of how the state (mis)governs society, and how society in turn reacts – and should react – to that.

 

source:‘It’s the law!’ – the motto of the 21st century’s useful idiot – Daily Friend

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