Few of our cherished political concepts can survive unmolested in their unqualified form. Liberty, for example, raises many thorny questions.
Liberty from whom and for whom? From what and to do what? What if my liberty to do something impinges on your liberty not to have that done to you?
Democracy presents similar problems. Everyone agrees it should have some limitations, but where do you draw the line?
According to Freedom House, the think tank supposed to be an authority on such matters, there wasn’t a single democracy anywhere until 1900. Thus neither Victorian England nor its contemporaneous USA was democratic.
The two countries presumably fail to pass muster because only a small proportion of their populations voted. Women, for example, were disfranchised until the 1920s, as were teenagers and quite a few other groups.
By inference, any limitation on franchise invalidates democracy. But franchise is limited everywhere: in the UK, for example, people under 18 and prison inmates can’t vote, and most American states have similar restrictions.
If you object that it’s not any limitations that invalidate democracy, but only unfair ones, then I’ll ask you to define fair.
For example, Jeremy Corbyn thinks denying 16-year-olds the right to vote is unfair. And the top political scientist at Cambridge in all seriousness wants to lower the voting age to six. Is the latter fairer than the former?
Of all those good things in life, the rule of law, presumably the quintessence of political virtue, is the most problematic if left unqualified.
It raises an unanswerable question: what kind of law? For example, the draft of the first USSR Criminal Code stipulated the death penalty for “aiding and abetting the bourgeoisie or counterrevolution.”
When it was submitted for Lenin’s approval, he added, after the words “aiding and abetting”, a slight amendment: “…or capable of aiding and abetting.” Since just about anyone could be deemed so capable, that impeccably legal document turned the whole population into potential targets for executioners.
The Nuremberg Laws in Germany also passed every legal requirement. Those carefully drawn laws effectively ostracised Jews, Gypsies and blacks, setting them up for future extermination.
You may take issue with the virtue of those laws, but not their legality. Some of Germany’s top experts on jurisprudence drafted them, and the country dutifully followed both their spirit and letter.
For the phrase ‘the rule of law’ to mean anything decent, the last word must be modified with the adjective ‘just’. Who can object against being ruled by just laws? Nobody.
But some nitpickers might ask: “What is justice”? An answer to that question depends on the existence of some objective criteria of justice, ‘objective’ being the operative word.
After all, most Germans considered the Nuremberg Laws just. And in the Soviet Union of my youth, few people questioned the justice of Article 70 of the USSR Criminal Code, according to which anyone reading Animal Farm could be sentenced to seven years of hard labour.
Some countries consider it just that thieves should be mutilated and adulterers killed, while some others regard such practices as barbaric. Yet those same people will before long applaud the laws enabling citizens to choose their sex and race from a long menu.
I’m touching upon all those problems somewhat flippantly, but they are very serious indeed. Now, my contention is that laws should be judged not on legal criteria, but moral ones.
After all, most seminal laws, such as injunctions against murder and theft, derive from moral antecedents. And in the West these are all Judaeo-Christian.
Foe centuries, people considered the source and accepted such laws as absolute. That unquestioning absolutism was the foundation of all Western legality, but a building doesn’t stand by foundation alone.
Hence the structure grew and grew, elements of classical jurisprudence were incorporated into it, numerous allowances were made for local customs and conditions. And the ancient distinction between malum in se and malum prohibitum had to be taken off the mothballs.
Based on Judaeo-Christian absolutes, the former, ‘bad in itself’, is proscribed by laws that are, ideally, impervious both to arguments and state interference. No state can remove, say, the injunction against theft and still be considered just.
Malum prohibitum, ‘bad because prohibited’, is a different matter altogether, and laws falling under this rubric make up the bulk of most legal codes. Such laws come not from scripture, but from clever advocates who draft them.
Neither Testament says anything about seat belts, speed limit, tax rates, safety provisions or banning certain substances. Yet we have laws about them, and some of those are enforced more rigorously than laws against, say, burglary.
Such laws are relative, not absolute, and hence open to argument. If the UK sets its motorway speed limit at 70 mph and France at 81, which is more just? If having a bit of how’s-your-father with a 15-year-old makes one a goer in France but a criminal in Britain, whose side is justice on?
Uncountable relativities are built into all laws. In fact, there are so many of them that buried underneath the rubble are the immutable foundations of Western legality. If most laws are debatable, before long all of them will be.
Perhaps it wouldn’t be unreasonable to suggest that the tower of legalistic Babel is growing so tall precisely because Western societies have lost touch with their founding moral, and therefore legal, principles. They rely on casuistry because they’ve forgotten the meaning of justice.
Justice, like everything else, has become a matter of opinion, and one opinion is as good as any other. However, the likely outcome of such latitude isn’t anarchy but tyranny.
A society can’t survive without laws and regulations. And, since shared moral absolutes are no longer recognised, the state may well rule that its own will is absolute.
When that happens, run for the hills. In fact, I’m off the starting blocks already.