When Respectability Loses Her Virtue

When Jon Donnison was made BBC correspondent in Australia in 2014, he included the following story in one of his first broadcasts:

“I was fined $71 and threatened with court for crossing the road on a red light, unbeknown to me an offence in the State of New South Wales.

“The jovial policeman who stopped me asked, out of the blue, what would happen if I were to punch him in the face. ‘I wouldn’t want to try it,’ I replied, looking up at his bulky frame.

“‘Don’t worry,’ he said. ‘Nothing would happen.’ He told me the courts would probably let me off if I argued I was having a stressful day. But jaywalking, he said, ‘the courts take that very seriously’.”

Donnison concluded: “The laid-back, easy-come, easy-go, throw-another-shrimp-on-the-barbie stereotype of Australia is encapsulated in the vibe of its unofficial anthem, Waltzing Matilda, where a swagman pinches a local sheep for his supper.

“In reality, these days our jolly swagman would probably be pulled up for pitching his tent without a proper permit, lighting an illegal fire or sparking up a ciggie in a public place.

“Australia is without doubt one of the most rule obsessed and bureaucratic places I have ever lived.”

The Cantuar Paradox holds that if the Archbishop of Canterbury says he believes in God, he is simply doing his job, but if he says he does not believe in God, however, he must really have discovered something. By the same token, when a BBC correspondent criticises Australia for stopping the boats, he is simply doing his job. But if he says that Australia is more constricted by regulations than a blonde in a bondage magazine, then he really must be onto something.

What Donnison is onto is the first of three ways in which culture and law interact with damaging political consequences. It is the risk that an unchecked growth in regulation creates a passive and dependent population.

Regulations like those to which he drew our attention are generally not objectionable in themselves. Some may be too costly for any benefit they bring; some may be too intrusive in their applications; some may not achieve their objectives. Their intentions are praiseworthy or at least defensible: to protect us from contaminated food, poisonous liquids, financial fraud, and any number of other risks. They reflect a reasonable cultural preference, found, indeed, in most cultures, not to be poisoned or defrauded. Their bad effects mainly stem from their number, their freedom from effective democratic control, their uncontrolled multiplication, and their growing influence on ordinary citizens to be too nervous of risks and too demanding of protection. Regulatory expansionism gives bureaucracies too much control of our lives and breeds an unhealthy dependency in the general population.

We are encouraged to rely more and more on government officials to do for us what we could equally well do for ourselves—and, maybe more importantly, not to do what might help us solve our own problems.

In Britain, this has led to some extraordinary interventions by the authorities on what common sense suggests is the wrong side. In one case, police prevented men by physical force from attempting to rescue three children from a burning house on the grounds that they were not trained to do so. They were compelled to wait for the arrival of firefighters who, alas, arrived too late to prevent the children being burned to death. There have been several such perverse official interventions which have made “health and safety” a popular synonym in Britain for cruel idiocy. Any idea of self-protection is discouraged by the authorities and increasingly by the surrounding elite culture.

How likely is it that a populace that is continually encouraged to rely on others to protect it will show self-reliance, initiative, and courage when these are needed to save themselves or others? Would the passengers of United Airlines 93, who fought back on September 11, 2001, for others, despite the certainty of death for themselves, be likely to do the same now? Not, I fear, if there are any Health and Safety officers on the plane.

The second dangerous interaction between culture and law occurs when a radical attempt to change social beliefs by law and regulation pardons the criminal and stigmatises the respectable.

Common sense—which is the first target of such reformers—would suggest that a policy of transforming the beliefs of most citizens by law is likely to require much more coercion than one where regulations reflect popular opinions.

Obvious examples from history are the failed attempts to create New Soviet Man, Aryan Man, and Yugoslav Man. I remember the late Colm Brogan, a brilliant satirical journalist, justly beloved of Mrs Thatcher, rejoicing in the stories of drunkenness and idleness filtering out of Moscow in the 1960s. They were happy proof, he reasoned, that the Old Adam had triumphed over the New Soviet Man.

Cultural revolutions in the Anglosphere seem to be tamer affairs. They go most obviously under such names as multiculturalism, biculturalism and affirmative action. They re-define such matters as national identity to drain them of historical content and make them into safe social democratic concepts. They identify such new evils as “institutionalised racism” and conduct campaigns against them and those unfortunates in their grip such as the police or the white working class. They arrange a hierarchy of rights in which, say, gay or feminist rights trump the right of a religion to employ believers in sensitive posts. They undermine traditional markers of identity, virtue, and patriotism by treating them as bigotry or worse. And they stigmatise whole social groups such as blue-collar workers who are seen as hotbeds of socially conservative bigotry.

The transformation of society and social values inevitably goes far beyond these obvious political effects, however. They seek more wholesale and more subtle changes in social attitudes.

In the England of my youth, appearing in a police court very definitely violated the tenets of respectability. Doubtless the same was true in the Australia of that time.

If you are changing society, however, you must either undermine respectability or invert it. Thus, we gradually find ourselves reversing what society treats as vicious or virtuous. A new progressive lumpenintelligentsia, from kindergarten teachers to Critical Legal Theory lecturers, becomes the vehicle for transmitting these new orthodoxies to ordinary citizens constantly. Under this transforming officialdom, respectability becomes a middle-class privilege and thus itself a stigma.

At the same time the stigma of appearing in a police court, even of being convicted, is reduced or disappears entirely. Crime becomes a sign that society has offended against the criminal. In order to avoid the appearances of being either enforcers of middle-class interests or gripped by institutionalised racism, the police become the paramilitary wing of the Guardian.

As my late friend from Daily Telegraph days, Frank Johnson, said of the UK Labour Party: “They can’t nationalise industries anymore; so they nationalise people instead.” Politics slowly evolves into a battle where progressive forces seek to impose these new versions of respectability on conservative citizens who have to puzzle out what is going on before they can effectively resist indoctrination.

Much follows in train. Social legislation designed on such matters as gay marriage, gender parity, or ethnic proportionalism is passed with only modest resistance because many or even most people see the laws as essentially liberal measures expressing a “live and let live” attitude.

It then turns out, however, that the new laws also demand changes in the social attitudes and opinions of those who still resist the original reforms. Live and let live is replaced by the enforcement of public conformity. Speech opposing or criticising such measures is increasingly regulated, sometimes in extravagant ways. Thus, Christian bakers have been compelled by the courts not merely to sell cakes for same-sex weddings (itself a reasonable application of anti-discrimination laws) but even to inscribe words celebrating same-sex marriage on them contrary to their own beliefs.

But whenever some conventional crime or social evil emerges as a major political problem—such as public drunkenness by young people—the notion of punishment disappears. Legal and police authorities propose to deal with it by raising the price of alcohol and running public health campaigns aimed at middle-aged home drinkers. In response to violent crimes, the police strongly warn ordinary citizens against “having a go” to protect their property or to save others from attack. When ordinary citizens resist or intervene against ordinary criminality, however, and their actions cause the death or injury of the criminals concerned, the police are much more zealous in prosecuting them than in pursuing the crimes of burglary or robbery that caused the fracas in the first place.

Far more punitive attitudes take over when vigilantism, race, religion, or sex are at issue, since these are seen as the battlegrounds of government-mandated social change and popular resistance to it. Thus, the US government knowingly propagates the use of false statistics that greatly exaggerate the incidence of rape, especially on college campuses, and is seeking both to remove traditional procedural protections for defendants accused of rape and to make the definition of rape cover a far larger range of sexual activities.

Similarly, the Crown Prosecution Service in the United Kingdom has called for higher rates of conviction in rape cases and issued new instructions for the jury designed to bring this about. These measures reflect the feminist belief (or myth) that rape is less a rare and brutal crime of violence than the extreme end of conventional male sexual behaviour.

And with every step in this progress, ordinary citizens become more alienated and hostile to the society they once felt was home.

At best, they withdraw into a private place. Eventually, people rebel, and social transformation meets more determined resistance. Whether that social transformation then comes to an end or resumes after a pause is not yet certain.

The third dangerous interaction between culture and the law stems from the postmodern belief that truth and justice are merely masks for the exercise of power. George Orwell wrote in his 1941 essay, “England Your England”:

“The hanging judge, that evil old man in scarlet robe and horse-hair wig, whom nothing short of dynamite will ever teach what century he is living in, but who will at any rate interpret the law according to the books and will in no circumstances take a money bribe, is one of the symbolic figures of England. “He is a symbol of the strange mixture of reality and illusion, democracy and privilege, humbug and decency, the subtle network of compromises, by which the nation keeps itself in its familiar shape.”

In a saner world, in an earlier England or Australia, that might very well have been the opinion held by, say, Bill Shorten of Dyson Heydon: namely, someone whose social and political views were unacceptably reactionary but who was a rock of integrity who would never allow his decision on the case before him to be influenced by his political sympathies. Maybe Shorten does privately hold that view—though he has strong personal incentives to disguise it from himself and from others.

But it is instructive that a socialist like Orwell could think and say what no ambitious left-wing politician could think or say today. The difference is explained by the triumph among progressives of postmodern views sceptical of the very notions of truth and justice, which they see as mere masks for power and oppression.

Those views have made great progress in legal circles through the influence of Critical Legal Theory in the United States. They have made it possible for judges throughout the Anglosphere to think it reasonable and even virtuous to interpret the law in a way that imposes their own personal political views on society. When the prevailing public opinion is that judges only interpret the laws, any damage is limited. Unrestrained by that, the notion of justice-as-power undermines the very notion of law and makes both law and politics arenas for conflict without end and ultimately without compromise.

To quote Orwell again: “In England such concepts as justice, liberty and objective truth are still believed in. They may be illusions, but they are very powerful illusions. The belief in them influences conduct, national life is different because of them. In proof of which, look about you.”

I do not think truth and justice are illusions. But even if they are, we have a duty to fight to restore their cultural supremacy in law schools and in society.