The Left and the Law: Joined at the Hip

thumb on scales

 (editor’s note: Below, the edited text of an address by John O’Sullivan, editor of Quadrant, to the  Samuel Griffiths Society)

As science has established, the human brain starts working from birth and continues doing so right up to when someone rises to make a public speech. But I look forward, having survived tonight, to enjoying the debates of tomorrow without reserve. Those debates are very necessary—if sadly so. In all the nations of the Anglosphere, with the partial exception of the United States, law was, until recently, a political battleground mainly at the stages of electoral debate and parliamentary law-making. There was usually a general understanding that decisions of the court that made law, rather than merely interpreting it, could be reversed by the legislature. And the legislature’s decision, like that of the editor, was final.

All that has changed in recent years with the Human Rights Act in the UK, the Mabo decision in Australia, and the growing power of Supreme Courts in Canada (where the Court recently rejected the government’s nominee on grounds that seem constitutionally dubious and politically biased) and in the United States (where the Court has taken to discerning constitutional rights founded solely in the musing of its members on the meaning of life.) In the great majority of these decisions, the political direction of change has been leftwards, and their political content has been supplied in great measure from ideas and values floating in the cultural atmosphere. That cultural atmosphere is not drawn, however, from the beliefs of the whole of society, or even of a majority of its citizens, but as the late Robert Bork used to complain, from the mindset of the academic-media-philanthropy complex that has metastasized since the Sixties and replaced the military-industrial complex as the dominant ideological force in political life throughout the Anglosphere.

So an organization such as the Samuel Griffiths Society, like the Federalist Society in the U.S., has two responsibilities thrust upon it. The first is to make a case for returning law-making to democratic and accountable institutions, namely congresses and parliaments, from the courts. The second is to make arguments within the legal community that unmask, resist, and counter the proposals for major political change that come disguised as legal reforms or constitutional necessities or sometimes as the unanticipated consequences of a myriad of minor regulations. The liveliness of your debates tell me that you are doing a fine job in relation to both responsibilities. The fact that your internal disputes are more interesting and better argued than most of the political debates across the parliamentary floor, let alone on the ABC, suggests that the intellectual advantage remains with the liberal and conservative Right. And I fervently hope that your counsels will stiffen the spines of the governing Right here and in other countries.

They have certainly inspired me. I don’t usually offer innovative constitutional advice to the people of a country where I have been living for only a few months. I usually wait six months at least! But your debate this morning on mentioning the First Nations in a constitutional pre-amble inspires me to suggest that this could work if supplemented by reference to a second notional category of Australians. We might call this group “the First Citizens,” being the descendants of those Australians who settled in Australia between the First Fleet and the passage of the Constitution and who could undoubtedly claim a special role in creating the Australian polity. I think that might solve your problem—and Mr. Abbott’s. How would it work? Would it stigmatize people who were neither First Nations nor First Citizens? Would it undermine the equality of all Australians? Would it amount to the legal creation of separate rights and privileges on an ethnic basis? Well, Mr. Chairman, I have given you the solution. These are essentially technical questions of how to implement it, and I can’t be expected to provide answers to all of them. But one thing I can state with absolute certainty. I can assure you that if First Citizens were to be written into a new preamble, there is no prospect at all that the courts might use it to create special rights for Australians descended from these First Citizens or otherwise favor them. On that at least we can feel confident and relaxed.

Let me turn now, however, to the first of three ways in which the “progressive” elite and the law interact to spawn damaging consequences. These three ways are: first, how a multitude of regulations, if their growth is unchecked, risks creating a passive and dependent population; second, how the attempt to change social beliefs by law and regulation pardons the criminal and stigmatizes the respectable; and, third, how the post-modern belief that truth and justice are merely masks for the exercise of power creates an ideological tyranny.

So, first, the explosion of regulations that the administrative state produces. I’ll begin this with a parable from Jon Donnison, the new BBC correspondent in Australia who in one of his first broadcasts told the following story:

“I was fined A$71 ($51, £32) 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.”

Now, ladies and gentlemen, let me introduce you to the Cantuar Paradox: This is that if the Archbishop of Canterbury says he believes in God, well, he’s simply doing his job; but if he says he doesn’t believe in God, well, he must really have discovered something. Equally, when a BBC correspondent criticizes Australia for stopping the boats, well, he’s 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.

And what Mr. Donnison is onto is something that is more damaging in practice than in theory. 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. But they are intended to protect us from contaminated food, poisonous liquids, financial fraud, and any number of other risks—all of which are defensible aims. And they reflect a reasonable cultural preference, widespread in most populations, not to be poisoned or defrauded. Their bad effects 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.

When I mention dependency, I am not referring to welfare dependency. That is a bad thing too, and it is made worse when the regulations surrounding welfare benefits offer perverse incentives—for example, for single mothers to break off relations with the fathers of their children. But the dependency bred by excessive regulations in the general population is a more general kind of passivity in relation to its own actions and rights. We are encouraged by it to rely more and more on government officials to do for us what we could equally well do for ourselves—and, maybe more important, not to do what might help us solve our own problems. And the authorities themselves come to believe that they should enjoy a monopoly of action in areas where regulations covering “health and safety” are concerned.

In Britain this has led to some extraordinary interventions by the authorities on what commonsense suggests is the wrong side. In one case, police physically prevented neighbors 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. They, alas, arrived too late and the children were burned to death. There have been several such perverse official interventions—which have made “health and safety” a popular synonym for cruel idiocy in Britain. Richard Littlejohn, the Daily Mail columnist, has made a specialty of writing about such occurrences.

Any idea of self-protection is discouraged by the authorities and, increasingly, by the surrounding elite culture. One symptom is the universal hostility in the media to the private ownership of guns and thus its absolute unwillingness outside America to even examine any arguments or statistics that might justify such ownership. This prejudice was very obvious in Australian coverage of the recent Virginia shooting.

How likely is it that a populace that is continually encouraged, both verbally and by excessive regulation, to rely on others to protect it will show self-reliance, initiative, and courage when these are needed to save themselves or others. To take one example: would the passengers of UA 93, who fought back on September 11th for others despite the certainty of death for themselves fourteen years ago, be likely to do the same in fourteen years’ time. Not, I fear, if there are any Health and Safety officers on that plane.

Let me now come to the second set of ill effects. This is produced by laws and regulations that stem not from the cultural beliefs of society but from the cultural beliefs of those in and out of government who want to transform society radically. As commonsense—which is the first target of such reformers—would suggest, a policy of transforming the beliefs of most citizens by law is likely to require much more coercion than one where regulations reflect popular beliefs. And we know more about how such experiments work out from abroad than, until recently, from Anglosphere countries.

Obvious examples from history are the attempts to create New Soviet Man, Aryan Man, and Yugoslav Man. Eventually, these all failed. I recall 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 under such names as multiculturalism. They re-define such matters as national identity to drain them of historical content and make them into a safe civic education rooted in a kind of deracinated liberalism. They undermine traditional expressions of identity, virtue, and patriotism by treating them as breaches of social etiquette when not actually outright bigotry. They identify new social evils, such as “institutionalized racism”—which may exist quite independently of any proof of actual racist talk or conduct—and conduct campaigns against them that imply that institutions such as the police are guilty unless proved innocent. They establish a new hierarchy of rights in which, say, an “equalities agenda” trumps such rights as that of a religion to employ believers in sensitive posts or that of religious adoption agencies to confine adoptions to heterosexual married families (which in practice forces the agencies to close down.) And they stigmatize whole social groups such as blue-collar workers as hotbeds of social conservative bigotry. Michael Pinto-Duschinsky, a British scholar who has analysed government appointments to official and semi-state bodies, points out that almost no working class people are appointed to such bodies and that social concern for widening their social intake concentrates entirely on ethnic and gender outreach.

But the wholesale transformation of society and social values inevitably goes far beyond these obvious political effects. They seek more wholesale, yet more subtle, changes in social attitudes. To explain, let me cite a judicial quotation that many of you will know. It is, in reality, a comic parody of the law that one authority took seriously. An American textbook in the 1960s cited it as one of the rare cases of English judges making law in the American sense. It is episode in A.P. Herbert’s brilliant parodies of Times law reports, Misleading Cases, which I recommend unreservedly and which refutes any argument that legal humor is no laughing matter> Here goes:

It is a principle of English law that a person who appears in a police court has done something undesirable, and citizens who take it upon themselves to do unusual actions which attract the attention of the police should be careful to bring these actions into one of the recognized categories of crimes and offences, for it is intolerable that the police should be put to the pains of inventing reasons for finding them undesirable.

Well, of course, it is not a principle of English law that someone who appears in a police court must have done something undesirable. But it is  a principle of English culture, or was until recent decades. That principle was entitled “Respectability.” Philosophers and theologians looked down on respectability as a tepid imitation of true virtue. Samuel Butler replied to such critics in Erewhon, pointing out that those who rejected respectability as inadequate were usually the very same people who failed to live up to its un-exacting standards. Recent events confirm his observation.

If virtue consists of doing good when no-one else is looking, respectability consists of doing good because others might be looking. And now we know what happens when people don’t think that anyone is looking: the Ashley Madison hacking incident has informed us. According to one newspaper headline, Sydney is third in the list of world cities with the largest number of Ashley Madison subscribers with, I quote, “Melbourne coming in as a respectable sixth.” Indeed, according to one newspaper estimate, fully 15% of Sydney’s male population has subscribed to the website. It must be encouraging to you to reflect that if there were a Sex Olympics (and mark my words, there will be) that Australian adulterers would be up there winning heat after heat, alongside your swimmers and tennis players, going for the gold.

To return to the main theme: appearing in a police court very definitely violated the tenets of respectability in the England of my youth and, doubtless, in the Australia of that time. But if you are changing society, then you must either change or undermine respectability. We see the reversal of values. Under a transforming officialdom, respectability becomes a middle-class privilege and, thus, itself becomes a stigma. Whereas 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, who is then seen as the real victim. Under the influence of this reversal of values, and in order to avoid the appearances of being either enforcers of middle-class interests or in the grip of institutionalized racism, the police gradually change their attitudes to respectability and dissent. Over time they become the paramilitary wing of the Guardian. And though parties of the Left are generally the carriers of these ideas, soi-disant “progressive” members of center-right parties tend to go along with them as well. As my late friend from London’s Daily Telegraph, Frank Johnson said of the UK Labour Party: “They can’t nationalize industries anymore; so they nationalize people instead.”

Much follows in train. Social legislation designed to ensure that society conforms to the reforms laid down over such matters as gay marriage, gender parity, or ethnic proportionalism is passed. Social attitudes and opinions resisting such reforms then become suspect. So, in addition to these practices being imposed through law and regulation, speech that opposes or criticizes them is increasingly regulated too. Official housing agencies in America have tried to criminalize political opposition to its social-housing program as “racist” and to ban public meetings on it. In response to violent crimes, the police strongly warn ordinary citizens from “having a go” to protect their property or attempting to save others from attack. They suggest that ordinary citizens should invest in burglar alarms etc. When ordinary citizens do resist or intervene 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. And whenever some crime or social evil emerges as a major political problem—such as public drunkenness by young people in city centres—the authorities propose to deal with it by raising the price of alcohol and running public health campaigns aimed at middle-aged home drinkers. Over more and more social activities, the regulation of the law-abiding replaces the punishment of criminals as the criterion of wise public policy.

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. Social evils grow, but the authorities are psychologically unable to tackle them seriously. Eventually, people rebel and social transformation meets serious political resistance. What follows then is either an election defeat for the progressive cause—or its enforcement by the authorities citing human-rights charters or treaty obligations that are immune from correction by electoral majorities.  An even more serious constitutional crisis then takes over. That is almost invariably the Rake’s Progress of coercive utopian governments.

My third point will be very brief. It consists really of a paragraph from Orwell’s 1941 essay, England Your England. I quote:

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 Haydon: namely, someone whose social and political views were unacceptably reactionary to him but who was a rock of integrity, someone 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 political incentives to disguise it from himself. But if he does, he cannot easily express it in today’s moral-cum-political atmosphere.

Now, it is instructive that a socialist like Orwell could think and say what no serious 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 US. And they have made it possible for judges to think it reasonable, even virtuous, to interpret the law in such a way as invariably to impose their own personal views on society. That doctrine, however, undermines the very notion of law, and makes both law and politics arenas for conflict without end and, ultimately, without compromise. 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 don’t think these things are illusions. They are ideals that we never realize perfectly but that spur us on to better. Even if they are illusions, however, we have a duty to fight to restore their cultural supremacy. Because without the ideals of truth and justice, we will drift further and further from their achievement in reality. This Society exists to recover these ideals in law — and that is why it deserves your and my support.

  • jenkins

    It’s quite odd the way the way the progressives go all po-mo, poo-pooing any version of reality put forward by a conservative commentator, yet have a zealot’s faith in their own little unproven, untested version of some future utopia, which just incidentally happens to profit them.

  • Jody

    It seems the Bolsheviks are in charge; the oligarchs have decided they want to shape our society in their own image. It’s a horrible view, of course, but the younger generations who support these ideas and indiscriminately consume them – thinking they amount to greater ‘freedom’ and ‘rights’ – will live long enough to discover the folly of their ways. It’s no different to any philosophical revolutionaries from the past who thought they alone knew what was good for everybody else. Think about the turmoil in Europe post 1791. Today’s oligarchs are no less from the ‘let ’em eat cake’ ideological inclination than was Marie Antoinette.

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