2020-03-07

The Trials of the State

89511586_10157933757712350_3351801376970637312_oA slim volume by Sumpers, who I've disagreed with, though only mildly, before. I picked it up on New Year's Eve fully expecting to dislike it but was increasingly enchanted and instantly resolved to blog it; now it is nearly the end of February well into March.

Before reading my ill-informed opinions you'll want to read others. keepcalmtalklaw says it argues that law, and its modern fixation on rights and due process, has now largely filled the space previously occupied by politics and political debate - for better or for worse3. Or you can read Stephen Sedley in the LRB,  who seems to disagree with Sumpers a lot; perhaps professional enmity or just the desire to have something to say, I don't know, I got a bit bored reading him5. Anyway, enough of these other people, "what of me?" I hear you cry.

Chapter 1: Law's expanding empire


The law used to regulate religion, and ban homosexuality. Now it regulates neither, and indeed bans discrimination. Animal welfare legislation, by banning fur farming on moral grounds, has enforced a common morality: what could have been an entirely personal moral decision, to purchase and wear fur or not, has been made common (he declines to argue the rights and wrongs of fur; as he does for other things; this is correct; his discussion is not over the rights and wrong of these choices, but whether they should be covered by law). This leads me to reconsider his point re non-discrimination: the law could have simply withdrawn from the area, but did not; it chose to ban discrimination. Per Gay Cakes I think the answer is that the law should ban discrimination by the govt (ideally in the glorious words of the US constitution: shall make no law concerning...), but not by individuals, leaving the question of large companies somewhat unclear but my inclination would be to have the law by default stay out when it can. JS's opinion is that we are afraid to allow people to make their own moral judgements, in case they disagree with our own.

A little later he asserts that the advance of law into ever more areas is simply a fact, which we shall have to get used to. It is certainly an observed fact of recent times, but not quite the fact-of-nature that he appears to consider it; perhaps it is not an area he wishes to discuss so closes it as quickly as possible.

After morality, he considers risk, and notes that we become ever more risk averse and insist on the law protecting us, at the inevitable cost to our liberty.

Chapter 2: In Praise of Politics


By constantly disparaging pols I may have given the impression that I disparage the concept of the political process, but this is not true; see for example Aristotle's Politics. JS, while aware of political failings and the public's opinion of pols, nonetheless notes the importance and elusiveness of the concept of "legitimacy": people will accept decisions they disagree with as long as they accept the legitimacy of the decision-making process.

But it is necessary to counter the tyranny of the majority; JS asserts two parts to this: representative democracy, and law.

JS's defence of RD is not convincing to me. Chiefly, it is that it is superior to direct democracy (which is just-about-now just-about-possible1) because pols are less likely to sacrifice the long-term good of the country to short-term interests. In asserting that we use RD as a matter of principle, he ignores the obvious, that current pols would fight tooth and nail to keep their jobs and power, and that any change would have to come through them, the most opposed to change. SJ acknowledges this view as perhaps "elitist", but not his own bias for it as a member of the elite. He then goes on to defend political parties, on the grounds that they are flexible and balance interests. Since this is all in the context of Brexit, he has to bring that in, and finds himself obliged to say that "Europe has become the defining issue which determines party allegiance". This is nonsense. Brexit cuts across party allegiances.

We move on to law; but almost immeadiately return to the prior theme, of increasing, umm, activity of law in the political process, or "law as the continuation of politics by other means" (a familiar idea from the USAnian climate change cases). As far as I can tell nowhere does Sumpers admit the obvious conflict of interest here: judges are awarding themselves more power. Briefly, he touches on the appointment of judges in the UK. They are nominally nominated by an independent panel. But actually this just means they are nominated out of public site by an opaque process. JS appears opposed to something similar to the USAnian political appointment process, but admits that with judges becoming more political, this may be inevitable2. But then we get to the more interesting point: that judges are intrinsically unable to mediate; that it is a zero-sum game; and cannot accommodate diverse opinions the way politics can (if it works well). This point is a good one, but only quasi-true. Reading the deliberations of the SCOTUS (I recommend Scotusblog) I think it becomes clear that in many cases the judges are trying to strike a balance, and will only come down hard on one side if given no choice.

Chapter 3: Human Rights and Wrongs


Human rights have a long common-law foundation, but there is an awkward problem of definition; what exactly are they? I like Hobbes's view (see wiki) which I assert the USAnian constitution largely subscribes to: that "rights" are things you have naturally, that laws constrain those rights by imposing obligations, and that the constitution imposes restrictions on the state as to what constraints it may impose. Thus the first amendment says Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; and does not state that people have the right to freedom of religion or a right to freedom of speech; and I strongly criticise the European approach, which is to award people rights by writing them down on pieces of paper. Anyone with any knowledge of the USAnian constitution will of course object that they do not everywhere follow the wise model of the above words; and I can only reply that no-one is perfect.

JS's issue is the public concern that HR law is independent of democratic choice, and protected against amendment by a democratic legislature; or equivalently that HR law has exceeded it's proper sphere and trespasses on politics.

Shifting over to the ideal domain, JS notes that democracies can enact what rights they want; if there is to be some over-arching HR, then that requires some legitimacy; otherwise, HR are just whatever your law currently defines. Once, religious authority might have supplied that legitimacy; no more. Some rights can be considered fundamental, because without them society as we desire it cannot exist; equality before the law, freedom of speech.

What he doesn't say explicitly is something I've said before: that there's a problem in the gap between "rights" which sound excellent when considered in their prime formulation, and the consequences that flow from them4. He does however implicitly consider this, because we move onto...

We then get a lot of technical stuff about the structure of HR legislation, which I think you should read from him not my poor paraphrase; but cutting to the chase we end up with extensions of the text which rest on the sole authority of the judges of the Strasbourg court. This is, in  reality, a form of non-consensual legislation... most of the rights which the S court has added to our law are quite unsuitable for inclusion in any HR instrument. We're back to legitimacy, and the problem of taking difficult and disputed decisions out of the political (i.e. public) sphere and "privatising" them (that's my phrase, not his) by calling them matters of law. This is correct, and accounts for much of the public discussion' which discussion is not, of course, on these rarefied terms; and part of the public anger is I think at it's inability to articulate it's unease.

Chapter 4: Lessons from America


The primary lesson is that he isn't too keen on a constitution, for reasons I find unconvincing. He does note that the SCOTUS has made some rather broad and arguably bad decisions: finding a right to privacy (which underlies Roe vs Wade) and Dred Scott. Otherwise, we're left with judges not being able to save society single-handed, which is or should be uncontroversial.

Chapter 5: Constitutions, New and Old


Spends most of its time arguing against  changing to a written constitution, which is pointless, because that's not going to happen. Does the familiar bemoaning the decline in citizen participation in politics, but finds nothing new to say on the subject. Argues against PR, pointlessly; and of course I disagree. So I'm glad to be able to some extent to regain my prejudices against him in this last chapter.

Update: on reflection


On reflection, prehaps I was close tothe truth when I said "enchanted" and perhaps I should have said "bedazzled". I feel there is somehow less ot this than meets the eye, as exemplified by my failure to find any "key points" to pull out. Except I still like his point re legitimacy.

Notes


1. Note, this doesn't mean clumsy referenda. It would mean internet-based voting on a far more regular basis. It is not going to happen, so carefully considering the exact details is pointless.

2.See-also the timely Boris Johnson takes on the judges, and Why pruning the British judiciary’s powers will prove tricky from the Economist.

3. And this is wrong, because the thinks it is for worse.

4. I'd suggest some kind of "back flow": if you can reason from your universal rights to a decision that is wrong, then (assuming your reasoning survives scrutiny) you have to reconsider what you think of as rights. "wrong" here might be slippery. JS makes a good point in that if it is a question of morality, and you assert universal rights, then significant rational disagreement amounts to it being in error.

5. Re-reading SS I retain the same antipathy; for example, in 2011... attacking the judiciary of which he was now a member for methodically invading the territory of politics... he has returned to the theme of the deference owed by law to politics. It is his bad luck to have done so at a moment when the UK’s political process, both in and outside Parliament, has been in functional meltdown and moral decline, while both his own court and the lower courts have remained a source of constitutional principle and political stability. I think this misses the point; that adverse-to-politics judicial decisions are part of the political problem.

18 comments:

Sam said...

Literally any attempt at direct democracy would probably end up being an unimtigated disaster, because for questions any more complex than "beef or chicken" (and sometimes even that) majority rule collapses into an incoherent mess because of condorcet.

Also the idea, even if only very broad strokes, of putting voting anywhere *near* the internet is quite utterly barking, computer security being what it is and all.

William M. Connolley said...

This, of course, is what they want you to think.

Sam said...

Don't mean it's wrong.

Christopher Blanchard said...

There is a fundamental problem here, in two parts. First is that rights are not 'natural'. It would be wrong to say they are just invented because other complex animals like wolf packs and cattle herds have systems of entitlements: rights, responsibilities, duties and so on, and our capacities have evolved in similar ways, but the content of those entitlement systems, inside human nature, is enormously variable, so - inside very wide limits, rights are invented. If you doubt that think how many fully functioning human societies have the right to kill, in a duel or otherwise, for slights to honour. And second, following on; splitting politics and judicial action, as though they are different things, doesn't make sense to me because they are both mechanisms for doing that invention. I forget who said it, but rights are created by and inside political processes (and only survive because they never stop), so judicial action is just a (slower) part of the same process. This is a sort of anarchist logic - no authority, legal or social, has any kind of absolute sway - it is all down to the social/political processes which sustains their legitimacy.

Christopher Blanchard said...

And, by the way, I think Sumption's history of the Hundred Years War is brilliant, but his Reith lecture argument, while also brilliant, is quite wrong - say again, law and politics are not separate.

William M. Connolley said...

I think your argument for rights being invented is dubious. The right to recompense for slights to honour is near-universal; the exact form of that recompense differs; but that is a matter of detail, not fundamental.

I disagree that pol and jidicial action cannot be split. One can indeed make the argument that everything is interconnected in this world of ours and that everything bleeds into everything else; but that is just a truism. It is both practically possible to meaningfully draw fuzzy boundaries between them, and theoretically valuable in the analysis.

I also think "they are both mechanisms for doing that invention [of rights]" is a strange way to view either law or politics.

Christopher Blanchard said...

Hmm. I don’t believe my way of seeing things, that rights are created rather than discovered, is particularly eccentric, although I’m happy to acknowledge it is relatively unusual. I suspect, in the way many eccentrics do, that the more usual ways of seeing things are a general ‘bedazzlement’ (to adopt your word). First off, mine does have some reasonable academic support. One of the things I was doing was paraphrasing Bruno Latour, to the same effect. Not sure how much weight you might give that - for my part I think ‘We have never been modern’, is one of the best books I have read this decade, but other work, where he seems to accept separate ‘magisteria', as all being in some way valid, seems to me to be quite wrong.

Besides, I worked this out myself, so never mind Latour, out of a heterogeneous mix of history reading, science and its sociology, politics and anthropology. The key is the anthropology. Societies differ. My point about killing for honour was not that some such notion isn’t nearly universal - it obviously is - but that the content, and the rights and duties which go with it are very varied, and many of them work well, but notions like ‘a right to life’, really don’t stand up to any kind of comparative ethnography. The differences are not just detail because the legitimate responses to honour breaches cut across our current notions of rights (in every sense). That’s one basic right which won’t stand up to inspection. There are plenty of others. Just one example - relevant, although it is formally about duty and entitlement, which is the ‘incest taboo’. One or other version of the taboo is usual, so much so that an earlier generation of anthropologists sometimes claimed it is a universal part of human nature (Levi Strauss is about the end of that, and a little bit equivocal). But it isn’t, in fact, universal - like Cleopatra, for example, and maybe Trumpist Tennessee. So that is another of these human universals out the window.

I think that bit is easy - rights and all the rest do vary, and ours is just a local token. I can’t see in that how we can re-interpret other people’s behaviour as if it had an underlying logic which just happens to be our kind of rights, and I fear, and hope I’m wrong, that that is what you are doing. That would seem to treat all these thousands of different cultures as if they were all populated by some kind of idiot, which won’t do. I had better say, in case you misunderstand me, that this version of moral relativism is not about my acquiescently accepting such stuff as suttee or slavery. To put it crudely, there is no absolute reason my way (and I think yours) is better than some other, but if I have to fight for my way, then, though I hate the thought, I will do so.

But underneath all this is a question, which is ‘how do these rights, and the duties and responsibilities which are their counterparts, come about?’ My partial answer is that they are the product of social processes; they have a history; they have evolved, physically first, and in our working communities. That is the sense in which I used the word ‘invented’, and I used the word ‘politics’ in a broad sense, to try to encapsulate those social processes.

Your bit about fuzzy boundaries is right enough: I wasn’t clear. I am very well aware of the differences. My definition of ‘political’ has more to do with my old feminist friends’ war cry of ‘the personal is political’. I would be happy with other language.

Christopher Blanchard said...

A morning thought as well, which is that some of this disagreement is like nature/nurture debates. There is no either/or about it. Rights, and so on, are not simply natural (your preference) or made (which is mine). They have to be some of both, so the questions are 'how much', 'when', 'where', 'how', and so on, and whether a particular way of seeing things is more useful, either analytically or practically. I am inclined to prefer mine as a strong starting point because, for example, it helps resolve your doubts about Sumption's approach. Seeing politics and law as parts of an evolved organic whole, sustained by continous debate and action - different in detail, but of essentially the same kind, does, it seems to me, clarify things a great deal.

William M. Connolley said...

> Bruno Latour

Ah, Bruno Latour.

> notions like ‘a right to life’, really don’t stand up

I'm happy with that; in my framework, it's near meaningless. The state creates and enforces laws prohibiting murder, but that doesn't give you a right to life, and more than the prohibition on laws about religion gives you any religious rights.

Christopher Blanchard said...

Thankyou.

Christopher Blanchard said...

Thankyou. The meaning of this stuff gets profoundly emotional. More another time.

THE CLIMATE WARS said...

The last time latour spoke hereabouts, he was giving two cheers for Climate Leviathan, and dividing the various combatants in the climate wars into separate planetary camps, each with a different world view and truth systems , turning the political categories of Climate Leviathan [https://www.amazon.co.uk/Climate-Leviathan-Political-Theory-Planetary/dp/1786634295] into a variation on the theme of of 'men are from Mars, women are from Venus

William M. Connolley said...

"Wainwright and Mann [no relation - WMC] argue that rapid climate change will transform global political economy and our world s basic political arrangements, leading toward a capitalist planetary sovereignty. Alternative futures must be constructed in the face of these transformations." Um. What does that even mean? That there will be one global sov due to GW? Why would that be so?

Nathan said...

"the public concern that HR law is independent of democratic choice"

Hmmm the issue is that humanity doesn't have a proud history of treating each other well... With or without Democracy.

So it should be independent...

William M. Connolley said...

I think you're missing the points: (1) If the HR law is indep of democratic choice and control, it is nonetheless created by something / somebody; simply ceding it from the democratic sphere does not make that somebody all-wise; (2) law that does not have popular support is dangerous.

Unknown said...

The Climate Wars refered to Latour talking about "different world views": That is what I said ('different magisteria' was Stephen Jay Gould's version of the same rubbish), and I disagree with it very strongly. but I ought to add a qualification, which is that Latour opens himself up to parody, which isn't always fair - he is genuinely trying to do new things, and he is sometimes so subtle he confuses me and, I suspect, himself. Because of that I have to read his most recent book for myself before I can be confident about my intial hostile reaction.

Christopher Blanchard said...

Sorry, that last post by 'Unknown' should have been me.

William M. Connolley said...

Aha.

> he is sometimes so subtle he confuses me and, I suspect, himself

I'm dubious about offering this as an excuse. To have something useful to say it has to be comprehensible. Offering words with an unclear meaning is likely unhelpful, *unless* your insights are so perceptive that it is worth the plebs picking over your words for any shred of enlightenment they can find. As my prior post suggests, I prefer a different interpretation less creditable to BL, which I won't repeat here. I certainly don't see anything from him that deserves any reputation for brilliance or uncommon insight. But you're welcome to point be at something of his to change my mind.