Between Law and Politics

[Malcolm Ramsay]

What would you give to live in peace with your neighbours? What would you expect them to give? And who exactly would you be willing to give it to? These are the questions, it seems to me, which are at the core of any organised society - how they're answered is what makes the difference between a collection of individuals living together, and a community with an identity in its own right.

At the heart of a community is a set of obligations which its members accept, and a set of rights which derive from the group. Chief among those obligations, I would say, is surrendering the right to impose your will on those weaker than yourself; chief among the rights is protection by the group from those who are stronger than you. Those rights create more complex obligations; implicit within them are an obligation for every member of the group to act against violators, and an obligation to act in cooperation with the other members. Along with those obligations is created a need for an exercise of judgement, and a need for leadership of some kind - which give rise to further, more specific obligations.

But how does it begin? My view is that it starts with a wholly voluntary surrender, by the strong, of some right to dominate (I say 'does' and 'is' because I see it as something which happens repeatedly, in different forms, at different stages of a society's development, each time initiating a new phase of growth when the previous phase is exhausted).

There is a fundamental difference between the dominant individual in a group saying "I'll kill anyone who does x, y or z" and saying "I won't kill anyone unless they do x, y or z". The first is an arbitrary assertion of a natural right, which engenders an atmosphere of uncertainty and fear; the second is a surrender of arbitrariness, which creates space for trust - which in turn creates a motive for the weaker members of the group to support that individual against a challenger. In that process, I think, lie the beginnings of an implicit covenant.

I'm not very familiar with orthodox Social Contract theories, but my impression is that they tend to be based on a notional original state in which people who are fundamentally equal agree to a set of mutual obligations and rights. A regular criticism of such theories, I believe, is that they are impossible to reconcile with our understanding of humanity's historical roots, which suggest an instinctive social hierarchy essentially based on who would win in a fight (Dominance Hierarchy).

In the kind of social contract I envisage, the primacy of might is central; the contract is not (in its underlying form) a mutual agreement between all the different members, but a collection of agreements between the individual members and their leaders. And the underlying dynamics of those agreements, I believe, are the opposite of what is commonly supposed; in the orthodox view the leader grants rights in return for the support of his followers; in my view the followers give support in response to the leader's unconditional commitment to certain rights.

It's a subtle difference and, for the most part of course, it's academic; but it will be important, I think, if the future I envisaged in Imago Society is to come about. In that post I imagined a series of constitutional crises, arising from a conflict between fundamental principles and the laws promulgated by Parliament (my focus is on Britain, though I imagine similar processes might happen elsewhere), which result in the courts recognising another source of authority. For that to happen they will need to be satisfied both that the new source of authority is rooted in a coherent set of principles, and that transferring (or extending) its own allegiance will be compatible with the principles that the court itself is built on. A crucial factor in that, I believe, will be the concept of consent - where its roots are, how it's demonstrated, and what it depends on - both within the existing system and within the new one.

Those constitutional crises will have to be triggered by disputes between individuals and the government, and those disputes will have to be on issues which fall into the gaps (or overlaps) between law and politics. In other words they will have to be issues which the government can claim are matters of law, but which the courts can reasonably regard as lying within the sphere of politics. Until recently I've assumed that such disputes would have to focus on the exact terms of the implicit contract between government and people; that they would involve direct challenges to the right of Parliament to make certain laws. But I think a more promising angle, in the initial stages at least, might be to focus on the way in which government derives its power, and the way in which we give consent.

The 'official story', I think, is that it is the electoral process which empowers government, by demonstrating the electorate's consent for the winners to take control of the infrastructure of the state. But to my mind this is only a small part of it. What really empowers government is its control over the substantive contribution that individuals make to society as a whole; in other words the government's power stems from its ability to disburse the money we pay in taxes. Obvious enough in itself, but it raises an interesting question: since power derives from the tax base, should the payment of taxes be regarded purely as fulfillment of a legal requirement or should it be seen, in part, as a political act?

At the most fundamental level, I see taxes as the modern equivalent of the physical commitment which our ancestors would have made when choosing sides between two potential leaders. So (on the basis that staying neutral wasn't generally an option) I'd say that the obligation to pay them should be regarded essentially as a legal requirement; but that the actual payment of them should be regarded as political. In other words we should not have a right to withhold them (though I'll have more to say on that in another post), but we should have considerable freedom to decide exactly who we pay them to.

When we vote, we authorise someone to speak for us; when we pay taxes, we empower someone to act for us. These are two distinct aspects of our relationship with the community, and very often our instincts diverge - we think one way, but act in another. A healthy system needs to reflect that fact; it must allow us to choose one way with our vote, and another way with our taxes. And it should allow us, also, to show where our priorities lie in regard to the different levels of government.

The custom of funnelling resources to the centre, to be disbursed back to local agents of the state, is one which I think only exists because the system lacks a properly impartial overseer. There are circumstances - when a society faces some external threat, for example - where it is essential that power be exercised centrally. That necessity is fairly easy to understand, and therefore people cede that power relatively willingly, agreeing to subordinate themselves to a particular individual, or group, for the good of the whole. In a small community that can be done relatively safely, because it's generally easy for people to see when the necessity has passed and reclaim that delegated power.

In larger communities, however, that isn't the case, because the things which justify the transient, or partial, centralisation of power are too remote for people to observe directly. The result is that we have to delegate power blindly, and trust that our leaders will not take more than is justified or for longer than is justified. When the choice is theirs, it's not surprising that they choose to keep control in their own hands .... but it certainly isn't necessary and I think it can be highly damaging. It strips away a whole range of highly important interactions which would otherwise take place within local communities. It is, above all, the decision making processes which constitute the glue which holds a community together - if they are removed it risks becoming no more than a collection of individuals.

When we vote, we authorise someone to speak for us; when we pay taxes, we empower someone to act for us. What is missing is a formal process for entrusting someone with overseeing how power is exercised, and how it is shared between different levels of society. It is an essentially passive function which needs a different perspective to the other two, and - just as they must be kept separate from each other - it must be kept separate from them.

The core idea in this post is that each of us should be largely free to channel our contribution to society through a person of our own choice (and, I will add, to redirect it at relatively short notice). That would make the Executive accountable separately from Parliament, as I proposed in Parcivilised Government, but it's a change which I imagine would be strenuously resisted by the established order. And since the principle behind it is much less clear cut than the other changes I've proposed, making the case for it will be that much harder. But, if the scenario I envisaged at the end of The Root of Much Evil comes about, then there may be a way to introduce it, in embryo at least - along with the constitutional oversight which the system currently lacks. I'm going to leave that for my next post.

 

[Alan Durant]

Hi Malcolm, just a few points.

Is there necessarily a need for leadership? If leadership is neccesary, is it not true that different individuals and different groups might give it depending on circumstances?

Do the strong surrender their right to dominate? It seems to me that they continue perfectly well, its just the form that changes.

Is leadership assumed by 'who would win in a fight'? It seems to me that matriarchal societies  don't fit this model. Also many societies  defer to the old and the wise. Though I wouldn't mind giving david Cameron a kicking.

As far a not paying tax or choosing how its paid and what its used for, when I went on Poll Tax strike they tried to lock me up for three months. Of course reform is always possible and things can be changed for the better but can you change anything fundamental using the apparatus of this system?

It seems to me to be utopian to search for 'impartial overseers'. I fail to see why you feel you can put faith in the courts, which serve our current system, to fundementally change the system that created them.

 

Best  Alan

[Malcolm Ramsay]

Hi Alan,

Some good points - thank you for bringing them up.

I'm going to start with the last:

It seems to me to be utopian to search for 'impartial overseers'. I fail to see why you feel you can put faith in the courts, which serve our current system, to fundementally change the system that created them.

Essentially what I'm trying to do is envisage a viable system which I, personally, would be satisfied with. Until I can do that, I don't feel that I have much right to kick against the one we have. From that point of view, I'm quite happy to be utopian. If we don't have a vision of how human society should operate, we can't really expect anything better than we've got.

But, in any case, why do you describe the concept of 'impartial overseers' that way? Do you believe that it's impossible for any human being to be impartial? That would seem unduly cynical to me. Or do you believe that it's impossible for any political system to exist which would put such people in positions of power? We know that our existing systems don't - they quite deliberately put people who are openly partisan in the most powerful positions - but that doesn't actually tell us anything about what could happen.

It's not hard to find examples where the courts have failed to protect us against the powerful, but there have also been many occasions over the centuries when they have established barriers to the misuse of power - and those occasions, as far as I can see, are the ones the legal system is most proud of. Do you think that principles such as the independence of the jury and the presumption of innocence have been with us since the beginning? If you only look at all the things that are wrong today, then it's easy to believe that there's some deep wickedness behind it which will prevent a healthy society ever emerging. But if you look back at how things used to be, it's obvious that we have in fact come a long way already towards a just society. To my mind, that in itself is reason for hope that we can go further.

The presumption of innocence seems to me to be a special case of a broader principle which I think should apply throughout the whole operation of government - I think of it as a presumption of integrity, and I think quite a number of laws would be invalidated if it were recognised. But it needs to be applied in both directions, so it's not so much that I have faith in them (though I do to some extent), but rather that I believe they have to be given the opportunity to decide on these issues. As far as I'm aware, the approach I'm proposing is something which hasn't been tried.

And when it comes down to it, there aren't all that many options for changing the way the system works - my attitude is that we have to try the ones we can think of.

As far a not paying tax or choosing how its paid and what its used for, when I went on Poll Tax strike they tried to lock me up for three months.

Well, yes .... that's how it works! They have rules that they've bound themselves to, and if you go outside those rules they punish you. It's not enough just to say that the effects of the rules are unfair (they already know that, and some of them clearly worry about it); unless you can point to specific features of the law which are wrong they don't have any choice except to enforce it as it is. The only other possibility is for them to make it up as they go along - which generally leads to something far worse.

But if you can make an argument that specific rules that they're working to are wrong, then you give them a choice. They might choose to stick with the devil they know - especially if there could be major consequences from changing - but most people prefer to side with the angels if they can. You have to be able to make that argument, however.

[Malcolm Ramsay]

(I tried to post this in with the previous comment, but it got cut off)

Do the strong surrender their right to dominate? [....] Also many societies  defer to the old and the wise.

I was primarily thinking about how mankind crossed over from an essentially animal society to an institutional one (I think the matriarchal societies you mention came much later, when social organisation was already very well developed). How did we develop the habits of cooperation which organised society depends on? I can imagine instinctive cooperation to pull a leader down, but I don't think that could form a basis for constructive cooperation. My hypothesis is that the kind of cooperation that was necessary for establishing the foundations of civilisation could only have come about through groups developing trust in a leader - and that that trust could only have developed in response to the leader's self-restraint.

I had initially intended to focus more on the concept of consent in this post, but it ended up going in a different direction. It seems to me that a society can only be truly based on consent if it is based on self-restraint. That means that all laws have to be seen as only binding the government, rather than binding the governed. In other words, there is a primary law ('The government may not interfere with anyone's life or liberty, except in these circumstances ....'), and all the other laws are in fact definitions of the exceptions. It's not a distinction which has any relevance at a practical level, but I think it will be important in the kind of constitutional arguments which I expect to come up.

Is there necessarily a need for leadership? If leadership is neccesary, is it not true that different individuals and different groups might give it depending on circumstances?

When I wrote of a need for leadership I was using it in its broadest sense; 'headship' might have been more appropriate. Organisation depends on connections, but it also depends on end points; there has to be somewhere for the buck to stop. So, in that sense, yes I think the existence of organisation implies a need for leadership.

But I wholly agree that it should rest with different individuals in different circumstances. To my mind, establishing how and when it should shift is one of the keys to a healthy society.

Malcolm

 

[Alan Durant]

Hi Malcolm,

You said,

"Essentially what I'm trying to do is envisage a viable system which I, personally, would be satisfied with. Until I can do that, I don't feel that I have much right to kick against the one we have. From that point of view, I'm quite happy to be utopian. If we don't have a vision of how human society should operate, we can't really expect anything better than we've got."

I see what you mean but the problem of coming out with a fully worked out system can lead to aligations and suspicions of advocating some sort of dictatorship. We could proably all come up with general guidlines but other than this its perhaps better to let people decide based on their experiance as they go along. I would argue that the present system is so horrendus for the majority of the world population that we can not do other than kick against it.

Perhaps I phrased it badly I have no problem with people being utopian its more that I have much less faith in the decency of the current system, their willingness to play by the rules, than you seem to have.

You said,

"but, in any case, why do you describe the concept of 'impartial overseers' that way? Do you believe that it's impossible for any human being to be impartial? That would seem unduly cynical to me. Or do you believe that it's impossible for any political system to exist which would put such people in positions of power? We know that our existing systems don't - they quite deliberately put people who are openly partisan in the most powerful positions - but that doesn't actually tell us anything about what could happen."

I'm sure its possible for individuals to be impartial from their point of view. But I think that any position taken by such an individual would favour one side or another. This is because the interests of the capitalist class and the working class are diametrically opposed.  As well as this it seems that what in the end is or isn't done  depends on the relative power of these classes at any one time in relation to each other. This is why we have the rights and privileges that we have at the present (even though they're being whittled away). These rights and privileges have been won by political action such as the trade union movement along with other actors such as underlying economics.

(As a point of interest 1% of the US population has 40% of the countries income).

I applaud you for trying different approaches such as the idea of a presumption of integrity, it just seems overly trusting to me.

I may be wrong but I think that some of the early societies were matriarchal.  As well as this our social organisation must be capable of evolving into other forms.

Juding from most of the leaders I have known anyone who wants to be one is a candidate for being put up against a wall.

 

Best  Alan

[Malcolm Ramsay]

Hi Alan,

I think your wording in this sentence illustrates a significant difference between us:

I have much less faith in the decency of the current system, their willingness to play by the rules, than you seem to have.

You write about the 'current system', but then say 'their willingness'; you don't seem to differentiate between the system itself (i.e. the set of rules) and the people in it. But when the system is fundamentally tilted, the people at the top don't need to be dishonest or venal in order to benefit - it happens automatically (the fact that some of them are, doesn't mean that as a class they're any worse than the people at the bottom). To my mind, blaming the people rather than the rules is counter-productive; it gives them a reason to ignore you.

I applaud you for trying different approaches such as the idea of a presumption of integrity, it just seems overly trusting to me.

A presumption of integrity isn't the same thing as trusting, any more than presuming innocence means that you expect the person to be acquitted - it simply means that their guilt has to be proved. So my presumption of their integrity is really a way of safeguarding my own, a way of inhibiting my own prejudices. In my last reply to you in Parcivilised Government I wrote about the concept of lawful rebellion and said that 'it must arise from an undeniable failure of the established system'. We can't claim there has been 'an undeniable failure' if we allow our own prejudices to keep us from making the challenges which the system permits.

Whether it'll work or not I can't say, but .... here's a quote from Goethe which I came across a few years ago:

Until one is committed, there is hesitancy, the chance to draw back, always ineffectiveness. Concerning all acts of initiative (and creation), there is one elementary truth the ignorance of which kills countless ideas and splendid plans: that the moment one definitely commits oneself, then providence moves too. All sorts of things occur to help one that would never otherwise have occurred. A whole stream of events issues from the decision, raising in one's favour all manner of unforeseen incidents and meetings and material assistance, which no man could have dreamed would have come his way. Whatever you can do or dream you can do, begin it. Boldness has genius, power and magic in it. Begin it now. (J W Goethe on Commitment)

From one or two of your posts in the forum I'll guess that that concept of providence is a bit alien to you, but I liked the quote so much I made myself some bookmarks of it. I'd say it fits with my experience; when you commit yourself to a path, helpful things happen which wouldn't have done if you'd held back.

Malcolm

[Alan Durant]

Hi Malcolm, in my view the system was created for and represents the interests of the ruling class. This does not mean they are necessarily worse than anybody else, their actions are to a large extent dictated by the system itself. However power corrupts and when you look at the actions of a great many of these individuals you wonder how they can sleep.

You misunderstood,  I think you can make a presumption of integrity its just I can't see the courts doing it. This is not a reason not to try.

You said,

"I wrote about the concept of lawful rebellion and said that 'it must arise from an undeniable failure of the established system'. We can't claim there has been 'an undeniable failure' if we allow our own prejudices to keep us from making the challenges which the system permits."

What would you consider to be an undeniable failure of the present system? I'm not suggesting that we don't challenge the system within the existing framework. Perhaps your predjudices have lead you to read something into what I said that wasn't there. Of course I might just have put it badly.

I never argue, well hardly ever, with Goethe.

I'm amazed that you think the concept of providence is alien to me, why? Incidentally I completely agree with your quote.

" when you commit yourself to a path, helpful things happen which wouldn't have done if you'd held back."

 

Alan

 

[Malcolm Ramsay]

Hi Alan

Sorry I took you for a sceptic on things like providence - I'm not sure why. My memory was that you'd said something in Mike Merton's thread on Transition Occupations which gave me that impression, but looking through it now I can't see what it was .... so I'll have to blame it on my prejudices.

"in my view the system was created for and represents the interests of the ruling class. [....] their actions are to a large extent dictated by the system itself."

The key to reform, to my mind, is finding the points where the system dictates two contradictory paths and getting the authorities to face up to that - i.e. those issues where how it works in practice conflicts with the values it purports to uphold.

"I think you can make a presumption of integrity its just I can't see the courts doing it. [.....] What would you consider to be an undeniable failure of the present system?"

If the courts wilfully refused to recognise a clear conflict between an important principle and some particular law, I would regard that as an undeniable failure. Or if, having issued a declaration of incompatibility which parliament then ignored, the courts continued to rigidly enforce the offending law.

But therein lies another reason for giving them every opportunity to put things right; once there is an undeniable failure of the present system, that next step is a big one. I certainly don't intend to take it any sooner than I have to (apart from anything else my current plans for rebellion make the legal challenges I've written about look highly realistic).

Malcolm