Law and Justice (Part 2)

Our Makers of Confusion, Fear and Chaos

A law which a man cannot obey, nor act according to it, is void and no law: and it is impossible to obey contradictions, or act according to them.

— Vaughn, C.J. in Thomas v. Sorrell, 1677

To see my video on Law and Justice, click here

It is desired that our learned lawyers would answer these ensuing queries ... whether ever the Commonwealth, when they chose the Parliament, gave them a lawless unlimited power, and at their pleasure to walk contrary to their own laws and ordinances before they have repealed them?

Lilburne, England's Birth-Right Justified, 1645

The Prime Minister had come to power with the zeal of a reformer. He considered the greatest failure of his predecessors had been in the field of law. With the skillful use of fear porn and propaganda, our leader of the party of the radicals had obtained a stunning majority from the electorate and, under the Parliamentary system of his land, was effectively its dictator for the next five years. He declared a climate emergency to make that dictatorship more formal. At last, he could implement the social justice and climate change agenda of which he had always dreamt. He would save the planet, fight racism, end oppression and poverty and Perfect Equality would rule the land. There would be peace, harmony and the sole purpose of the criminal law would be to punish the stubborn opponents of his perfect legal system. The existing laws were written in the archaic tongue of another age. The laws reflected customs and traditions that were no longer relevant. Justice was slow and expensive and cumbersome. The PM resolved to make his name as a great lawgiver. He therefore called on his Minister of Justice, who had only recently been appointed King’s Counsel. KC’s were awarded not on merit, but for service to the party and with proof presented of absolute loyalty to its ideals, confirmed by an extensive review of one’s social media postings. Our PM could therefore count on KC’s political reliability.

KC’s recommendations were straightforward. “As your first official act, we need a clean slate. You must announce the repeal of all existing laws of whatever kind.” And so it was done.

“I will now draft you a new code,” declared KC. Unfortunately, KC knew surprisingly little about the law, didn’t really care for law all that much, and found himself incapable of making even the simplest generalizations. Since he also served as the Chief Justice of the land, he was confident enough to make decisions, but was unable to give articulate reasons for any conclusions he reached. He gave up the idea of writing a code and decided to simply make decisions without reasons. KC explained at his first press conference that under the stimulus of a variety of cases he hoped that his latent powers of generalization might develop into a system of rules. But after handing down literally hundreds of decisions, neither he nor any citizen of the land could detect any pattern whatsoever.

After this fiasco, KC decided to test his limited intelect and education once again by completing the code. Although it hurt his brain, he did succeed in writing a fairly lengthy document. However, KC wasn’t confident it constituted a perfect seemless web and to avoid any criticism, he persuaded the PM to announce that although the new code was written, was now the law of the land and to be used in every controversy, it would be kept secret.

Funny thing, people didn’t like having their cases decided by rules they had never seen. PM’s approval rating plumetted. Although inclined to ignore the ignorant citizenry, which evidently needed re-education, KC came up with another plan that was sure to be popular. It would be far easier to decide things with the aid of hindsight. KC drafted up an order in counsel that henceforth, the courts would decide all controversies that had arisen in the preceding year, which decisions would be accompanied by a full statement of reasons. These reason would only apply to past decisions — but not future ones. Inexplicably, not knowing the rules in advance also turned out to be unpopular.

Our illustrious PM ordered KC to go ahead and publish his code. Copies were distributed to every household and were also available free of charge anywhere cannabis was sold. From now on, the Code would apply to future disputes — problem solved. Unfortunately, KC’s code turned out to be a masterpiece of obscurity and not a single sentence in this mess could be understood by ordinary citizens or legal experts alike.

KC was forced to come to terms with the fact his law degree wasn’t worth the digital device onto which he had downloaded it. He needed help. He handed out each section of the code to different lawyers to work independently on a revision. By working separately, this would save time, KC thought. He was right. When he had received all the redrafts back and tossed them together, he order the revised code to be promulgated under the name, the Clarity Act. This was a misnomer, as one would expect with a name like the Clarity Act. Critics noted it was so full of contradictions, not a single section of the Clarity Act was clear, funny enough, or wasn’t contradicted by some other section of the Clarity Act.

The PM was fed up with KC. He told him in no uncertain terms to simplify this mess, get rid of the contradictions and to make sure it was obeyed. To end all criticism and hateful speech, our PM made it a serious offence punishable with up to life in prison to break any of its provisions. RThe time to respond to notices of claim or criminal charges under the code was reduced from 10 days to 10 seconds. Penalties were draconian. It was treason not to understand or agree with the government’s social justice agenda and for anyone to cough, sneeze, hiccup, faint or fall down during any of the prescribed parades or while attending a mandatory re-education class or camp.

Well, let’s just say the new code didn’t go over very well, with stickers suddenly appearing everywhere stating:

To command what cannot be done is not to make law; to command what cannot be obeyed serves no end but confusion, fear and chaos.

Our befuddled PM now called on a select team of three of the best jurists in the land to do a final overhaul of the code to make it general, prospective, clear and without contradictions. Only problem was, the social and economic conditions had changed so dramatically since the start of this project that much of the Code was no longer relevant. Amendments had to be made to each provision on a daily basis. The sticker campaign resumed, this time with stickers stating:

A law that changes everyday is worse than no law at all.

The maker of these stickers was thrown into jail for two years for inciting hate, after which the code was withdrawn for another overhaul.

The PM decided the only solution was to fire KC, make himself Minister of Justice and Chief Justice and decide all cases himself. His popularity was tanking and his wife announced that she had had enough — of what exactly, it wasn’t clear. Our unfortunate PM announced that despite the setbacks, there was nothing more important than his social justice and climate change agenda and he was the only man who could achieve utopia. He decided to hear all cases himself, and thanks to chat GPT, his judgments actually sounded quite brilliant. He started every judgment with the line, “In accordance with the Clarity Act, here are my Reasons.” All was fine until a bound version of all his decisions was released. People and legal experts began to notice there was actually no discernable relationship between his decisions and the code he had created. The Clarity Act might as well not have existed at all.

Alas, our heroic PM gave in to politcal pressure and resigned from the party. His replacement for the current year, a Ms. PM, annouced that she was taking power away from the lawyers and elected officials and placing them in the hands of psychiatrists and experts in nudge theory. This way, she explained, people could be made happy without rules, although she would also ensure an ample supply of frilolous entertainment, and cheap alcohol, drugs and pharmaceuticals¹

So ends the allegory of the bad laws, which is a paraphrase taken from Lon Fuller’s 1964 work, the Morality of Law.

In the first part of this essay on law and justice, we saw how equality has overtaken justice as the overriding goal of the legal system. We also saw that formal justice means treating likes alike, and that if the rules are not applied impartially in accordance with their terms then there is really no system of rules at all. Under the reign of equality, our legal system has in fact been moving away from a “system of rules”² towards, at times, a system driven by utility, by agendas and into a legal order driven relentlessly forward without regard to law, towards a set of prescribed social goals.

For the video version of this essay, click here

As illustrated by the allegory, we must also ask if the rules themselves have the quality of laws at all. This of course won’t matter much if just rules are applied politically. But let’s assume we have a fair and impartial justice system. In that case, we can look beyond formal justice, which can be achieved even if an unfair rule is applied impartially. Substantive justice requires that we ask if the rule itself is fair.

Fuller, an American legal philosopher, argued that a law must meet certain basic criteria to be a true law. He called this law’s “internal morality”. In his 1964 work, the “Morality of Law”, Fuller argued that all purported legal rules must meet eight minimal conditions in order to count as genuine laws. The rules must be (1) sufficiently general, (2) publicly promulgated, (3) prospective (i.e., applicable only to future behavior, not past), (4) at least minimally clear and intelligible, (5) free of contradictions, (6) relatively constant, so that they don't continuously change from day to day, (7) possible to obey, and (8) administered in a way that does not wildly diverge from their obvious or apparent meaning.³

A hate law for example that made a person subject to prosecution for a tweet that was legal when tweeted it 10 years ago, is not a “genuine” law,and should not be enforced. This is an example of punishing past behaviour. In the interests of pursing the “agenda”, governments in the West have become more brazen in breaking all eight of Fuller’s rules of law’s internal morality.

An element of substantive justice is looking at whether the rule itself is just, not only that it has an internal morality. This can be called ‘concrete justice’. Aristotle in his Ethics instroduces the idea of distributive justice, which looks at the effects of law or rules in terms of the distribution of honours and rewards by the state to persons according to their just deserts.⁴ Justinian’s codification of the Roman law asserts that justice consists of “giving every man his due.”⁵

That is all fine and good, but what is the scale of values by which we are to determine what is due or what your share will be. Is it going to be hard work; effort; whether you belong to an old family; whether you are a new migrant and have nothing to start with; whether your ancestors have been here longer and built more of the nation’s infrastucture? Is it going depend on whether your ancestors were oppressed; or on whether they were history’s winners and deserve more of the spoils? Should the poor get more because they have less; should the entrepreneurs get more because they produce more goods and jobs, no matter how low paying; should the majority decide what is fair; or should what is far be determined by anyone interested whether citizen or non-citizen? This starts to look like justice is a mere empty vessel into which you pour your ideological concrete. As Lloyd writes:

What justice cannot tell us is whether it is right to prefer achievement to effort as a subject for reward, or to limit a franchise to males, to the exclusion of females. The criticism or justification for these decisions has to be sought in some wider criterion or principle that justice can afford.⁶

Modernity tends to supplement the content of justice with ideology. However, this has proven remarkably ephemeral and unsatisfactory. The fact is there is no known ideology that has been tested long enough to produce consistent results. As far as I can tell, liberalism hasn’t fought a single so-called war yet, whether on poverty or drugs or terrorism, that has solved the problem. Rather, the tendency is to make things worse, leaving a dense layer of new laws and an inflated bureaucracy operating without regard to results. Even wars on crime will wax and wane with the political winds.

Is it then just a matter of choice and the particular political indoctrination to which you have been subjected? Perhaps not. Until the modern era, Romans, medieval jurists and pre-revolutionary French avocat had no doubt that the content of justice was to be found all around, in something given scant attention today: in the history, customs and traditions of the people or nation. This was the default to go to when the written laws or previous written decisions did not provide a clear answer to the controvery before the court or seemed to produce unjust results. This was a no-brainer in homogeneous societies where people shared the same history, morality and religion, where your ancestors might have lived in the same house for generations and in which you had every prospect of raising your own family. We inherited laws the same way. We come into or have been thrown into the world not as individuals who make choices, but as members of families, clans, tribes and nations. Justice is inherited in the same way, not as a matter of logic or ideology, but as something that must be accepted or rejected. It just is.

Substantive justice is also said to be fueled by something called “equity”, which recognizes that not every factual situation can be forseen, such that a law that dishes out justice in most cases, can produce injustice in particular ones. In the English tradition, it was said that "Justice should be administered with Mercy”. This represented an appeal to a higher moral or legal norm, such as could be provided by Christian morality and Canon law or Roman law principles, to soften the sometimes harsh effects of the common law.

In his work, Ancient Law: Its Connection to the History of Early Society⁷, Sir Henry Sumner Maine analyzed the legal traces of societies from the archaic period to the present and concluded that the origin of society was in the group and not the individual. There was never a state of nature, in the sense Rousseau described it. This group was, according to Maine’s theory, the family. The law, if we can call it that, was what the head of the family, who had absolute authority over all, decided at any given time. There was no generalization, no codes. These came later. As Maine writes, early “Law has scarcely reached the footing of custom; it is rather a habit.” These habits, then became generalized into unwritten customs and then finally into the early codes, such as Romes Twelve Tables opr the Ten Commandments. There was no thought that laws had a purpose outside of themselves. They just were. As Maine wrote, “Ancient literature gives few or no hints of a belief that the progress of society is necessarily from worse to better”⁸ and, if anything, the exact opposite was true.

As society became more complicated, populations intermixed and family lines less clear, the written customary law was adapted without saying so through legal fictions, equity (or appeal to higher moral principles) and then finally by legislation). The benefit these societies had in answering the question, “What is justice?” was a continuity between a fictionalized first ancestor, the customs that followed, and the system of laws that ultimately developed. This legal system supplemented by tradition was capable to sustaining a civilization like Imperial Rome and its inheritors, the modern European states, up until World War II. Over the 80 years that followed, under a new regime, we can identify a distinct pattern of rupture with the past, and disruption of memory culminating in a political culture that looks on the past with outright hostility. This has had a dramatic impact on law and justice.

It is indeed remarkable how mass societies and their multi-ethnic, multicultural, nature tend to drain the content of justice and make the question, “What is just?”, suddenly so seemingly complicated and indeterminate. For most of human history, “What was just?”, was an easy question. This would tend to suggest that those interested in the pursuit of just societies, in the true sense, rather than the inevitable authoritarian societies which follow multiculturalism, will tend to gravitate towards the smaller, not bigger community, towards homegenious national, rather than trans-national progressive ones. The allegory suggests citizens rebel against unjust laws. That may have been so, but what of the nature of modern societies, which may already be at least partially sedated within the modern therapeutic regime? For now, the states of the West appear on a clear trajectory in the wrong direction, towards more of the “confusion, fear and chaos” that bad rulers, and unjust laws, create.

1. A paraphrase from L.L. Fuller, The Morality of Law, rev. ed. New Haven CT: Yale University Press, 1969, pp. 33-38.

2. D. Lloyd, “The Idea of Law” (Penguin, 1985) at 122 (first published in 1964)

3. L. L. Fuller, The Morality of Law, rev. ed. New Haven CT: Yale University Press, 1969, pp. 33-38.

4. Idea of law, ibid.

5. ibid.

6. supre at 123

7. H.S. Maine, Ancient Law: Its Connection to the History of Early Society (HardPress, 2016) (first published in 1917)

8. Maine at 70