Law and Change

The law is a key asset. But its conservation is neglected. When law has recently become established and brought peace, it is appreciated, conserved and cared for with an urgency that we have forgotten. Deriving its authority from its constancy, the law was once compared with the sun: in ancient Near Eastern thought, “sun” and “justice” belonged together, and in the lyrical poetry of Psalm 19 we have a dazzling statement of this:

In them [the heavens] he hath set a tabernacle for the sun: which cometh forth as a bridegroom out of his chamber, and rejoiceth as a giant to run his course . . .

And that, come to think of it, is just like that other defining feature of creation, the law:

The law of the Lord is an undefiled law . . . The statutes of the Lord are right, and rejoice the heart: the commandment of the Lord is pure, and giveth light unto the eyes.^L8

And yet, the law in our day is not as undefiled as the psalmist thought it ought to be. For one thing, it lacks constancy:

There is much too much law-making. Thousands and thousands of pages of primary and subordinate legislation are turned out every year, reaching the point where it is virtually impossible for those who administer the law to discover what it is. One will get a regulation made, and before it has come into force there will be an amendment, and the amendment will be amended before the amendment comes into force. And the databases are not always capable of keeping up with it.

Tom Bingham, Start the Week, BBC Radio 4, 2010.^L9

It can also be an instrument of social engineering or vendetta. When this happens, those who are at the controls claim with sanctimonious certainty that anyone who challenges it is a hooligan and law-breaker. This happened, for instance, in legislation in Germany in the 1930s, in the Former Soviet Union, and in Maoist China: to be a law-abiding citizen merged into being complicit with atrocity. The action needed to get rid of a tyrant is almost always strictly illegal—as Patricia Meehan notes in her study of the foreign policy of the British Government in the 1930s: “It was the core of the British attitude to the German Opposition that disloyalty to the Nazi Government was high treason and those who took that stand were traitors, no matter how vile that government might be.”^L10 Deposing Saddam Hussein was illegal: having gassed the Kurdish villages and destroyed the Marsh Arabs along with their habitat, by law he should have been allowed to develop biological and nuclear weapons, and to continue to tyrannise his people and the region at leisure.^L11

But, as John Locke pointed out, respect for the law of a tyranny—the view that all but one should be under the restraint of laws—

. . . is to think that men are so foolish that they take care to avoid what mischiefs may be done them by polecats or foxes, but are content, nay, think it safety, to be devoured by lions.^L12

Law in the Lean Economy is limited. The moral sensibility from which it comes is, as Michael Oakeshott put it, “educated”—the law is there not to require virtue but to underwrite contracts. More generally, it is there to establish the rule-making and rule-observing republic—a society whose liberty is sustained by a texture of rules which, if not actually made by the people, are the accomplishment of a just culture in which the people participate, and towards which they feel ownership. Like the rules of games, the laws are not necessarily moral statements, and they may seem arbitrary, but they form the grammar by which citizens can make and sustain their community and its laws, its fortitude and its flow, conversation by conversation.^L13

Related entries:

Lean Law and Order, Assent, Calibration, Constructivism, Rationalism.