As there was in Granny Roseleen so there is in Jenny McCartney:
Here’s how I like my law: sharp, clear and tightly worded, so that everyone – even those with soup for brains and the morals of an alley cat – knows when it is being broken. For an example of how not to do law, however, we must look to the Council of Europe’s convention on violence against women,
Quite. If there is to be a law we must, all of us, be able to understand it.
Mentioning Ulster has brought to mind a religious analogy. The Catholic Church operated for centuries on the idea that the proles shouldn\’t worry themselves over much. Allow the, quite literally, priestly caste to worry about the details and those proles should just do what they are told by those in the know \”interpreting\” matters.
The Protestant revolution was, in part (it never does to strain these analogy/simile things too much) that the Bible, when in the vernacular, as clear an outline of God\’s will as any should need. Intervention was not needed, a man could commune directly with the Word and the Will of God.
On the matter of the law I am a Protestant. As rigid and unyielding as any Puritan, Lutheran or Calvinist. With a twist of course: the law must be written so that it can be understood directly, without that intervention of the priestly caste of lawyers, accountants, diversity advisors or bureaucrat\’s helplines.
If you cannot write a law with the clarity of \”thou shalt not kill\” then go away and think through what it is that you\’re trying to enact, the language that you are using to do so until you can, with clarity, tell us what it is that we must not do at fear of time in pokey.
That modern society is complex is no excuse. If you cannot write simple and simply understood laws then better that we have fewer laws.
That the Puritans went gargantuanly off the rails by using their new found revelations of God\’s Will to tell everyone else what to do is true. But I do find it interesting that our new would be ruling class, the nomenklatura, are adopting such a Catholic view of the law. We\’ll make it all so complex that no individual can understand it and thus there is the necessity of that nomenklatura to tell people what to do in detail by \”interpreting\” it.
A rather obscure (to most people) Russian author wrote about just this in her 1957 novel.
“There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt.”
Dr. Ferris from Atlas Shrugged
This is all by design. Not an accident. Not about unintended consequences. All very deliberate.
Ayn Rand saw this coming a long time ago, and the sheeple either chose to ignore it or couldn’t bring themselves to believe that our Governments were malignant rather than benign.
Naive and foolish. And now we pay the consequences.
“thou shalt not kill”: but there are those who say that the actual prohibition is “Do no murder”. That certainly sounds more plausible.
But the law is written by lawyers. So the ‘priestly’ class keeps its secrets to itself, and the fee income rolling. If the House of Lords was allowed to do it stuff properly we might have better written law.
In the case of the complained about legislation it emanates from Europe, so is slanted by the Code Napoleon, was drafted by principally Catholic lawyers and has gone through the mill of translation. No wonder it’s garbled(age?)
@ DA Bang on.
The Protestant idea that the Bible could be interpreted directly by an ordinary person was always fundamentally flawed. The Ten Commandments appear clear, but nuances are lost in translation, as dearieme has pointed out. But have you ever read the rest of Exodus after the Ten Commandments, Leviticus and Deuteronomy? They consist almost entirely of Jewish case law, in minute detail and in many cases evidently a summary of the judgement in a particular, often really quite extraordinary, case – such as what should happen if a pregnant woman gets caught up in a fight between two men and loses her baby as a consequence (Ex 21:22-25). Jewish, Christian and Muslim scholars have been studying this case law for centuries, and mostly misunderstanding it or wrongly applying it.
So, Tim, although I admire your ambition to have the law “clearly understandable of the people”, I don’t think it is remotely achievable in practice. We will continue to have our priestly caste of lawyers, accountants and the like misunderstanding and misapplying our laws too, and the rest of us ignorant sheep will continue to go “baaa” meekly as they instruct us.
An understandable law is entirely plausible, but otherwise I agree with Frances.
Additionally, we must remember that Protestantism wasn’t what it claims it was. It was a fundamentalist movement similar to the one in the ISlamic world at the moment (and caused a similar eruption of violence). There was no intention for individuals to interpret the Bible for themselves. The rejection of the Catholic priesthood was simply a rejection of the Catholic organisation, so that the Bible could be freely re-interpreted by the cult leaders such as (particularly) Calvin. In other words it was a sort of fake democratisation. You don’t have an official priest, but you have a presbyter, much like an Imam, who tells you what the Bible means. Imams aren’t priests either, remember. They’re supposedly lay community leaders.
The Bible, treated as a lawbook, is an opaque document. It was never intended as a lawbook. The Catholic priesthood actually made sense in not handing copies out to the unwashed, since without a huge layer of interpretation over it, the Bible’s a hand grenade with a wobbly pin. It can mean anything and, as we saw in the Reformation, groups who did start interpreting it for themselves did indeed interpret it to mean just about anything, with disastrous consequences. You have to go through it deciding whether or not your particular sect is going to follow Thou Shalt Not Seethe A Kid In Its Mothers Milk and whether you’re on the “turn the other cheek” or “I come with a sword” side of things.
So anyway, rejecting Orthodoxy wasn’t really about “everyone can have a go”. It was about justifying the various nutty heresies that comprised Protestantism. It was “don’t listen to them, listen to me!”
Anyway, the basic point is sound. It is fundamentally unjust to try a man for committing a crime if it can only be ascertained whether or not what he did actually was a crime in a courtroom. But this is hardly new. My own hobby horse, obscenity legislation, has invariably been written in such terms, and that is one reason it has always been unjust.
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“The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?” – James Madison, Federalist Paper #62, 1788
It still holds true.
It seems to me that the characteristic of the Proggie State is that the Parliament turns into a kind of “law mill” churning out laws ever faster. This is one of my arguments for why the gravest error you can make is to have a standing legislature. Making laws should be rare and difficult.
I remember a story in the newspapers before the end of the Broon Era, when it was reported that Labour MPs were complaining that there weren’t enough new laws and the government had “run out of ideas” for new laws. That such a story could be run, and seem like a reasonable attitude for legislators to hold, seemed to me to be proof of a polity in terminal decline.
If you are so foolish as to send people to a large impressive institution and tell them they are there to make new laws, making new laws is what they will do. A Parliament is the worst manifestation of that incorrigible evil, the “standing committee”.
There was a Norse tradition that each year a fraction of the law code was read out and reapproved. If a bit wasn’t read out and nobody noticed, it vanished from the statute book. Seems like a good one to bring back.
Frances: There’s more than one set of commandments, too. Exodus 20 and Exodus 34.
I’m not sure you’ve got the Catholic – Protestant analogy the right way round.
At least in the Catholic Church (and, to be fair, the Anglicans) there was a law and a court system, and guilt was decided by following a set of laws, even if the interpretation was not always easy.
But as one descends deeper into Protestantism it increasingly became someone’s opinion as to whether you were a bad’un.
Whether that someone was a charismatic leader or a dour committee of elders, it still became more opinion-driven rather than law-based.
Yes, UK law is much more volumnious than would be optimal. And governments are too eager to make new law.
No, UK laws are not particularly difficult to read or understand, especially not with the aid of hyperlinks.
No, it is not possible to create a set of laws with no boundary cases that will need court rulings.
The “Convention on preventing and combating violence against women and domestic violence” is not going to be straightforward to incorporate into national law. Article 40, which has attracted unfavourable comment, is rather ambiguous in its requirements:
What is intended by “in particular”? What, legally, is “dignity”? What is an “offensive environment”? Which bits should attract criminal sanction?
However, all this ambiguity should be resolved in the translation of the convention into law, and not left for the courts to rule on.
Oh yes, that’s the other thing. You’ll never have a free or just society if it is the job of judges to decide what the law means.
Inclined to agree with PaulB @14, here. I would add that a number of people, including judges, have commented in the last decade that the quality of legislation seems to be getting worse (and sometimes supposedly urgent legislation isn’t brought into force).
A Parliamentary committee wants to “hear your views”:
http://www.parliament.uk/business/committees/committees-a-z/commons-select/political-and-constitutional-reform-committee/inquiries/parliament-2010/better-legislation/
Ian B. Think in general terms of a law to be implemented in the free and just dystopia where you are dictator. Offer us a specific wording for the law. Then I will think of a difficult case for which the law is unclear. How do you think such a case should be resolved?
Thinking about it some more, I’m not sure this is true.
What will lead to the more just outcome, a legislator / legislature deciding what a law means, or a neutral decision-maker that hears both sides of a dispute essentially about what a law means?
I think that the Twelve Tables of Roman law would be a rather better analogy.
Matthew L
Actually the entire Jewish law is more-or-less duplicated or even triplicated in the Pentateuch. For example, the “eye for an eye, tooth for a tooth” advice comes in three different places: Exodus 21:22-25 (where it would be the sentence handed out if the pregnant woman HERSELF was injured, but not for the death of the baby), Leviticus 24:20 (where it refers to any case of personal injury) and Deuteronomy 19:21 (where it is also applied in cases of false witness where the person slandered would have been injured as a consequence). The same legal principle applied in three totally different circumstances and written up as three unrelated pieces of case law. And you think UK law is complex?