When law is part of the problem
By John Gardner
The law is often an ass. More often than ever. Modern governments, their hands tied by the robber-barons of global finance, often try to assert their power with their feet: by kicking out at another supposed social problem with another big policy initiative. Usually they come up with an accompanying raft of new laws. Legislative incontinence prevails. Not only is much of the legislation futile and even counterproductive from the start, we are also left with ever more relics of now-forgotten reforms. Between 1997 and 2006, for example, more than 3000 new criminal offences were enacted for England and Wales, while only a tiny number were repealed. In spite of promises from the current government to turn over a new leaf, the trend towards throwing new laws at everything continues apace.
Most of us escape the consequences of this massive but pathetic display of governmental machismo only because the law is erratically enforced. This means that in two distinct ways we are not living under the rule of law in Britain today. First, there is so much law, touching on so many aspects of our lives, that it would be impossible for us to grasp it all, or to follow it even if we could grasp it. Even as a lawyer I can’t keep up with the politicians in their impotent zeal to put a stop to things. Second, we increasingly rely on petty officials such as tax inspectors and police officers to turn a blind eye to some violations while coming down hard on others. Since there is no way that all this junk law could be enforced, there is increasing pressure for it to be enforced selectively, and increasing latitude for the selection to be done by fear or favour. So big corporations can enjoy cozy relations with the police that are denied to those who inconveniently protest against corporate power. This kind of selectivity is also anathema to the rule of law. Under the rule of law, it shouldn’t be one law for the powerful and another for the rest of us. Even News International is pursued only because they made the silly mistake of upsetting some very big cheeses. You may say it was always thus. I don’t deny it. I only say that the huge expansion of legal regulation is part of what props it up so effectively today. So much law means lots of extra openings to enforce it unevenly, including for reasons that are dubious, shadowy, or downright corrupt.
The ideal of the rule of law is the ideal according to which it is the law that should rule. Some people (I call them ‘law and order types’) believe that we live under the rule of law only when everyone obeys the law. So student unrest in Parliament Square is as much of a threat to the rule of law as police brutality in quelling it. This makes it possible to justify the police brutality (although illegal) in terms of the rule of law itself — better a bit of summary punishment from the boys in blue than a whole lot of burnt-out cars. This is the symmetrical interpretation of the ideal; it condones the authorities in meeting illegality with illegality on a level playing field. Bernard Williams has some interesting things to say about this ‘level playing field’ in his posthumously published book In the Beginning Was the Deed. He thinks that a goverrnment that meets terror with terror fails in respect of what he calls the ‘Basic Legitimation Demand’. I agree. Such a government has ‘become part of the problem.’
So I favour, instead, the asymmetrical interpretation of the ideal of the rule of law. On this interpretation, the rule of law requires an unequal struggle between officialdom and the rest of us. The law should be such that ordinary people can obey it, whether or not they do. The rule of law is threatened when the law becomes so arcane, so vast, or so vague, that people can’t be guided by it even when they try. But the rule of law is also threatened, in a different way, when people can’t rely on the law to predict how officials will react to their breaches of it. It follows that officials, as distinct from ordinary people, need to follow the law scrupulously for the rule of law to survive. Their disobedience — including their fear or favour in upholding the law — is a threat to the rule of law in a way in which, or to an extent to which, ordinary law-breaking by you or me is not. We could put this in different terms by saying officials of the law have an obligation to obey the law that most of us don’t have. That is because, as officials of the law, they have an obligation to uphold the rule of law that the rest of us don’t have. We are the beneficiaries of the rule of law; they, when in official capacity, are its functionaries. We should laugh at stupid laws. They should uphold them.
This asymmetry creates an intriguing moral problem for the law, especially but not only the criminal law. On many occasions police officers, prosecutors, lawyers, and judges have a moral obligation to call me to account for breaking a law that, as they well know, I had no moral obligation to obey. I have written about some aspects of this particular moral problem in a couple of recent articles (‘Relations of Responsibility’ and ‘Criminals in Uniform’.) For those who are interested in such things I have also lately attempted a more abstract and general defence of the asymmetrical conception of the rule of law, showing how it connects with timeless philosophical puzzles about the very nature of law. It is a surprisingly short step from thinking about these timeless philosophical puzzles to thinking about the most severe delusions of our age, including the delusion that more law and more law-abidingness could help us to mitigate, maybe even to heal, the social ills of rapacious contemporary capitalism.
John Gardner is Professor of Jurisprudence at the University of Oxford. He has also taught at Columbia, Princeton, Yale, the Australian National University, and the Universities of London, Texas, and Auckland. Called to the English Bar in 1988, he has been a Bencher of the Inner Temple since 2002. He is the author of Law as a Leap of Faith: And Other Essays on Law in General, in chapter eight of which he defends the ‘asymmetrical conception’ that he sketches here.