In the midst of all the ephemera we are surrounded by, I certainly think we need to know certain things: even if only ‘know’ them in the sense of be aware of them, rather than be convinced by them. I see some people contributing to sense – historians and lawyers – but they rarely simplify things so they can be taken as precepts and actually do some good work in the world.
Let me distinguish law, convention and policy.
Some figures recently, including Lord Sumption, have made much of the distinction between law and convention. This is very important.
Law is exact. It is formally a frame. It is a coercively-backed set of rules (rules = straight lines) by which we force the world to stick to the straight and narrow and chastise it when it does not. Law is written. It should be simple. But there are lawyers and there is the chaos of events, and so law, especially in the last 50 years, is anything but simple. Not only is there technical complexity of the equity, tort, writ sort, a complexity of quality, but there is also a complexity of quantity: as our governments, including especially the European Union, have used law as a tool of policy – perhaps to make up for a lack of convention. The law code is now colossal: worse than the U.K. tax code, which is the worst there is.
Convention, I take it, is an established way of doing things, grounded on an established set of assumptions, perhaps about how things are usually done or ought to be done, that offers guidance in a way that is far more human, far more to do with speech and gesture, than the inhumanity and bewiggedness and coerciveness of law. We don’t talk about custom or habit or tradition much nowadays. The French talked a lot about moeurs in the 18th century, and the Romans were famous for their mores: the root of our English word morality, but which actually means ways of doing things, habits, customs, manners.
Lord Sumption has written in several of his recent books, including his Reith lectures, that we should do as much as possible by convention, not by law. Especially for the sake of politics. This is an unusual thing for a Law Lord to have said: and it is to be treasured for that reason. Otherwise, I would say never listen to lawyers on the question of whether law is needed or not. They always will say it is.
Take the great problem of our time, free speech. Ideally, we would not need to legislate about freedom of speech. Legislation is out of place, since law is about definition and exactitude: but freedom cannot be defined and the content of speech cannot be legislated for. In speech we find all the panoply of intention, context, audience, satire, irony, education, meaning what one says, saying what one means, not saying what one means, not meaning what one says, etc. etc. I think it was Peter Hitchens who said, a few years ago, that he could not disapprove of some of the criticism of “hate speech”, for the reason that much speech of a certain sort seemed to be impolite or impertinent. Impoliteness, impertinence: good words. They refer to our having a sense of what is appropriate. One might think something, quite honourably, but one might not say it to a particular person.
Social media has, of course, ruined politeness and appropriateness, and hence damaged whatever freedom of speech is: because everyone feels able to broadcast their opinions absolutely publicly, as if they are politicians, while not at all being politicians (lacking the political sense that one should not say certain things publicly). But, as we have seen from, say, the appalling case of Samuel Paty in France four years ago, it is possible to provoke horrific acts if one even opens the subject of freedom of speech in a class, especially if it is misunderstood by those who react to it. I see from reading about that case that the brutal murder of Paty was a consequence of a report made by an unscrupulous girl who misrepresented what had happened in a class she did not attend, provoking her father to post about the subject online, which in turn provoked a radicalised boy to travel some 60 miles to murder the teacher. Shot dead, the murderer was later buried with some honour in his original country of Chechnya.
This grim tale is an exquisite example of what I would call the explosive consequences of the collapse of codes of politeness and proportion and even privacy which should be habitual in any society. By ‘privacy’ I mean that speech should be contained, should be able to be free within a certain context, such as that of a class, or a conversation. This is how it mostly was in older times.
We have turned from convention to law in recent times out of a sense that conventions no longer hold, can no longer restrain reality. And this is appalling: this extension of law, and especially the extension of law to do things, to impose policy.
Policy, formally, should be distinct from law. Policy is about doing things. Law is about how things are done (on the formal, exact, enforced side). Convention is also about how things are done (on the informal, inexact, unforced side). When conventions – habits, politeness, manners – break down we increasingly fall back on law, and finally on policy. In our current situation there is a dreary tendency for us to make every broken convention a matter of law and to make law a weapon of policy. This is a patching up of our society using policy and law and is certainly not to be encouraged.
I think that the current established elites think that our society can be held together by law and policy. It can be: if we want to be ruled by a heavy coercive state. But it should not be. Ideally, conventions would do most of the work. But, unfortunately, it is convention which is understood least and respected least by immigrants, and, unhappily, convention which is also despised most by our eager indigenous advocates of various exciting policies about climate change, various inequalities and injustices, and, of course, needless to say, COVID-19.
COVID-19, I saw, was mentioned again by Private Eye (No. 1634, p. 27), as if we should have stopped talking about it some time ago. In the satirical pages there was a not very satirical article which argued that there are some of us who “are unable to stop writing over and over again about how lockdown was the worst thing ever and it would have been much better to simply let everyone die”. Now, Private Eye has not covered itself with glory on this subject, as everyone knows. And here it is simply being irresponsible.
Maybe I’ll write about satire on another occasion. But all the experts say that satire only really works when there are established and agreed conventions that make the satire work. Private Eye made sense in the fairly stable world of the 1960s. Admittedly, it was part of the jumped-up new impertinence that reacted against Macmillan, quite possibly justifiably, but then it has become over the decades a central organ of the jumped-up self-satisfied impertinence of the new Establishment. This, I suppose, is acceptable to those who believe that the new Establishment has its conventions. Perhaps in the suburbs it still does. But the new Establishment is the establishment of law and policy, not convention: and so we see Private Eye finding it harder and harder to establish a secure ground for its satire. It is just about there in the books pages (e.g. in the observation that if Blair says we cannot not trust the word ‘trust’ in politics, then we should not trust Blair), but everything else, and even this, just seems to be satire of the pot-calling-the-kettle-black sort. (The first law of the British press is that the only thing it can wholeheartedly condemn is hypocrisy.) And, again, Private Eye was incapable of being satirical about the Covid response. It simply did not know what to do about it, except bang the pan.
It should be better known than it is that civilisation, where it exists, depends on conventions, manners, moeurs and mores. (O tempora, O mores!)I do not know how we can reconstruct or rebuild conventions, but it is obvious that the absolute preliminary is that we recognise that we should stop trying to do everything by law or by policy.
Dr. James Alexander is a Professor in the Department of Political Science at Bilkent University in Turkey.
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I think that the current established elites think that our society can be held together by law and policy
We’re living in a dangerous time – a danger that comes mainly from our politicians and our Establishment.
The history of the Soviet Union shows that ultimately law and policy are not enough. Law and policy will fail, and their failure will produce ever-more coercion, which in turn will fail, and in turn produce ever-more coercion. This is where the present UK Establishment is heading. However, we have to bear in mind that, for example, the Russian Marxists’ slave-camps, their use of judicial torture, and their vast state-sponsored famines were not accidents or mistakes – they were the inevitable consequence of the Soviet Union being governed by a small group of people which believed it had the right to coerce people’s behaviour – like our current Establishment.
These means that we – as a matter of urgency – have to return to freedom. But freedom has only arisen in culturally unified high-trust societies that exist within sovereign nation-states. Thus it’s very significant that these two fundamentals are under unprecedented attack by our own Establishment.
It’s interesting to note what Putin says about the West on this point.
He compares the West now to what Russia was decades ago.
“Why would I want to invade Europe when it’s doing such a good job of destroying itself”.
It’s also interesting to note how the eastern European former “communist states” in paricular are rejecting The New World Order, maybe because they’ve lived under one.
In Russia today, the USSR is in the process of rising again.
‘Today, a new version of that same Gulag system is being reconstructed, especially for Ukrainians. Journalists, war-crimes investigators, and specialized groups such as the Reckoning Project have already documented arrests, murders, prisons, and torture chambers in Ukrainian territories under Russian occupation. Slowly, it is becoming clear that these are not just ad hoc responses to Ukrainian resistance. They are part of a long-term plan: the construction of a sprawling system of camps and punishment colonies—a new Gulag. The Associated Press reported yesterday that it has evidence of at least 40 prison camps in Russia and Belarus, as well as 63 formal and informal prisons in occupied Ukraine, containing perhaps 10,000 Ukrainians. A few are prisoners of war: Gulagu.net, a Russian prison-monitoring group, has evidence of Ukrainian soldiers in Russian prisons who arrive without proper papers or POW status. But most of the Ukrainian prisoners are civilians who have been arrested or abducted in occupied territory.’
Anne Applebaum June 2023
Trump’s approach will surprise many Putin wannabees and their apparatchiks in this country and across Europe.
Anne Applebaum might be just a little bit biased and anti Trump/Putin/Russia and pro continuing the war in Ukraine “for the sake of democracy”, if her wiki pages are anything to go by.
And don’t we throw people in jail for on-line comments!
“But freedom has only arisen in culturally unified high-trust societies that exist within sovereign nation-states. Thus it’s very significant that these two fundamentals are under unprecedented attack by our own Establishment.”
Brilliantly put.
It would appear to me that only patriots and generally decent people give a damn about true freedom, the kind that our forefathers laid down their lives for. The nasty, unpleasant people and traitors we have the misfortune of coexisting with only wish to weaponize their rights to freedom of speech/expression for their own ends. Shamefully, it’s become undeniably clear which side the politicians, police and judiciary are on;
”Just when the pro-Palestinian demonstrators could not get any lower, they have gone from the gutter to the drain. They plan to demonstrate on Remembrance Sunday. A follower writes.
“Hi David, look at this!! They normally hold their terrorist marches on Saturdays but now they have chosen Remembrance Sunday.
“Local MPs have been contacted & have said there’s no clash so it will still go ahead. Absolutely disgraceful.
“We can’t even have something we’ve had for years remembering those who fought for OUR freedom without it being hijacked
“Please don’t post my username/profile due to my job.”
The left & the Muslims who are doing this, could not be more offensive. To me it is like Neo-Nazis turning up to hear the Last Post.”
https://x.com/DaveAtherton20/status/1854112739896983694
Absolutely.
The replacement of good manners by laws makes for a poorer sadder society.
Agreed. A silly example, but pedestrian crossings are/were a pact of law, safety and politeness between citizens. It was conventional for the pedestrian to wave thanks when the motorist stopped. I remember that children were taught to do so at school.
Now many crossings are controlled by traffic lights. Safer perhaps it may be, but it breaks that pact by forcing the motorist to stop – often unnecessarily – on an otherwise empty street. And why would you thank anyone for obeying a red light? So another little act of politeness and citizenship slips away
On the other hand many motorists now thank each other (raising a hand) for pulling over which wasn’t the case a couple of decades ago. Others put flashing lights on to signal “thanks” when another driver lets them go in front for instance so I don’t think all is lost and we can all show good manners when we want to.
I do not think we should attempt to use the law to “force the world to stick to the straight and narrow” because that implies the end of nation states and could only be conceived as a supra national bureaucratic autocracy. Weas this a poor choice of words and did the author intend to say “people” instead of “world”.
Regrettably, law has become less and less exact as more and more of it is spewed out of Parliament. Most MPs do not read and only have a vague understanding of what the Minister (on a brief from his civil servants) says the proposed law is meant to do. The situation is even worse for regulations issued by quango regulators with no Parliamentary oversight and no accountability.
Social media has only caused bad results because too many people pay attention to it. They believe what D-class celebrities and D-class political commentators write. In the days before social media the pub was (and should be ahgain) the main arena for unscripted comment. Also places of work, especially outside offices. The fact is that there was a lot of silly, course and also amusing comment in those forums before social media. People have taken too long to learn how to use and react to this newish medium but more responsible commentary by the old media would have helped, after ll it was it their interest to show how sensible they could be in comparison – but they flunked it.
In all these issues there needs to be leadership. Political, business and other leaders ought to have responded maturely to all this but most of them seem to have been too immature themselves to do so. The left, as usual, welcome anything which will undermine established mores and societies because they want the chance to build their new Jerusalem after the chaos and collapse they so much hope for.
On the question of policy versus law, the more law the narrower the space for policy and the more the courts entertain restraint orders and the impression has been given that judges do it with enthusiasm unbefitting their role.
Private Eye has been enthusiastic for the newish self designated ekite so it has nothing really to say worth reading. I did cancel my subscription some years ago!
Whatever Sumption wrote in the past on the pandemic restrictions (which at least made him better that the rest of the tribe of senior judiciary; I cannot recall him or any others condemning the recent episode of the judiciary conniving with the rest of the establishment to arrest and rush through trials and convictions in the first place, let alone the size of the sentences.
Law is discovered, unwritten (but may be codified) and gives us our passive Rights, legislation – incorrectly referred to as “law” is invented. The purpose of legislation is to replace and/or undermine the Law which restricts the State and protects the citizen.
We don’t have a political class or Establishment that wants to recover our freedoms. Which is why we have to change them.
Voting for any branch of the Uni-Party won’t work.
The following is completely and utterly wrong, simplistic and frankly lacking in any intellectual or other merit:
“Law is exact. It is formally a frame. It is a coercively-backed set of rules (rules = straight lines) by which we force the world to stick to the straight and narrow and chastise it when it does not. Law is written. It should be simple.”
There is no one type of law. There are laws of different kinds and sources from legislation, delegated legislation and judge made law to laws made beyond the jurisdiction of sovereign states under treaties like the ECHR agreed by governments and not made and not even possibly debated in a state legislature.
There are ambiguities and incompleteness in laws.
This is the second time I have felt compelled to draw attention to the wholly incorrect and misleading nature of the writing of the author of this article.
Under-impressed. Sorry for the students in the Department of Political Science at Bilkent University in Turkey but grateful that they have the benefit of such teaching thus sparing British students.
Your last para is a plea for lost youth. I rather think we no longer have the cohesion for conventions any more. The original reason was just meaningfulness, something everyone has in their hearts, but as language grows in status it makes us live in our heads, not our hearts , where you can join the dots any logical way you like, and meaning is only represented.