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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