Sunday, November 17, 2013

Law - and its limits


Two of the first philosophy books I studied at university were Thomas Hobbes's Leviathan, and John Stuart Mill's On Liberty. They offer contrasting views on the role of law in society; a debate that's relevant today whether you read dusty old books or not.

Leviathan was published in 1651 and needs to be seen in the context of the civil unrest at that time. Its central idea is that society is a social contract between men to submit to laws, rather than live in anarchy. Without government there is continual fear and danger of violent death, and the life of man be solitary, poor, nasty, brutish and short.

Hobbes favours a strong monarchy and gives barely a passing mention to the notion of democracy. Clearly, this is out of date, but what's still relevant about Leviathan is the concept that the role of law is to protect us from a worse fate - and that we require strong powers to do so. Hobbes says little on the limits of law or the concept of personal freedom.

In contrast, John Stuart Mill's On Liberty (published in 1859, and after the impact of French Revolution), starts with the innate rights of man. Mill says that the only legitimate purpose for which power (laws) can be exercised is to prevent harm to others. On Liberty, sets out the basic liberal principle which remains influential - that we should all be free to do as we please, so far as we don't impact the freedom of others.

This tension between the limits of  the State (even if protective of its citizens) and the desire for personal freedom, is still very much alive. The furore over Wikileaks is a modern manifestation, so too is the debate over freedom of the press, laws to fight terrorism...  Less obvious, but essentially a similar debate, is the role and limit that should apply to taxation, welfare provision, social obligations and behaviour.

So for some (Mill), freedom is about an absence of restraint; for others (Hobbes, and ironically many Socialists too) it is about securing the conditions that allow us to meet our aspirations. In practice, we compromise and pragmatically sway between one view and the other. But the side of the divide you're intuitively on has massive implications for the law and its role in our society.

I'll close this post with mention of another book from university: Hedley Bull's, The Anarchical Society (1977). Somewhat out of date already, it nonetheless poses the question of how we best regulate the world of independent Nation States. Oh God, it's getting even more complex...

Another time perhaps.

5 comments:

  1. Back to the Holy Roman Empire then....just like the U.N. of our day: great claims not borne out in reality.

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  2. Helen - and you a former lawyer too! (Actually is that possible - aren't you always a lawyer? Perhaps it should be 'lawyer, non-practicing')

    Wonder what it's like in Costa Rica - much the same I expect?

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  3. Retired....but still fascinated by law and the practice of law.
    I did think about qualifying in Costa Rica.....but I've other responsibilities which take precedence.

    When it comes to a social contract I've always favoured Locke over Hobbes; but in reality law is made by the powerful to protect their own interests - we've been lucky to have periods when some of the powerful have also been just.
    We're not living in one such period at present. Anywhere.

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    1. I'm with Helen - preferring Locke: 'Where-ever law ends, tyranny begins, if the law be transgressed to another’s harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate...' But it's idealistic. It's naive. It fails to understand that laws are socially constructed - and that social construction is in the hands of the powerful.The powerful will forever be those who control cultural and social definitions - and this includes drafting and interpretation of law and laws. I fear now (years after graduating with that law degree and years after beginning practice) that my faith in law and legal process was deeply misplaced. Law places conflict or dispute in the hands of 'other people' - the lawyers and the judges. The parties become invisible. Their choices dictated by 'what the law or the process permits or recognises and validates'. I've noticed that mediation outcomes are every bit as 'good' or 'positive' and productive as those reached in a court room. The empirical research is beginning to validate mediation as a positive route to resolution of disputes. From relatively minor community disputes, to family disputes to the type of mediation which takes place in those countries reforming after genocide or decades of civil war. Law certainly has its limits. Not least that it is not really about justice.

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    2. And for the record so am I - Locke and Mill and the whole bally lot of those old liberals !! The point about mediation is interesting and rings very true - so too does the 'law places conflict and dispute in the hands of other people'.
      And sadly, policy as well as law is not about justice either.

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