What’s the right amount of law? Most people reading this, I suspect, will be convinced it’s the wrong question to ask. We are all taught to assume that the law is one of those things of which you can never have too much, like science, or art, or laughter.
There’s a reason why science is expected to keep on growing forever, which is that you never know what it’s going to be used for. Things end up fitting together in ways that the people who discovered them could never have imagined. The more knowledge, the better.
But law is not, in this sense, knowledge. If you want a better analogy, it is something like architecture or computer code; it is rules to be used a purpose. One of the oldest laws in England were the sixth-century decrees of King Aethelberht of Kent This, for example, is a candidate to be one of the oldest known laws of England, “If a person kills someone, let him pay an ordinary person-price, 100 shillings”.
The rule assumes a victim and a perpetrator, and around both of them armed families. A perpetrator has killed a victim; the victim’s family must be avenged. The king fixed sume to be paid and which the victims are supposed to accept to in order to avoid what would otherwise be a cycle of retribution, with murder requiring murder without end.
The point of that law was to keep the civil peace. In drafting it, King Aethelberht needed to get the content of the law right. It mattered that the compensation was set at 100 shillings (five pounds) and not 10 shillings or 10,000. Make the payment too high and no-one would pay it and victims’ families would have no choice but to seek revenge. But if the compensation was too low, then feelings of resentment would smoulder. Compensation would be paid, and the victim’s families would throw it back in the faces of their oppressors. King Aethelberht’s was justified and necessary if, and only if, it saved lives.
These days, the main problem of the law is that there is too much of it. There is a social contract between ruler and ruled. The ruler expects you to follow some basic rule. If you breach it, you can be punished. The victim of your rule-breaking might sue you (in the civil courts) or the state might litigate on their behalf (criminal law).
The problem with having too much law is that its abundance degrades this contract. A person can be punished for doing something which they neither knew, nor had any reason to know, was wrong. The popular cliché says that ignorance of the law is no defence. That’s true, but in the right circumstances, couldn’t it at least be mitigation?
Which of the following would you read right immediately through on receipt: a) your employment contract, b) your tenancy contract with your landlord, c) the terms and conditions of your travel insurance? And tell me now which minimum statutory terms are supposedly implied into each of those contracts, but were ignored by the drafter in your own case.
All of us are bound, in other words, by a complex set of rules, of which most of us are ignorant most of the time. How then, can any of us meaningfully engage in a democracy, when the main parties are standing on programmes of legislative change. If you don’t know what the law is, how can you evaluate the programme each party is offering you?
*This is not an argument for diminishing democracy*, but for thinking about how we improve it. We have in power a generation of charlatans who will lie repeatedly about what they do. Take for example, Boris Johnson’s promise that his government will carry out a bonfire of workplace and environmental laws. At the last count, our servile press had reported that news story 9 times in the 3 years since he became leader of his party, each time treating it as a major development, honouring it with the papers’ front page. If you don’t want to be left gaping at the news, if you don’t want your friends to be in that position, we need both much more education about what the law is and – at a certain point – its simplification: fewer laws that do better at addressing such life-or-death issues as climate change.
The inevitable consequences of our over-abundance of law include: the existence of a specialist set of people (lawyers) who are expected to know the law when most people don’t. Law is costly, a fact about which radicals have been complaining for centuries.
In 1649, the year of King Charles’ execution, one Leveller John Warr, complained that “When the poor and oppressed want right, they meet with law, which (as [it] is managed) is their greater wrong … [T]he web of the law entertains the small flies and dismisseth the great.” He went on, “Why is our law a meander of intricacies, where a man must have contrary winds before he can arrive at his desired port?” The point I am inviting readers to consider, is that no matter how bad John Warr thought things were in 1649 they are much worse today; and that the gap between the purpose of laws and people’s general understanding of them has widened, to the point where it is no longer a river (“a meander”) but as wide as the sea.
Other metaphors are available. Senior Judges have called immigration law “abstruse”, “an impenetrable jungle,” or have likened the law to a “shanty town” (these are their words not mine: any reader should rage against the colonial subtext to them). Even the judge say there is too much law. And yet, every year, the complexity of immigration law grows.
One way to think about politics in Britain, America and Europe is to imagine that the left and the right have chosen to separate themselves along, of all weird and unexpected lines, a division between people who want more or less law. On the right, politicians who tell their audience that they will shrink the law and, in doing so, make the people happier. “We” will take back control. Better that we spent our own income, rather than have the state tax each of us and fritter the money away on harmful workplace and environmental laws.
Just one drawback with this wretched misunderstanding of politics is that the right never in fact delivers on the promise of fewer rules. A promise which helped to unite the Conservatives and Lib-Dem coalition was the pledge to reverse New Labour’s expansion of the criminal law. In office, the coalition legislated for 1,785 new criminal offences in five years. Or, if you want a more recent example of uncontrolled law-making think of the 425 Covid Regulations made by Boris Johnson’s government between March 2020 and April 2021. It was the greatest volume of extra-parliamentary law-making in the peacetime history of Britain.
If we see this process from the left, the wager of the future of what was once the workers’ movement on a politics which can imagine no greater hero than the policeman or the prison guard, suffers drawbacks of its own. The simplest one is that many people’s attitude towards the law is rightly antagonistic. Think for example of the crowd which formed in Glasgow in May 2021, when people realised that an immigration raid was taking place and a began chanting “These are our neighbours, let them go.” You might imagine a left made up of people who see themselves as “Mr Rules”. Or you might imagine a left constituted of the sorts of people who could be in the Glasgow crowd. It would require a politician of greater talent than anyone to be found on the frontbench of the Labour Party to satisfy both.
For much of the past five years, it has felt as if Britain is being fast-tracked to becoming one of those countries that we refer to euphemistically as a “managed democracy”, with a tame media and purged public institutions, like a mid-Atlantic Hungary. Preventing that fate requires an opposition culture with roots deep in civil society. It is right to feel outrage that, during Covid, our leaders insisted on making public safety rules which they had no belief in following themselves. The idea of a caste of leaders demanding sacrifices from the little people, while making no sacrifices themselves – that offends in the context of Covid, just as it offends when the families of the rich are permitted to raid the state for fake PPE contracts.
Somehow, we need to create a system where two, admittedly contradictory, things take place at once. The law should be tighter in its embrace of the rich, the powerful and the politicians. And, it needs to be looser in relation to the rule-breaking of the poor.
What socialists need to remember is that the true offence is not exactly breaking the rules. Rather it is the refusal to follow those minimum social norms which hold a *society* together. During Covid, hundreds of thousands died; but it could have been many more. What stopped those greater deaths was not the rules, but rather the understanding that the person who would catch Covid felt pain, just like you. It is that sense of basic solidarity which deserves protecting, not the rules which were only ever a means to an end.
This is a taster for my book, Against the Law: Why Justice Requires Fewer Laws and a Smaller State, which is published by Repeater on 12 July and available for pre-order now.