Jamie Whyte
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Being the oldest and the toughest, my sister Fiona was queen of the kids in our neighbourhood. Among her reginal prerogatives was deciding the rules of the games we played.
She was not very good at it. For, besides being tough, she was fair at least, in the “social justice” sense of the word. She wanted victory to be shared out equally among us children. If Robbie Stone had won several games in a row which, being a fast runner, he often did Fiona would change the rules so that speed conferred less advantage.
Of course, under the new rules, some of us would still win more than others. So Fiona not only changed the rules frequently but also designed them to give the referee (herself) great discretion in deciding which actions were allowed. The athletic Robbie often fell foul of her vague injunction against competing “too aggressively”.
Long before I read Friedrich von Hayek, my sister taught me that
you cannot administer social justice while preserving the rule of law. She also taught me the price of undermining it.
When the players (citizens) cannot know in advance what they are permitted to do, they divert their efforts from playing the game to lobbying the referee for favourable decisions. And some stop playing altogether. Robbie's frustrations first led him to slack off and eventually caused him to migrate from our gang. Fiona's just distribution of victory came at the cost of tyranny, corruption and a poor standard of play. It is fortunate our games did not produce our livelihoods.
Fifty years after Hayek wrote The Road to Serfdom, the Labour Party gave up on running the economy according to my sister's model. They agreed that resources should be allocated not at the discretion of the authorities but by voluntary transactions between individuals acting in accordance with a set of clear and stable laws. In other words, they rejected the command
economy in favour of the market economy.
Apart from commerce, however, Labour politicians have not learnt Hayek's lesson. On the issues that interest them most no longer the ownership of the means of production or the distribution of wealth, but what we might call the ethos of the population they are busily undermining the rule of law.
They are doing this in two ways. One is to pass laws so vague that you cannot know, prior to the decision of the relevant authority, whether your actions are lawful. Suppose a Baptist preacher tells his congregation that God sends atheists to Hell. Does this violate the new law against inciting religious hatred? The preacher cannot know before
his sermon. He must wait to see how the authorities feel about it afterwards.
The same goes for the other hatreds we must not incite and for much anti-discrimination law. When the boss stands up at the Christmas party and tells the one about the bishop and the actress, is he breaking the law? Is he creating a “hostile environment” for his female employees? He will know only when the employment court makes its ruling.
This erosion of the rule of law is not the avoidable consequence of poorly drafted legislation. It is impossible to state clearly what constitutes a hateful remark, a hostile environment or neglectful parenting. If the Government wishes to rule out such things, it can only pass vague laws and delegate the power to interpret them to its agents.
It must replace the rule of law with “the rule of men”. Knowing whether your actions make you liable for punishment is not a matter of reading the legislation but of predicting the sensibilities of the authorities.
And not just towards your actions but towards you. Despite their risky assertions, polemical atheists and evangelical preachers have little to fear from the religious hatred law because the authorities who wield it at their discretion have different targets in mind, such as BNP politicians and Islamic radicals. Justice may be blind but the Home Secretary is not.
The second erosion of the rule of law comes from the Government's open contempt for the idea that the law defines the scope of the Government's interest in you, that you can be on the wrong side of the Government only by being on the wrong side of the law. For example, it is not illegal to have fat children. Yet we know that the Government disapproves of parents who do, since it sends them letters pointing out their children's obesity. “We've got our eye on you,” they insinuate. To which a free man should respond: “If I have committed a crime, arrest me; otherwise, leave me alone.”
But this generation of Labour politicians cannot leave us alone. For they are convinced that they have attained a new level of moral insight and feel duty-bound to improve us. There is no topic on which the Government does not have some recommendation for how we should behave: from what we say about homosexuals, to what we eat, to how we raise our children. They admonish and cajole and “educate” and hint at impending penalties for those who do not fall into line.
The trend is unlikely to reverse. The idea that all of the Government's demands on us should be stated in law has lost support, even from its most likely sources. In a recent editorial defending Gordon Brown's Britishness campaign, The Spectator claimed that “immigrants must do more than simply pay taxes and obey the law”. We must also do what Gordon Brown tells us is British! Britain may no longer be a command economy but it is becoming a command society.
Jamie Whyte is the author of Bad Thoughts: A Guide to Clear Thinking
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In the 1980s I watched a trial under the Race Relations Act in Newcastle of several National Front members. They were accused of distributing material "likely, having regard to all the circumstances to incite racial hatred." As I recall one of their number had plead 'Guilty' whilst the rest plead 'Not Guilty'. Eventually those who had plead 'Not Guilty' were found 'Not Guilty'. The Judge then directed that the one who had plead Guilty was in fact 'Not Guilty'. A strange law indeed when the accused doesn't know if he is Guitly or Not!
Pat Harrington, Edinburgh, UK
To Mr Peter Crombie,
Whilst I agree that the Cromwell quote can be applied to the
current labour Government, your following comment , "followed
by civil war" is inaccurate, This quote is from Cromwell`s speech dissolving the rump Parliament in April 1653. long
after the English Civil War had ended.
Denver Watt, Osaka,
We are all 'criminals' today by default. Many journalists are well paid for writing 'sexy' articles which achieve a 'hear-hear' from readers.... then all go back to 'cake and circuses' and nothing changes. Remember Cromwell going into House of Commons 'You have tarried too long in this place for what good you have done.... in the name of God.. GO'..... followed by Civil War. People younger than circa 50 will not have been taught that. We need a modern day 'Cromwell' to 'take up arms', metaphorically but preferably literally to lead the electorate and throw out this lot. I have military experience and fully understand 'Action to support the civil power'. The 'civil power' is the electorate or, as Americans would say, We The People. At 74 my brain is sharp but PULHEEMS are aging!
Where is todays Cromwell or Lincon...
Peter Crombie, Garstang, PR3 0JE
I encourage everyone to "Read all comments" and look at the the response from P Orphyry from Skipton (second comment). I've never heard it put in a better way.
It's becoming the people against the government in the U.K. The good thing is, we all know how these things end. You only need to look back to the 90's in Eastern Europe.
PAUL MARSHALL, CODDENHAM, SUFFOLK
We are living through the first stages of what caused people from Cuba and East Germany to migrate to the United States. However, in very British fashion, it has not manifested itself in violence but the insidious force of political feeling and sentiment. A good government should seek to lead a free people, not control it.
James, Sunderland, England, UK
The vagueness of statutory wording is primarily the result of EC law becoming ever more prevalent within our legal system. This 'vague' legislation exists to be read purposively - that is to say that the statute will remain broad so that it can be applied alongside common sense.
Far from encouraging an Orwellian state it often works better than the common law system of binding precedent in which judges often find excuses to skirt around the rule of law anyway (Denning anyone?)
Such an approach exists in the majority of European countries where the rule of law is only marginally less certain. Although I find many faults with the current government, this is certainly not one of them, and I find much of the criticism - both in the article and comments - to be misguided.
Regarding child obesity I also disagree; the government cannot sit idly by and watch the average NHS bill spiral out of control or we could face financial problems far worse than those resulting from CDOs and SIVs.
Nick, Guildford,
And you Brits wonder why people in the USA take the right to bear arms so seriously?
RAJones, Nashville, TN
You could argue by the same reasoning that the drink-drive laws are unfair too, since the average drinker is prevented by law from buying, owning or using a breath-alcohol meter, yet we are required to judge whether an amount of alcohol will put us over an arbitrary limit that can only be measured by this equipment we are not allowed to have.
Dave, Basingstoke,
Excellent article.
Shame the government will not be able to benefit by reading it, they are too busy changing and drafting new laws!
We are all equal now, equally guilty of something or other.
Alan, Luton,
"In a recent editorial defending Gordon Brown's Britishness campaign, The Spectator claimed that 'immigrants must do more than simply pay taxes and obey the law' "
So, as one of those English-speaking, law-abiding, Christmas-celebrating, tax-paying, white-collar immigrants. I would like someone, anyone, to tell me what I must do to make me more acceptable to the British public.
Because it seems that whatever I do, the British Government / Councils seems intent on pleasing the politically correct brigade by
1. Paying extortionate amounts of taxpayer money on translations
2. Not deporting foreign criminals
3. Putting the human rights of foreign criminals above the law-abiding
4. Allowing whole families who are over the working (and hence NI-contributing) age from the Indian subcontinent to settle here
5. Not deporting failed asylum seekers
All of the above breeds resentment towards me. Tighter immigration controls will benefit us all.
Chee, Coventry,
BRILLIANT!
David, Bromley,
What an exemplary piece of writing, so true and incisive! Your certainly guilty of striking the nail upon it's bonce. Well done and keep up the good work. Oh and Happy Holidays, Merry Christmas and a Joyful Noel.
Justin, Nr. Lincoln, UK
This gets my nomination for Article of the Year.
I doubt if Fiona learned the same lesson, though, and I bet she and her ilk are still voting for her utopia - and that's why we're still getting it.
Rob Wilard, Reading, UK
The situation is further complicated by EU and international law which may be contrary to what UK law would indicate. The Hague Convention on abduction for example cannot consider the wellbeing of the child. My daughter was sent back to the jurisdiction of residence of my violent English ex-partner. I had run with her back to England, in order to be able to care for my widowed mother who had become a diabetic amputee. The Italian court finally gave us permission to leave 3 years later, 2 days after my mother had died.
Judging by today's news that an Iraqui 15 yr old was taken from his GB foster parents forced to return abroad to be left on the streets in Austria, the well-being of the child is ignored by other GB laws. Every child matters?
Mia C, Manchester, GB
The thing that is really frightening is whose brain is it that thinks up these ideas? One that appears not to be human. Scary. Also rather disconcerting is the fact that you are let off if you cause the death of a 78 year old by throwing housebricks at him, but you can go straight to the slammer, and ruin your CV by having a police record, for picking up your mobile in a car. If only we lived in a democracy and could get rid of our government for its incompetence, interference and international ignominy. Will the Dim Lebs please join the Stories and get them out!
john problem, winchester, uk
I am so pleased to read this article. I am not alone! I have seen how this govt has meddled in what were normally acceptable personal freedoms and wondered why I seemed to be the only person aware of what was happening. I consider myself to be a responsible, law abiding citizen but find I am now looking over my shoulder wondering if I have committed any offences when going about my normal business.(I am a dreaded smoker who has failed to respond to govt mind control!) The smoking ban was a major move in the control of the population and this was accepted with glee by many who apparently could not see beyond their naive noses. Now, it seems, more people are seeing the light. The subtle propaganda spouted by the govt now seeks to control many other aspects of life - obesity, responsible drinking, drivers, mob phone users, etc. where it ends, no one knows. -The Govt can 'con' "all of the people some of the time - some of the people all of the time-not all of the people all of the time"
Steve, Durham, UK
Even as I still regard myself as leftwing, I cannot but agree with the article in every way. I have become quite concerned about the politically correct temper to Labour politics, of which I still believe Blair to have been the least guilty.
We need "small government", that is a government that knows its limits. That does not attempt to intefere and rule the lives of each and every person.
A good example of what is wrong can be seen through the legislation coming into force next year for nurserys, with hundreds of tests and learning achievements for toddlers and babies.
This is perverse and wrong, and reading this article makes it worse. This is dangerous and tyrannical. Law should be merely proscriptive - Murder is illegal, theft is illegal. Not you are fat, you should be thin - that is prescriptive.
Richard, Norwich,
This comment piece is bang on. We live under the ideology of political correctness fascism. It's a neo-Marxist abandonment of the Marxist notion of economic control in favour of controlling everything else. It involves abandoming 'the workers' who are seen to have failed in their ideological task, and to replace them by other supposed disadvantaged sub-groups. But these have been completely mis-identified (notably women) in the rush to indirectly attack the ordinary people considered no longer worthy. It's doomed, but it's not unlikely it won't have a bloody end.
steve moxon, sheffield,
I discovered this quote on the internet and felt it was relevant to this discussion - a lesson in history:-
How could Hitler continue to exert such a grip on the German people until the last days of the War? Talking to a prison psychologist while awaiting trial, ex-Governor General of Poland Hans Frank (1900-1946) describes Hitler's charismatic effect on him...
"I can hardly understand it myself. There must be some basic evil in me. In all men. Mass hypnosis? Hitler cultivated this evil in man. When I saw him in that movie in court, I was swept along again for a moment, in spite of myself. Funny, one sits in court feeling guilt and shame. Then Hitler appears on the screen and you want to stretch out your hand to him . . . . It's not with horns on his head or with a forked tail that the devil comes to us, you know. He comes with a captivating smile, spouting idealistic sentiments, winning one's loyalty. We cannot say that Adolf Hitler violated the German people. He seduced us."
Steve, Durham, UK
What a sound article which resonates with just what so many of us are feeling. Today we learn that Harriet Harman and the Nulab Sisterhood want to lock up any man who pays for sex. (Perhaps she should also consider prison for Government Ministers who repeatedly break speed limits with impunity?)Cannabis confusion -is it a class c or class b drug? Prison now for those who use mobiles while driving. Raising the age for alcohol consumption from 18 to 21 now being considered -having just encouraged binge drinking with the open all hours legislation. Raising the age for driving a car. Criminalising smokers . Criminalising hunting. In all 3000 new laws under Newlabour - all of them put together by a buch of incompetents who cannot make their minds up and so use tabloid mewspaper headlines to set their 'moral compass'.Meanwhile 'real' crime aginst people and property sores out of control.
david, Uzes, France
I thought it was just enough to be white, middle class and English to be thought of as a criminal in the UK these days. That's why I live in France.
doug george, antibes, france
And in the other corner, we have a generation of journalists determined to make contempt for the law socially acceptable. Do people spend money that doesn't belong to them, drive while drunk, pilfer, and all the other stuff as a sign of protest against politicians they can't even name, or because they're constantly told it's OK to do so?
Ian Kemmish, Biggleswade, UK
As Thomas Hobbes said, " Liberties depend on the silence of the Law." If indeed the Law is an ass, then this Labour government doth come with monstrous head and sickening cry, and ears like errant wings.
Charles Lewin, Helsinki, Finland
I thought you would like to know that the Money Laundering Regulations have created a crime of Not Being Suspicious. If one is insufficiently suspicious about the source of somebody's money - perhaps because one is a nice, trusting person - this is a criminal offence. It is a thought-crime.
Frank Upton, Solihull,
For once I agree completely. Furthermore, alongside poking its nose into our business, the state has revealed itself very poor at doing the things it undertakes to do.
Less time worrying about what our children are eating or our comedians saying, and more time making sure state's activities are undertaken in a competent and secure manner. That should be the New Year's resolution for this government.
Jamie Gilmour, Bolton, UK
Excellent! Well said sir. Like your Robbie I have migrated, in part due the attitudes mentioned above.
Dave, Coimbra, Portugal
The European Convention on Human Rights requires that any restrictions on the freedom it grants must be "prescribed by law", which is interpreted to mean that the relevant legal measures must be sufficiently clear and precise so that people can reasonably foresee the consequences of their actions.
For example, you can't make "offensive t-shirts" illegal without stating precisely what consitutes an offensive t-shirt.
So the boss at the party and the Baptist preacher would both have a case against the Government under Article 10 (freedom of expression).
It's mystifying that these laws haven't already been challenged on that basis.
Mark, London,
It is, ultimately, paralysing in the way that Soviet Russia was paralysed. What starts with a "nanny state" and proceeds through various bans works in the same way. There is an unstated "model" against which the real world is judged. At first, recommendations and policy statements are made against differences between the real world and the model. They attract support. Even some bans - it *is* very pleasant to be able to drink in a pub without reeking of stale tobacco.
All this "validates" the model. Doomsayers against the model and its outputs are not instantly proven right - this is considered to "validate" the model as well.
Over time, the model takes on an increasingly powerful life of its own. So powerful it can disregard reality with some measure of impunity. It is protected by spin and vested interests, and a "here we go again live with it" response from its victims.
This happens with low quality management. It happens with low quality political leadership.
Everywhere.
P Orphyry, Skipton,
With Orwellian laws popping up all over the world we are all potential criminals. Apparently we can now break laws that don't exist. You can be jailed for an indeterminate time, for indeterminate reasons just because you expressed a thought.
Udo , Melbourne, Australia