Archive for April, 2011

A Traditional Argument

Aretae and AnomalyUK have been discussing authority. More interesting, to me, is the question of legitimacy. They are not the same thing. In 1655, Cromwell had authority, but not legitimacy, while Charles II had legitimacy, but not authority.

Michael Huemer likens the government to a vigilante who suddenly started imprisoning criminals in his basement and forcing his neighbours to pay his costs in doing so. He rightly points out that few of us would feel morally obliged to pay the vigilante, so then what is our obligation to the government?

Yet, I think we would agree that there might be circumstances in which we were obliged to pay the vigilante. For instance, if I had asked the vigilante to begin his reign of terror, and promised to pay my share of the costs, then perhaps I am morally obliged to pay up.* Now, I never did any such thing, but some people did – Bishop Odo, for example, might be thought morally obligated to follow his half-brother’s laws. However, this idea of a social contract doesn’t get us very far.

More practically, we might think about the idea of prescription. The idea is not that the state is “above” us, in Aretae’s terms, but rather that it is alongside us. If I may establish property and other rights by prescription, why may the Crown not? Certainly the Crown has been locking up criminals by common consent since “Time whereof the Memory of Man runneth not to the contrary.” Does it not follow that the right to do so has become Crown property, or prerogative as the courts would call it? Therefore we should make careful enquiry of any purported right of the Crown, to see whether it is of ancient usage, or a novel usurpation. If my neighbour has been putting his bins there for centuries, I can’t interfere with his right to do so. But if he just started last Tuesday, I might look askance. The same goes for Her Majesty.

Therefore we can easily see the distinction between legitimate authority, sanctioned by law, consent and tradition, and Aretae’s idea of authority, which is mere power. The question of which authorities are legitimate, and how far that legitimacy runs, is a matter to be determined by careful enquiry into the circumstances of any particular case. The question of what should happen when a legitimate authority exceeds its proper rights is more controversial, and so I shall leave it aside for now.

*Although in the real world such a contract would be void as a matter of public policy, because it’s ancillary to criminal activity. But let’s leave that issue be for the moment.

The Costs of Order

As the Arab Spring continues, one thing that has struck me is how easy it is to bring a dictatorship to a crisis. An authoritarian policy of crushing dissent is a weakness, not a strength, because it means that if visible dissent does occur, the regime’s legitimacy is threatened. Whereas by allowing dissent, liberal democracy defangs it, and normalises discontent. The anti-cuts protests in London would have brought down most governments in the Arab world; here in England, they are a blip on the radar.

If you want to have an authoritarian state, like the formalists and reactionaries, then you have to be willing to do more than just crush all obstruction to the smooth working of the state – you have to crush all visible expressions of dissent. This is where the costs are huge. That is why authoritarian states tend to be either brittle (succumbing to coup or revolution in times of trouble) or backwards (the huge costs of suppressing all dissent stifling all growth).

However, although authoritarianism is unstable, we do still need authority. I simply don’t understand Aretae’s position. The rich/trader/forager groups love authority, otherwise they’d all be buying villas in the Congo. How can you be rich unless there’s some authority enforcing your property rights? How can you be a trader unless there’s some authority enforcing contracts? How can you be a Hansonian “forager” unless there’s some authority stopping your neighbours beating you up?

People do not want independence. They want “independence.” The content of that “independence” differs from society to society. Contra Aretae, the truly poor and backwards societies are where people are most anti-authoritarian and most pro-independence. That is why they are most associated with warlordism and unsanctioned violence. Tribesmen in Papua New Guinea fight their own blood-feuds and chafe at the idea of submitting their disputes to a higher authority to settle. Westerners let the courts sort it out, and comply with the verdict even if they think the result is desperately unfair.

The kind of authority matters greatly, no doubt. People do not want to be told to do the kind of things they don’t want to do. But that’s axiomatic. The key thing is that most people don’t mind being told to do the kind of things they wanted to do anyway. Look at where Hansonian “foragers” want to live – not Mogadishu, but Manhattan, one of the most heavily regulated places on earth.

The need for authority is not a wish for preferential rules for my tribe (although it is often co-opted in that direction). It is a need to escape from the Hobbesian nightmare of the anti-authoritarian hunter-gatherer tribe.

Blog Status

I am starting a new job on Monday, and so this blog will be quiet for a while as I settle in there. I shall leave you with this, from A.P. Herbert’s classic Uncommon Law, addressing the eternal question: “Is It A Free Country?”

R v. Haddock

The Court of Criminal Appeal considered to-day an important case concerning the rights and liberties of the subject, if any.

Lord Light, L.C.J.: This is in substance an appeal by an appellant appealing in statu quo against a decision of the West London Half-Sessions, confirming a conviction by the magistrates of South Hammersmith sitting in Petty Court some four or five years ago. The ancillary proceedings have included two hearings in sessu and an appeal rampant on the case, as a result of which the record was ordered to be torn up and the evidence reprinted backwards ad legem. With these transactions, however, the Court need not concern itself, except to observe that, as for our learned brother Mumble, whose judgments we have read with diligence and something approaching to nausea, it were better that a millstone should be hanged round his neck and he be cast into the uttermost depths of the sea.

The present issue is one of comparative simplicity. That is to say, the facts of the case are intelligible to the least-instructed layman, and the only persons utterly at sea are those connected with the law. But factum clarum, jus nebulosum, or, “the clearer the facts the more dubious the law.” What the appellant did in fact is simple and manifest, but what offence, if any, he has committed in law is a question of the gravest difficulty.

What he did in fact was to jump off Hammersmith Bridge in the afternoon of August 18th, 1922, during the Hammersmith Regatta. The motive of the act is less clear. A bystander named Snooker, who, like himself, was was watching the regatta from the bridge, has sworn in evidence that he addressed the appellant in the following terms: “Betcher a pound you won’t jump over, mate,” that the appellant, who had had a beer or (as he frankly admitted) two, replied in these words: “Bet you I will, then,” after which pronouncement he removed his coat, handed it to the man Snooker, climbed on to the rail, and jumped into the water below, which, as was sworn by Professor Rugg of the Royal Geographical Society, forms part of the River Thames. The appellant is a strong swimmer, and, on rising to the surface, he swam in a leisurely fashion towards the Middlesex bank. When still a few yards from the shore, however, he was overtaken by a river police boat, the officers in which has observed his entrance into the water and considered it their duty to rescue the swimmer. They therefore took him, unwilling, it appears, into their boat, and landed him. He was then arrested by an officer of the Metropolitan Police engaged in controlling the crowds who had gathered to watch the regatta, was taken to the police station and subsequently charged before the magistrate, when he was ordered to pay a fine of two pounds.

The charges were various, and it is difficult to say upon which of them the conviction was ultimately based. The appellant was accused of:

  1. Causing an obstruction
  2. Being drunk and disorderly
  3. Attempting to commit suicide
  4. Conducting the business of a street bookmaker
  5. (Under the Navigation Acts) endangering the lives of mariners
  6. (Under the Port of London Authority By-laws) interfering with an authorized regatta.

It may be said at once that in any case no blame whatever attaches to the persons responsible for the framing of these charges, who were placed in a most difficult position by the appellant’s unfortunate act. It is a principle of English law that a person who appears in a police court has done something undesirable, and citizens who take it upon themselves to do unusual actions which attract the attention of the police should be careful to bring these actions into one of the recognised categories of crimes and offences, for it is intolerable that the police should be put to the pains of inventing reasons for finding them undesirable.

The appellant’s answer to the charges severally were these. He said that he had not caused an obstruction by doing an act which gathered a crowd together, for a crowd had already gathered to watch the regatta, both on the bridge and on the banks. He said that although he had had one beer, or even two, he was neither drunk nor disorderly. Snooker and others about him swore that he showed no signs of either condition when on the bridge, and it was powerfully argued that the fact of a man jumping from a high place into water was not prima facie evidence of intoxication. Witnesses were called to show that a man at Bournemouth had constantly jumped from the pier in flames without any such suggestion, and indeed with the connivance of the police and in the presence of the Mayor and Council. In the alternative, the appellant said that, assuming that he was intoxicated before his immersion, which he denied, he must obviously have been, and in fact was, sober when arrested, which is admitted; while the river police in cross-examination were unable to say that he was swimming in a disorderly manner, or with any unseemly splashes or loud cries such as might have supported an accusation of riotous behaviour.

In answer to the charge of attempted suicide the appellant said (a) that only the most unconventional suicide would select for his attempt an occasion on which there were numerous police boats and other craft within view, (b) that it is not the natural action of a suicide to remove his coat before the fatal plunge, and (c) that his first act on rising to the surface was in fact to swim methodically to a place of safety.

As to the betting charge, the appellant said that he had never made a bet in his life; no other person but Snooker heard or saw anything of the transaction; and since Snooker, who on his own showing had lost the wager, confessed in cross-examination that he had not in fact passed any money to the appellant, but, on the contrary, had walked off quietly with the appellant’s coat, the credit of this witness was a little shaken, and this charge may be said to have fallen to the ground. The appellant himself said that he did what he did (to use his own curious phrase) “for fun.”

Finally, as to the Navigation and Port of London Authority Acts, the appellant called overwhelming evidence to prove that, at the time of his immersion, no race was actually in progress and no craft or vessel was within fifty yards from the bridge.

But in addition to these particular answers, all of which in my judgment have substance, the appellant made the general answer that this was a free country and a man can do what he likes if he does nobody any harm. And with that observation the appellant’s case takes on at once an entirely new aspect. If I may use an expression which I have used many times before in this Court, it is like the thirteenth stroke of a crazy clock, which not only is itself discredited but casts a shade of doubt over all previous assertions. For it would be idle to deny that a man capable of that remark would be capable of the grossest forms of licence and disorder. It cannot be too clearly understood that this is not a free country, and it will be an evil day for the legal profession when it is. The citizens of London must realize that there is almost nothing they are allowed to do. Prima facie all actions are illegal, if not by Act of Parliament, by Order in Council; and if not by Order in Council, by Departmental or Police Regulations, or By-laws. They may not eat where they like, drink where they like, walk where they like, drive where they like, sing where they like, or sleep where they like. And least of all may they do unusual actions “for fun.” People must not do things for fun. We are not here for fun. There is no reference to fun in any Act of Parliament. If anything is said in this Court to encourage a belief that Englishmen are entitled to jump off bridges for their own amusement the next thing to go will be the Constitution. For these reasons, therefore, I have to come to the conclusion that this appeal must fail. It is not for me to say what offence the appellant has committed, but I am satisfied that he has committed some offence, for which he has been most properly punished.

Mudd, J., said that in his opinion the appellant has polluted a water-course under the Public Health Act, 1875.

Adder, J., concurred. He thought that the appellant had attempted to pull down a bridge, under the Malicious Damage Act, 1861.

The appeal was dismissed.