You shouldn’t think that by “society” I mean everyone wants this to happen. What I’m talking about is the rules by which people get along together – when people’s aims rub up against one another, who backs down, who gives in, who compromises. That doesn’t mean people are happy about it, or want it. But nowadays, when a loud minority makes demands for what is said to be the good, ‘the way things are done’ is to sigh and go along with it.

But there are also a lot of people in Britain today who are quite keen on other people being told what to do, for their own good, for the common good, or because it fits with their idea of what society ought to be like. (It shows up even here, from time to time.) Of course, they all have their own pleasures, and mildly object when others interfere in those, but they argue only about whether the particular restriction is good or bad, not about whether restrictions generally might be bad.

The trend towards totalitarian interference is quite distinctly visible in the beliefs of a lot of ordinary people. The politicians simply reflect society. They are a part of it. They’re the ones in power because power attracts people like that, but there are plenty more where they came from. Society is a self-organising structure, a fractal, an image of the whole appearing in each part, and in each component of those parts, and in each sub-unit of those components. It is not the politicians acting alone, pushing us all unwilling down this path, it is society itself. No government minister will ever knock on my door in person to demand I recycle more, it will be well-meaning neighbours, or brain-washed schoolkids, earnest with good intentions. And I will be expected to comply; or face reproachful looks and neighbourly frowns. Eventually I will be considered an outsider.

It’s one reason why I think the single-minded obsession here with the evils of professional politicians, bureaucrats, and The State is misguided; as if stopping the politicians could stop society, as if they were the source and the cause of the problem.

As I’ve said before, it is not the fact that a dictator gives the orders that makes him one, it is the fact that everybody else obeys him.

They’ve not won yet, and the busybodies are still probably a minority. And I’ve even noticed stirrings of a counter-reaction to it lately, which I’ve encouraged at every opportunity. But I am quite sure of where this tendency has come from, and like the latest example of ungrammatical slang spreading among the young, there’s not a lot any one person can do about it.

The true rules, if there are any, are defined by the speakers

You think? How come then you walk into a pub in winter time, and it is virtually empty, with everyone freezing outside, smoking?

The true rules, if there are any, are defined by the speakers

You think? How come then you walk into a pub in winter time, and it is virtually empty, with everyone freezing outside, smoking?

An interesting line of thought – that law is found and not made.

My view, occasionally expressed, is that ‘law’ is that part of social convention that we impose by force. (The acceptable justifications for which are also culturally defined.) And social convention is constructed in the same sort of way the English language is. Nobody designed it, but it is at the same time clearly a human artefact.

Legislators are then like people who write books on grammar. Some seek to impose, others to be imposed upon. On the one hand, you have those who forbid split infinitives, on the other, those who document the increasing frequency of the “could of” construction, and see nothing wrong in it. The true rules, if there are any, are defined by the speakers, and as a cursory glance at Chaucer will attest, are not even fixed.

Some hate that sort of corruption of the pure tongue for its perceived relativity – but in a sense both are wrong. There is still such a thing as wrong grammar and bad spelling, but spellings do change. It is defined by the ever-moving catallaxy, by the market in words, and you will not get far claiming that because the market price is not constant it is therefore undefined.

Even so, there is still a market for dictionaries.

With extreme Calivinists, and some others, holding that both “good” and “right” (not the same thing of course – as justice is but one virtue, although the only one the law deals with) are simply words for the arbitrary “will” of God.

In short that “God is good” simply means that whatever God does (or orders others to do) is “good” by definition (not by any standard of reason). And that even “right” (justice) is simply a matter of will – and can mean anything God says it does.

I am even told (although I do not know – as I can not read Arabic) that this is the basis of Islamic thought. With “law” simply being a matter of the arbitrary orders of God, not to be subjected to any process of moral reasoning (indeed a denial of the concept of such reasoning).

However, I have no desire to debate with such people.

Whether they be religious – or athiests like so many modern legal positivists.

Legal thinkers have worked on this task for thousands of years – some have used the term “natural law” and some have hated the term. But to regard law as simply the product of the will of the “legislature” or “lawgiver” (a series of “commands”) is to ignore the work done over these thousands of years.

For those who hold, for example, that to rob or murder is somehow “legal” if Parliament does not forbid it – or that Parliament can make criminal things honest by “passing a statute” (understood as a command – not an effort to make a legal judgement, indeed denying there is any independent thing called “law” or any “principle of justice” that it is the function of law to apply in the circumstances of time and place)……..

Well such people, by trying to make law their plaything, in truth make it of no importance.

For if “the law” is simply the will of the rulers – then there is no reason to have respect for it.

One need no longer say to oneself the following:

“Well I do not agree with their legal judgement – but they are learned men working on the foundations of centuries of legal thought, so I must respect their judgement and accept it this case”.

For the “legal positivists” openly declare that they are not doing any such task of legal reasoning at all.

One need not respect their judgements – because they BOAST that they are not making any judgements. They openly state that they are “making” law – i.e. applying their will via an arbitrary command.

For those interested in the law, even Bastiat’s little work “The Law” is worth more than all the texts in a modern legal education reading list.

As a modern “reading list” is based on the assumption that there is no law (in any sense of moral importance) – just a series of arbitrary commands by rulers.

I would certainly be prepared to submit to the judgements of people who are trying to apply the principle of justice (i.e. to each his own – the nonaggression principle) to the circumstances of time and place – the purpose of law. Even if I did not agree with their interpretation.

But if they TELL ME they are doing no such thing (indeed, as I say above, BOAST that they are not – indeed deny any such thing is possible), then submitting to them would be a disgrace.

As I have said – I am a coward, but not that big a coward.

I can not say it surprises me that being serious about being in opposition to the government of the day is now a “crime” – that the unwritten conventions of the British Constitution are now “criminal” is exactly what I would expect.

However, it has got me thinking about the understanding to the law.

Recently I was impressed (and not in a good way) by people writing to me and saying that the most obvious frauds (such as lending out more money than there was in real savings) were not “fraud” at all – because the statutes and the court judgements said they were not.

Our old friend Legal Positivism is at work here.

The idea that law is a “command” that is associated with Thomas Hobbes.

So instead of their being a “High Court of the Queen in Parliament” trying to FIND what the law is – they somehow have the authority to “make law” which is just a matter of their arbitrary will.

They are a “legislature” which is defined as a factory for “making” law.

F.A. Hayek points out (see the Constitution of Liberty and Law, Legislation and Liberty) that this was a live debate in Ancient Greece – although he also points out that those who understood “law” as the commands of the Assembly (or other such) won out in the end. This was indeed one of the principle reasons for the decline of Greek civilization.

It is also worth remembing that Hayek was NOT a “natural law” person (indeed he was a student of Hans Kelson – and the opposition to natural law was one position of Kelson, Hayek never rejected) – so one can reject the concept of “law = command of the ruler or rulers” without being a natural law person.

The debate is an old one (it goes back well before Hobbes) for example under the Roman Republic the juris consults (spelling alert) helped the Praetors (ditto) to try and find what the law was – whole schools of thought grow up about the process of finding the law (the Procrians and Socrians – more spelling alerts).

This (not the “Twelve Tablets” that even the Patricians ignorned) was what was meant by the term “Roman law”.

Of course the Senate and the Assembly did try to “make” (not find) law on occasion – but this did not tend to turn out well.

Then came the Emperors (the military commanders who turned themseleves into rulers) and the doctrine that the Emperors “commands” where somehow law.

This is what came to be “Roman law” – as if law was commands on a battlefield, and there was no difference between people in Civil Society and soldiers in the army in time of battle.

There are some students of law who follow the older interpretation of what “Roman law” means – and there are (of course) those students of law who follow Hans Kelson in thinking that law is whatever “command” the ruler or rulers come up with (“Pure Theory of Law” style).

In the Common Law it is true that lawyers were less philosophical – but they were just as opposed to the doctrine of “law = command of the lawgiver or legislature” as the old lawyers of the Roman Republic.

Till men like Blackstone came along – with their doctrine that Parliament can do anything it likes (with Blackstone’s dishonest wink – do not worry Parliament is dominated by people like us, they will not do anything too nasty).

“Stop all this high flown theory Paul – the debate is over, law is the command”.

Indeed – not the commands even of Parliament anymore thanks to the vague enabling acts that allow the govenrment of the day to pass so much “statutory instuments” and other “delegated legislation”.

Let us say that I thought that the debate was over and that “law” was just the “will” of the lawgiver – a series of “commands”.

Then why should I take a blind bit of notice of “the law”.

Indeed why is it called “the” law at all?

And what is the “the rule of law” supposed to mean? If it is a matter of will-command.

“Fear of punishment”.

Coward I am – but not that big a coward.

I could not care less about the threat of punishment.

Let the swine do their worst – if they can.

First it appeared that my “letter to Dr North” had not appeared (I kept getting “internet explorer can not display the webpage” till I gave up) – but somehow it did appear.

And Pa Annoyed replied and I, out of ignorance, did not reply to him.

I apologise.

I am sure you are quite correct about the statutes and regulations. Almost everything is “illegal” in modern Britain – unless it is compulsory. And sometimes a different (or even the same) law makes something both forbidden AND compulsory.

So to say something is “against the rules” or “illegal” is no doubt quite correct – but hardly a killer argument. “Do I want to set a precident when people break the law as a normal part of their daily lives” – that precident was set up long ago (by the above) and it was not me that set it.

As for the specific case:

Trying to get Civil Servants to leak information embarrising toe the government of the day and then doing one’s best to get this information on the front pages of the newspapers (in the hope of making the government of the day look stupid and/or evil is a large part of the job of a opposition politician.

Most of the major figures in British politics have done this in opposition (from Edmund Burke and so on in the 18th century) and had it done against them when they were in government.

Some politicians even do it against their own party – as Winston Churchill did in the 1930′s.

It is a central part of the unwritten British constitution.

“But it is now illegal Paul”.

So what?

Everything is now “illegal”.

In a battle drawn along those lines I have little doubt who will win. But good luck.

I believe they should have only the minimum privileges needed to do their job.

We agree on this point, but apparently we disagree hugely on what is needed. Allowing the standing police to confiscate parliamentary representation materials and deny the Member access to his/her official means of communicating with constituents seems to me to clearly violate “minimum privileges needed”.

You were the one who first raised ‘separation of powers’. Too maintain them in this (Green) case it seems to me that the actions taken may only be taken by the legislative (ie S at Arms) and the evidence taken be evaluated for privileged status either by the legislative process itself or, barring satisfaction of the executive with that plan, by the judicial (in this case almost certainly straight to the Law Lords) branch of government. If it had been handled that way, I think there would have been no fuss beyond the usual cries of ‘hypocrite’ that are the standard (and appropriate) refrain of all politics.

When it comes to Sharia, I plead extremely guilty, of a lot more than mere conspiracy, and very proud of it. And should they ever come to power here, I will no doubt be in a lot of trouble.

You say:
“In my opinion legislative activities, records and disclosures must be as untouchable by the executive authority as you are from sharia enforcement.”

And you’re entitled to your opinion, of course. However, it isn’t the way the law works in the UK. (And it certainly wouldn’t work that way under Sharia.) You keep on saying it’s outside their jurisdiction, what you mean is you think it ought to be.

Which is fair enough, but you can hardly complain that the police here uphold the law as it is, not as you want it to be.

Personally, I don’t agree with your view, I think it’s sufficient that the executive can’t enforce any laws the legislature haven’t set. And I don’t like any sort of generic immunity from the law for any sort of politicians – knowing they might be on the receiving end is hopefully motivation for being careful about introducing any over-broad repressive laws. Magna Carta first broke the divine right of kings – making rulers subject to law too. I think the value of preserving that safeguard is more than worth the risks.

I believe they should have only the minimum privileges needed to do their job. And I think that whatever needs doing here can be done with far less dangerous measures than generic immunity to prosecution.

But all of that is a value judgement, and one I appear to be in the minority on here. I’ll be satisfied if people can at least get the legal facts of the case straight.

I believe in individual self rule. Moving from majoritarian to authoritarian is a (darn near irreversible) step in the wrong direction.

The analogy breaks down.

Your conduct on blogs almost certainly can be considered conspiracy to incite violations of sharia law. You are not subject to sharia law but if any of your comments influence people who are, you have committed conspiracy to violate laws that don’t apply to you.

Doctrinal Muslims believe you have committed a crime and it is right and proper to charge and punish you for that crime. They claim jurisdiction over you even though (you believe) they have none. Are you agreeing that they in fact do have you on ‘conspiracy’?

This is a question of jurisdiction. The legislative clearly falls outside the bounds of government jurisdiction. In my opinion legislative activities, records and disclosures must be as untouchable by the executive authority as you are from sharia enforcement.

In the US the SCOTUS determined that the judicial branch, as a neutral referee interpreting the Constitution and laws, would inspect the evidence that the executive (FBI in this case) claimed was of non-privileged activities and that Rep Jefferson claimed was of privileged legislative activities, and shield (as best they could after the fact) all evidence of activity done as a legislator from the executive branch.

If the executive believes there is criminal activity happening within the sphere of legislative privilege, then the proper course is for them to relay their suspicions and whatever information they have uncovered in the unprivileged category to the legislative function that deals with those matters. Ultimately, I believe, any searches and inspections and taps on legislators offices and politically motivated activities must be conducted by the Sergeant at Arms or other legislative police function.

If the legislative branch refuses to discipline its own for an act, then that is in fact the people speaking. There may be other claimants to being ‘the voice of the people’, but the reaction of the legislative branch to acts of its own members is in fact the only voice that has clear and unquestionable provenance from the people.

You can have elected officials controlling the appointed ones or appointed officials controlling the elected ones and I assure you, however bad a democratic tyranny is, a self appointed one is worse.