Introduction and Recap
Through the four instalments in this series, I’ve looked at some key concepts in the cultural and political landscape, and the way in which we understand them, contending that we may not speak of a progressive evolution, but a devolution. In the first piece, I looked at ‘-isms’, ‘-phobias’, and equality. In the second, the concept of rights – how negative rights have devolved into positive ones and how they are used in politics. In the third and fourth, I examined the philosophy of law, the common law tradition as it is grounded in natural law, and the debate between originalists and living constitutionalists.
In this short piece, I’ll lay out key features of a positive vision of the rule of law and conclude with remarks on the series.
Section III – Simple, general, abstract, and few, grounded in Natural Law
Our legal systems function best when the covering laws are general and abstract, few, simple to understand and apply, and prospective, rather than retrospective in how they prescribe consequences.
Generality and abstraction: the key principles of the law must be general and abstract in a particular kind of way. Their generality must be such that they can cover a sufficient number of like cases, while making room for the many differences that separate them. They must be abstract in that they do not refer to very specific details in their formulation, so as to make them unsuited to a reasonable diversity of circumstances. Law must not refer to the specific factual situation of the person subject to the law in a decision, because then it is not the law that is being applied universally and indiscriminately, but a particularized judgment made on the basis particulars of the innumerable details of the circumstances in question.
For example, if a law says that a person who steals an amount under X dollars from a store is to receive the following penalty, then barring obvious circumstances that would render the ruling inappropriate. No further particulars should be taken into account. This is for the sake of a) procedural fairness – treating everyone the same, and b) to guard against the use of prejudice by the judge in question.
You will note that the progressive version of the law favours more and more consideration of factual and ‘structural’ factors to be used in the determination of the ruling. This, they argue, is because of the many natural and social structural determinants of action that condition a person’s behaviour, and because of the specific facts of a person’s life that may render the ruling different. To a certain extent, some of these things should be relevant for the rendering of a verdict, but when they multiply, and become increasingly vague, and/or refer to the sociologically defined identity categories of a person, then the practice of rendering justice takes on the following characteristics. It looks more like a personal judgment based on subjective considerations; and technically speaking, it is explicit discrimination, insofar as judgments are focused less on the actions of the person in question at present and in the past, and more so on their social meaning and category. Therefore, it looks less and less like the law, which is supposed to be general, indiscriminate, and applied universally with consistency. The cumulative effect of this trend is the inversion of the meaning and practice of lawmaking.
Few: there has been a proliferation of laws, statutes, and regulations enacted by the various branches of government, courts, and administrative apparatuses in the latter half of the 20th century. Examples include the US Environmental Protection Agency (EPA), Administrative Tribunals in Canada, which are ‘quasi-judicial’ bodies[i]. These have created redundancies, barriers to action, prohibitive costs, difficulty in engaging in legal interpretation, and a sprawling body of rules that, in the aggregate, impinge severely on the negative rights of the person and the ability of him or her to engage in civil association and free enterprise. A principle reason for this is the breakdown of the separation of powers, and the creation of law by those who should not have the authority to do so, and in ways that are contrary to the tradition that views the law as a set of negative injunctions, rather than comprehensive, particularized coercive rules that specify positive action. They ought to describe the punishments for infringing upon the negative rights of other persons, rather than use a complicated mix of standards, rules, regulation and laws whose inherent vagueness and internal tension supports a system of administrative and legislative coercion that can only be navigated by engaging armies of staff who do are not engaged in productive capacity, but in compliance – lawyers, sprawling HR and Accounting departments, etc. Small firms and individuals simply cannot survive in this environment.
Simple: the law must be easy to understand, administer, and abide by. Richard Epstein defines simplicity by contrasting it with complexity and its traits: density, technicality, differentiation, and indeterminacy or uncertainty[ii]. Density refers to the number of rules; technicality to the level of expertise required, differentiation to the sources of the law – federal, state/province, administrative apparatus, tribunals, etc.; indeterminacy or uncertainty to the amount of effort required to apply a given rule, often tied to the vagueness of its wording. If the test can be answered by a simple yes/no then it is simple, whereas if it requires lengthy justification, then it is complex.
Prospective rather than retrospective: Prospective laws stand in contrast to retrospective ones. That is to say, it is clear what the consequences of failing to obey the law will be, rather than vague, unspecified, and levied after the fact. That reality has taken a beating on two fronts – the major expansion of the administrative state and the web of conflicting and incongruous codes and regulations they have spawned, as well as the increase in the use of legislative power to enact omnibus bills. Witness the Dodd Frank Act, passed by the Obama Administration after the 2008 recession – an 848-page monstrosity.
The effect of such regulations is to force individuals and organizations to go on the defensive and lawyer up – a net waste of resources. It disincentivizes a whole range of activities by individual people and smaller organizations because the risk and cost of engaging in any kind of action demand the creation of large organizations. The left does not seem to understand that the growth of the corporation is due in large part to the expansion of the government and the rent-seeking it engenders among business interest groups, and the regulatory swamp that has necessitated the growth in the size of business to meet the prohibitive start-up and compliance costs.
The web of complexity inherent in our legal system has increased the cost of living and of doing business. We naturally think that another rule and regulation will help solve some narrow problem in an area of human endeavour, but unless properly conceived, the opposite is usually true.
The use of law and regulation to ‘solve’ problems has actually increased them and reduced the scope of voluntary association. The latter strengthen the human person and community through the practices of uncoerced negotiation and cooperation that they require. Yet the more laws we create, administrative bodies we make up, the more dependent and consumerist we become. Frequently alienated, depressed, and anxious, we have no purpose and no connection to our fellow citizens. We outsource childcare, cooking, commuting, taxes. Some say that relationships are next and upon reflection, this appears not to be much of a stretch; one need only consider remote methods of human contact enabled by the ironically titled ‘social’ media and the social alienation it breeds, from dating sites to anonymous and detached opportunities to use harsh and hurtful language in ways that would not happen in face-to-face human interactions.
Protection of the person, not the group: In its orientation, the law must be directed towards the protection of the individual. Laws ought to be expressed as injunctions, not positive prescriptions – other people, organizations, or the government cannot do such and such to an individual person, subject to reasonable limits.
The Atlas group of think-tanks around the world produce a number of Human Freedom reports each year – the Human Freedom Index, by the Cato and Fraser Institutes, the Economic Freedom of the World report, and Heritage Foundation’s Index of Economic Freedom. The key driver of well-being along all the many metrics that they measure is the presence of economic freedom and its protection under the law. By empowering the person and protecting their rights to pursue well-being on their own terms, other goods follow.
Natural Law: lastly, we naturally understand that some bodies of law are better than others. The standard that we inevitable refer to are objective values – in the legal context – the natural law. The law must be rooted in the timeless principles of the natural law, which are universally accessible to an unclouded human reason, aided by study, and generations of empirical observation that has yielded principles to be followed by any just society.
Turning a Template into Reality
Regrettably, there seems little indication of a move in the direction that I have been outlining. The most common cry to hear from the citizens of democratic countries around the world today is one for more regulation and government, and more personal freedom and choice to do anything, live in any way possible, and have others foot the bill for any ‘inequalities’ that result. It is the cry of the childlike, a-rational postmodern person who believes only in their own feelings. This is a return to the primitive paganism that preceded the dawn of a great civilization.
In the series, ‘Conservative Approaches to Liberal values’, I am working on positive visions for the territory that is most often associated with small-l ‘liberal’ values. The next entries are on environmentalism and multiculturalism.
Conclusion – There is little that’s progressive about Progressivism
I have argued that those practices and beliefs associated that are labeled ‘progressive’ are not an ascent, but a descent from a belief system with concepts developed over centuries of trial and error, rooted in a comprehensive understanding of humanity’s nature and its limits, as well as a normative vision for human flourishing that is as ennobling, empowering and inclusive, as it is unmatched around the world across time and place.
To the counter that the evolution of our language and it’s effect on society is the history of progress and not of nonsense, I can only contend that if you call this progress, then it is quite literally the senseless kind – without meaning; it is the attempt to do away with meaning, distinction, logic and values for the sake of a primordial soup of oneness, conceived of as pure positivity.
The problem is that it isn’t the slightest bit conducive to the good. The two most common types of progressivism – one that is rationalist, and the other that is postmodern – are very different in some ways, although both are ultimately forms of severe reductionism that ignore, and even seek to overturn fundamental truths about human nature.
Human nature is both a descriptive and normative concept. It is known descriptively through common sense, history, and science, and normatively as the potential that persons and people together can grow into when they embrace and live according to certain values and practices. Both of these features are rejected in varying degree by major elements within the progressive understanding of the world.
We should really speak of a devolution of language when it comes to the terms I have looked at in this series – the various ‘-isms’, ‘rights’, and the legal philosophies marked by free-wheeling interpretation, and ‘living’ understandings of the rule of law.
The naive rejection of the lessons of the past is precisely the attractiveness of what is called progressivism – it is a reductionist worldview that seeks to avoid all of the problems associated with difference by eroding the meaning of terms, and supposedly thereby eliminating the negative aspects of difference.
Many of the motivations that progressives have, and the values that they advocate for are inherently good and worth pursuing. However, not in the guises in which they are presented, nor to the sweeping extent they are proposed.
[i] Thomas S. Kuttner, “Administrative Tribunals in Canada,” in The Canadian Encyclopedia, February 6, 2006, https://www.thecanadianencyclopedia.ca/en/article/administrative-tribunals.
[ii] The principles presented here are strongly influenced by the writings of Richard Epstein, though supplemented and refined considerably with realist philosophy and a grounding in Natural Law. The lack of grounding in logic, reason, and a fulsome understanding of human nature is a lacunae, both empirically and theoretically in the libertarian and classical liberal conceptions of political and legal philosophy. Richard A. Epstein, Simple Rules for a Complex World, 3. print (Cambridge, Mass.: Harvard Univ. Press, 1995), 24.
[iii] Epstein, 16.
[iv] Lee J. Strang, Originalism’s Promise: A Natural Law Account of the American Constitution (Cambridge, United Kingdom ; New York, NY, USA: Cambridge University Press, 2019).
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