Courts and laws
Humans are social beings and we have a sense of justice, just as some furry animals do. This sense of justice seems to be innate – certainly furry animals are not taught it. Young children consider it unfair if they get a small ice cream and someone else gets a bigger one. This complaint has a dose of egocentrism, but also relies on notions of fairness. Fairness means getting one’s just deserts and desserts, and involves reciprocity e.g., one good turn deserves another.
Scruton points out that “law” preexists written law. The original law embodies customs, traditions, and expectations that involve notions of justice/fairness. British common law is an attempt to make implicit law explicit. In this way, the law is discovered, not invented. Even parliament was seen originally as having the function of a court, making commonly agreed upon laws explicit in the interests of resolving disputes.
Common law thus arises organically from the bottom up in patterns of social behavior embodying intuitions of justice. When a judge adjudicates a case he is trying to settle it in terms already being employed by members of the community. Common law represents a piecemeal attempt to solve unanticipated problems as they arise with a degree of trial and error. If a new decision seems to make things worse, then later decisions can modify the law.
We cannot predict the future. And we cannot anticipate every possible situation and grounds for dispute that might arise. Common law means we make things up as we go along, but always with respect to notions of justice already embodied in the customs, traditions and behavior of the group. No top down philosopher king is necessary. The system is self-correcting.
A significant element of the law in Western democracies involves notions of due process which means protecting the individual from the arbitrary intrusion of the government and state. The state cannot simply imprison an individual. Habeas corpus means an individual must be charged or released. And if he is charged, the individual then gets his case heard by a court of law with an appropriate defense. The burden of proof is on the prosecution. If they fail to make their case, the individual must be released.
This system of course functions imperfectly. The rich and powerful tend to fare better than others. But courts are an attempt to foster justice and fairness and to limit oppression. Some leftists have apparently complained that the courts are a tool of the state. If the system becomes corrupt there can be some truth to this. However, the legal system has historically been an individual’s only real defense from the state. There isn’t an alternative.
Communist countries simply oftentimes had show trials in a truly rigged system. If one thinks our legal system is flawed, examine the communist kangaroo courts.
The Free Market
In Conquests and Cultures, Thomas Sowell points out that kings, and thus the state, originally had complete price control. It seems crazy to us now that a king should tell us how much a pint of milk or loaf of bread costs. Controlling prices was one way kings exercised their power. To let buyers and sellers determine the cost was a significant loss of power by the state. Kings in Europe relinquished their control in order to encourage trade in certain cities so they could tax sales and raise money for the defense of their kingdoms and to attack others and increase their realm through conquest. The free market produced a new wealthy class of individuals who were not aristocrats. Their increased economic power led to calls for political power and the vote. The vote eventually got extended to those of us without significant property. Thus economic freedom led to political freedom.
Marxists talk of wage slaves, but actually, Scruton points out, the ability to sell one’s labor is exactly the opposite of slavery. Slavery involves providing one’s labor for free.
Friedrich Hayek pointed out that when the state controls the economy a vital piece of information is lost. That is, how much of anything should be produced and how much should it cost? No individual or governmental body knows the answer to that. The market determines cost and number. Communist countries are famous for shortages, for producing low quality garbage and for an inability to provide the standard of living found in similar countries; think East and West Germany.
The phenomenon seems related to the wisdom of crowds. When individuals are asked to guess the weight of a cow, almost no one gets it right. When the results of all the guesses are tabulated, the average turns out to be almost exactly right. Individuals are wrong. But in instances like this, the group somehow knows something no individual does.
In Antifragile, Nassim Nicholas Taleb points out that 90% of businesses fail. This fact means that opening a business is risky. And this risk is borne by private individuals. In a way, entrepreneurs are crazy. They imagine they will beat the odds. When the state gets involved in economic affairs, then tax payers assume the risk and 90% of the time the bet will fail to pan out. Free markets are a fantastic way to shift the burden of risk and probable failure to individuals rather than to tax payers and the state. The competition involved means we get higher quality and lower priced goods. Sexism and racism are minimized because irrational decision-making, hiring, firing, promoting based on irrelevant considerations, will hurt one economically and make one less competitive.
When Obama got the US government to invest in a solar panel company there was outrage when the company went bust after hundreds of millions of dollars were lost. There is no way to predict which companies will succeed. But we know in advance that 90% will fail. Hence, the mistake was not in choosing the wrong company, but for the state to assume the business risk to be paid for by tax payers.
It is a problem when companies get too big. They can effectively buy the government through their campaign contributions. When they get too big to fail, Taleb suggests that they be either nationalized or broken into smaller companies. Otherwise, these companies are just encouraged to take bigger and bigger risks since the taxpayer is underwriting their investments. They can only win and are not risking their own money at all.
Companies are not immortal. Of the Fortune 500 companies around in the 1950s (the top 500 hundred companies by size), only about 70 still exist.
There has been a lot of criticism that companies are legally people. Apparently they gained this status by using laws designed to deal with the aftermath of slavery in the US. Roger Scruton points out that the upside of this is that companies can be sued and held accountable for their actions. In communism, the problem is that the state cannot be sued and the state is impersonal. The state becomes a huge machine with almost no one can really being held accountable for actions by the state. All people can do is hope that the machinery eventually stops functioning.
The Final Solution
Scruton points out that leftists tend to look for the final solution. The solution to end all problems once and for all.
Scruton argues that social living is a messy business. People have conflicting opinions and interests and we have to learn to live with people with whom we disagree. Compromises must be reached, which often leaves both sides of any dispute dissatisfied.
Communism and Fascism just abolish the opposition. Communists’ lack of interest in messy compromise seems evident in the fact that they almost always come to power in a coup d’etat and the first thing they do is to kill those opposed to them.
The modern liberal university also abolishes alternative views and treats controversial moral and political matters as settled. Instead of encouraging debate, dissidents are accused of hate speech, of being some kind of ‘phobe,’ etc. Conservatives, traditionalists and reactionaries are effectively banned from the campus and are certainly silenced.
Political correctness stymies development because it treats moral issues as settled in stone once and for all. Since learning often involves changing one’s mind, positions we currently think are wrong must be countenanced and not simply outlawed. No one has all the answers. Mistaken notions must be corrected in light of experience. Utopianism makes mistakes invisible because actual results are ignored and so no revision of principles takes place. Stupidity is left uncorrectable.
We don’t want philosopher kings and top down solutions. Economic and legal practices that arise organically between individuals don’t require any one person to know the answers but resolve conflicts based on actual experiences of members of a community. Scruton argues that intellectuals should not have political aspirations. Leftist intellectuals have frequently imagined they have some special connection with the working class, but regard it as laughable to actually ask the opinion of actual members of the working class. When the working class sometimes votes for the fascists it must be the result of false class consciousness or the like.
Scruton mentions approvingly the past English habit of puncturing the intellectual’s pretensions and putting him in his place. The Rev. Edward Casaubon in Middlemarch is a “pedantic, selfish, elderly clergyman who is obsessed with his scholarly research. Because of this his marriage to Dorothea is loveless. His unfinished book The Key to All Mythologies is intended as a monument to the tradition of Christian syncretism. However, his research is out of date because he does not read German. He is aware of this but will not admit this to anyone.”
I have to admit to rather enjoying this caricature, as I could imagine being the butt of the joke and I take it as a relatively affectionate jibe.
Social order involves hierarchies and even domination. But domination we can assent to. People boss each other around. Parents boss children, teachers boss pupils, employers boss employees, local government and the police boss citizens, the courts boss the police and local government.
René Girard points out that these hierarchies are in place to provide conflict resolution and to avoid private vendettas. Hierarchy = structure and order. Equality means a dissolution of order and the growth of competition. Where people are equals they become rivals. A family with the parents in charge will be more peaceful than one where the children are in competition with their parents about how things will be run.
Scruton points out that leftists talk about equality but never define what they have in mind. They complain about something called “capitalism” but don’t provide an alternative. They contrast the existing state of affairs with nowhere; with utopia.
Any existing social order will be imperfect. It involves messy compromise where often no one is completely satisfied. It is fine to criticize specific outcomes: a court’s decision that seemed unfair; a company that is behaving badly. But a tout court condemnation of an entire system means that one should have in mind a specific and not utopian alternative.
Jean Paul-Sartre said that communists must not be judged by their actions but by their intentions. Communists sometimes say that communism has never been tried, pointing out that Russia, for instance, never got beyond the dictatorship of the proletariat. In other words, Russia never became utopia. I wonder why? Many leftist intellectuals, including Sartre, continued to be apologists for Stalin long after he was dead because they were convinced of the beauty of the goal. But Russia, China, Pol Pot, etc., are all living examples of what happened when countries tried to put communist ideals into practice; disaster.
Scruton and Girard argue that the advantage that religion has is that heaven is regarded as something transcendent. Perfection is not within human reach. Think of any job involving dealing with ‘the public.’ School teaching, check-out assistants, waitresses – all experience first-hand the foibles and irrationality of many of the people they deal with. No earthly reality could be heaven with people such as ourselves. Most religions do not imagine that heaven can be created on earth. But philosophers like Feuerbach suggested that God is no more than a projection of good human qualities onto an imaginary being and that we needed to repossess these qualities for ourselves. However, humans may give up a belief in a transcendental realm, but they all continue to have religious longings whether they know it or not. Many atheists then make it their goal to make heaven on earth, the only kind of heaven they think that can exist. The more beautiful the imagined earthly heaven is, the more willing some leftists are to commit horrible crimes and murders in order to make it a reality.
The notion that someone is good for being a utopian is wrong. Utopians are scary individuals. Utopia is perfect and the possible outcome for any one of us messy, imperfect people is being first up against the wall in the name of an earthly heaven. Utopians’ intentions are impeccable. Their actions can be those of a deranged psychopath. Contra Sartre, DO judge philosophies by their results.
Whenever existing social reality is contrasted with utopia, reality will lose. When conservatives point out that a leftist policy is not working or is being counter-productive, say, affirmative action, this is considered irrelevant. Facts and empirical evidence are not to the point. Commitment to the leftist cause is all that matters. Results are for sissies. With one eye on utopia and the other aiming a flame-thrower at all piecemeal, messy, imperfect actual social, economic and political arrangements, the utopian destroys their intellectual, social, traditional and political inheritance offering no replacement except more homilies to the beauty of their utopian dream.
* These remarks stem from ‘The Intelligent Person’s Guide to Modern Culture,’ ‘Fools, Frauds and Firebrands,’ and ‘The Uses of Pessimism,’by Roger Scruton and from a series of exchanges with a leftist who appears to think that leftist intellectual hegemony does not exist because of conservative think tanks and a few dissident professors, and that fascism is making a serious comeback in Europe.