Sunday, November 20, 2011

Quick note about law

I was reading a post on RationalWiki about the Freeman on the land movement when I saw this:
Ultimately, the law derives its authority from the fact that the state has the means and the will to use force to impose it. You can argue that the authorities have no jurisdiction over you, and you can choose not to recognise their authority, but as long as the authorities have force to back up their rules they can enforce sanctions against you. Freemen would argue that this would be unlawful imprisonment - but at the end of the day you'd still be in jail.

and realised that it was true.

When I was watching the Tudors, it struck me that power was very personal and based on the ability to cause violence to quasi peers and direct inferiors using their peers if they do not do what you want. By quasi peers, I mean people who structurally are the same kind of person as you -- aristocrats in the case of the king -- but are not the same thing as you by convention. So the king is just a privileged lord, but is not just a lord, and a duke, say, is just a sort of baron, but is not a baron.

So the king would charge dukes to do this or that, and the dukes would charge their underlords, and the underlords would charge their men at arms and so on and so on, so that power percolated down through the levels, until what the king wanted ended in the serf having to provide service or whatever.

In this model, the government is clearly understood as by and for the king. It's tolerated by the elites because the king is a "convenor" of power and a distributor of largesse. His empowerment leads to the empowerment (and enrichment) of his quasi peers.

But power in the democracy is supposed to derive from the people. We are supposed to consent in being governed.

The rather snotty writer of RationalWiki doesn't seem to understand that he is not presenting a counterargument to the Freemen on the land. He is simply explaining why they cannot succeed. I think they mostly already know that. And we can certainly ask whether it's desirable that our laws should be based on the ability of the elites to use violence on us to force us to comply with what they want.

I think that some laws are essential for being able to live in cities. I don't believe any rational person could really dispute them because the downsides of allowing them to be optional are so clear. We are talking here about no parking statutes, for instance. If no parking is optional, some people will "free ride" and park. But those areas are no parking for a reason: usually to allow access. Denying the access the no parking allows may lead to congestion that will disbenefit many of us.

And of course, once some free ride, others will too, and a tragedy of the commons will ensue. Laws that prevent tragedies of the commons are clearly in all our interests, yet we need universal consent for them to work. So even if we allowed that we should consent to all laws that bind us, that would present a problem.

I'm not sure how one could formulate laws that we consent to. In principle, we have consented because we elect representatives who make the laws. But the representatives rarely have a mandate, and are clearly not people like us, and even less so, us. The influence of money and power leads them to make laws that we don't want (it's astonishing how often parliament passes laws that are grossly unpopular, and could never pass a plebiscite -- the "debate" that surrounds them doesn't extend much further than Parliament House, although there is "consultation").

And were we asked to consent to laws, there are surely too many for us to consider, and many are too technical? Well, the answer to the first is that we could surely live with a lot fewer laws, and the answer to the second is that perhaps we should have only those laws that can be described relatively simply, and we should consent to the "headline" gist of the law, while leaving the detail to those who care about it.

I agree not to kill anyone is easy enough. I agree to abide by contracts easy enough. The 100 pages about estoppel are mostly neither here nor there.

I think a good start would be to repeal laws that are impositions on the person, and could not ever be consented to by the person they are imposed on. There is no justification in a democracy for the illegalisation of drugs, for instance, or for seatbelt laws.

Note that I'm not suggesting that we have a referendum on which laws we should keep or rid ourselves of. I have a horror of the masses making law, because the masses are apt to be unjust.

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