Wednesday, April 05, 2006

Legitimacy: Law and Anti-State Violence.

If others don't have to obey the law, do you have to?

Law, at base, is a matter of contract. The question is what makes a contract legitimate; by what authority is it valid?

We'll look briefly at four approaches to the theory of law, but our interest here is in terrorism as applied to Western states by Western citizens, i.e. by homegrown Modernist terrorists. The question is at what point, if ever, do the citizens of a Western state have a right and a duty to overthrow the state? At what point, if ever, is it legitmate to violently challenge the state?

We'll look first at some ideas on law in theory, then we'll look at an example of postivist law as practiced in Britain. If there is a law for them and another law for us, a law for the rich and a law for the poor, a law for x and another for y, is the contract valid? And if the contract by which we agree to abide, i.e. to be law abiding citizens, is invalid, what is our legitimate response? What is supra-legal?

The question that has received the most substantial attention from philosophers of law is What is law? Several schools of thought have provided rival answers to this question, the most influential of which are:

  • Natural law theory asserts that there are laws that are immanent in nature, to which enacted laws should correspond as closely as possible. This view is frequently summarized by the maxim: an unjust law is not a true law, in which 'unjust' is defined as contrary to natural law.
  • Legal positivism is the view that the law is defined by the social rules or practices that identify certain norms as laws. Historically, the most important legal positivist theory was developed by Jeremy Bentham, whose views were popularized by his student, John Austin. Austin's version of legal positivism was based on the notion that the law is the command of the sovereign backed by the threat of punishment.
  • Legal realism is the view that the law should be understood as it is practiced in the courts, law offices, and police stations, rather than as it is set forth in statutes or learned treatises.
  • Legal interpretivism is the view that law is not a set of data or of facts, but what lawyers aim to construct or obtain in their morality laden practice.

In the twentieth century, two legal positivists had a profound influence on the philosophy of law. On the continent, Hans Kelsen was the most influential theorist, and his notion of a Grundnorm or ultimate and basic legal norm is still influential. In the Anglophone world, the most influential figure was H.L.A. Hart, who argued that the law should be understood as a system of social rules. Hart's theory, although widely admired, was criticized by a variety of late twentieth century philosophers of law, including Ronald Dworkin, John Finnis, and Joseph Raz.

In recent years, debates over the nature of law have focused on two issues. The first of these is a debate within legal positivism between two schools of thought. The first school is sometimes called exclusive legal positivism, and it is associated with the view that the legal validity of a norm can never depend on its moral correctness. The second school is labeled inclusive legal positivism, and it is associated with the view that moral considerations may determine the legal validity of a norm, but that it is not necessary that this is the case. Any theory that held that there was a necessary connection between law and morality would not be a form of legal positivism.

The second important debate in recent years concerns interpretivism, a view that is strongly associated with Ronald Dworkin. An interpretivist theory of law holds that legal rights and duties are determined by the best interpretation of the political practices of a particular community. Interpretation, according to Dworkin's law as integrity theory, has two dimensions. To count as an interpretation, the reading of a text must meet the criterion of fit. But of those interpretations that fit, Dworkin maintains that the correct interpretation is the one that puts the political practices of the community in their best light, or makes of them the best that they can be.

'Let burglars off with caution', police told

08:08am 3rd April 2006

Burglars will be allowed to escape without punishment under new instructions sent to all police forces. Police have been told they can let them off the threat of a court appearance and instead allow them to go with a caution.

The same leniency will be shown to criminals responsible for more than 60 other different offences, ranging from arson through vandalism to sex with underage girls.

New rules sent to police chiefs by the Home Office set out how seriously various crimes should be regarded, and when offenders who admit to them should be sent home with a caution.

A caution counts as a criminal record but means the offender does not face a court appearance which would be likely to end in a fine, a community punishment or jail.

Is this justice? Should criminals be let off with just a caution? Tell us in readers comments below.

Some serious offences - including burglary of a shop or office, threatening to kill, actual bodily harm, and possession of Class A drugs such as heroin or cocaine - may now be dealt with by caution if police decide that would be the best approach.

And a string of crimes including common assault, threatening behaviour, sex with an underage girl or boy, and taking a car without its owner's consent, should normally be dealt with by a caution, the circular said.

The Home Office instruction applies to offenders who have admitted their guilt but who have no criminal record.

They are also likely to be able to show mitigating factors to lessen the seriousness of their crime.

The instruction to abandon court prosecutions in more cases - even for people who admit to having carried out serious crimes - comes in the wake of repeated attempts by ministers and senior judges to persuade the courts to send fewer criminals to jail.

The crisis of overcrowding in UK prisons has also prompted moves to let many more convicts out earlier.

It emerged last month that some violent or sex offenders, given mandatory life sentences under a "two-strike" rule, have been freed after as little as 15 months.

The latest move provoked condemnation yesterday from Tories and critics of the justice system.

Shadow Home Secretary David Davis said: "Yet again the Government is covertly undermining the penal system and throwing away the trust of ordinary citizens that criminals will be punished and punished properly.

"In the last few weeks we have witnessed a serial failure of Labour to protect the citizen, with murders of innocent people by criminals variously on early release or probation, and now we're finding that ever more serious crimes are not being brought to court at all."

Criminologist Dr David Green, of the Civitas think-tank, said: "They appear to have given up making the court system work and doing anything about delays and the deviousness of defence lawyers.

"This is part of the wider problem that the Home Office has an anti-prison bias. But while they regard prison as uncivilised, they don't seem to care whether the alternatives work or not."

The Home Office circular to police forces has been sent amid a Government drive to reduce the number of cases coming before the courts.

A number of crimes - notably shoplifting - are now regularly dealt with by fixed penalty notices similar to a parking fine.

A whole range of offenders who admit traffic and more minor criminal offences will in future have their cases "processed" by new Government bureaucracies rather than by the courts.

At the same time judges and magistrates have been bombarded with instructions from the senior judiciary to send fewer criminals to jail.

Burglars and muggers should be spared prison more often, courts have been told, and last week sentencing authorities ordered a further "raising of the custody threshold" to keep out of prison more offenders who would in the past have been given up to a year in jail.

The new instructions to police on how to keep criminals out of the courts altogether are given in a 'Gravity Factor Matrix'.

This breaks down offences into four categories, with the most serious rated as four and the least serious as one.

For criminals over 18, who admit offences ranked at the third level of seriousness, the instruction is: "Normally charge but a simple caution may be appropriate if first offence".

Officers dealing with those who admit level two crimes are told: "Normally simple caution for a first offence but a charge may be appropriate if (there are) previous convictions or appropriate to circumstances."

The Home Office said the guidance had been circulated nationally because there had been regional anomalies in the way offenders were dealt with and these needed to be removed.

A spokesman said: 'Cautioning in individual cases is an operational matter for the police and Crown Prosecution Service.

"'The new circular firstly provides up to date guidance on the use of cautions to encourage consistency across the country.

"Secondly, with the introduction of statutory charging, the guidance needed to clarify what the effect would be on police responsibility for cautions. Finally the guidance was introduced to outline the practical process of administering a caution."

Cautioning was used heavily in the late 1980s and early 1990s, particularly for juvenile offenders under 18.

Tory Home Secretary Michael Howard cracked down on cautions in 1994 because young thugs and thieves were getting repeated cautions but no punishment.

But cautioning for adult offenders is now on the rise. Dr Green said: "The Home Office is missing its target to achieve a set number of offenders brought to justice. But it seems they regard a caution as an offender brought to justice.

"This is a nod and a wink to police forces - deal with your cases by cautions and we will hit our target."
Our questions don't ask what is fair or what is just. Our question is what is legitimate?


truepeers said...

Another sign that the UK is falling apart.

While you follow a long tradition of thought in considering law a matter of contract, i would point out that we cannot fully understand the anthropology of law in contractual terms. In a primitive society, law emerges from ritual, or law is ritual. The elders don't sit around legislating, contracting; they sit around judging whether conduct has been according to the dictates of the myth and ritual that evolve slowly and in a process that leaves their authorship uncertain, though it is variously ascribed to the gods.

So just how does the gods' law emerge in such a basic human context? How do the sacrificial events and sacralized, i.e. sanctioned, behaviours first emerge and then become the object of ritualistic repetition?

The answer to this question will demand some lengthy recourse to mimetic theory and now is not the time or the place. Suffice it to say that if your theory of law must explain the emergence of men's ability to contract, it cannot presuppose this ability: it cannot suppose this ability pre-existed the original social contract where not-yet-men used the human ability to contract in order to become men. Doesn't make sense. No, the first "contract" and those that come after must entail an act of faith, one whose meaning and implications are not yet clear at the moment it is embraced out of some pressing necessity.

For now, I will simply suggest that our conceptualization of the modern law, including the notion of contract, emerges as an abstraction from the primitive process in which the legislator appears to be some divine or mysterious source.

Modernity of course makes man the legislator of his own law. But still, it is not simply a matter of contract. What the modern law must aspire to do is reproduce the effect of the primitive law - the revelation of a necessity and a solution to which we pledge our allegiance. We ally ourselves (or not) to law as a matter of faith, and not simply out of contractual reason.

THe successful law must evolve in a process in which worldly experience tests the limits of old laws, where there is some kind of crisis that is resolved when new revelations into the human condition are received and eventually turned into laws.

This process is more political than contractual.
We must decide whether we put our faith in the political process, even if the outcome in a particular instance is not a law which we, personally, would choose to contract.

truepeers said...

Obviously, I am suggesting that the problems in the UK today have more to do with peoples' overriding lack of faith in the system, or in anything else. They are not simply a practical or rational failure to live up to the terms of some contract. It is a problem of nihilism on the part of the criminals and the "governing" classes.

dag said...

I can't even begin to respond to that here. What a pleasure it is to read your comments. I'll be up all night now thinking through the ideas you present.

Having made those points, my point isn't so much the nature of law but of the individual's reaction to state illegitimacy. I'm not even asking but rather suggesting that thereis a time when government, regardless of its seeming legitimacy, has become illegitimate to the point the minority, no longer part of the government and under threat from the government, must take up arms against the majority and overthrow the government to restore the rights of the minority withi the bounds of democracy. The obvious example is of Jabotinsky's group attempting to poison the water supplies in wartime Germany.

You raise many points I wish to consider further. I can't do that in the space of moments. As usual, I'll retire from this debate and puzzle over this new perspective. Your comments are always much appreciated, Truepeers. Thank you.

truepeers said...

Dag, maybe people like us are today a minority in a nation of minorities. I'm not sure there is a majority. The people in control of the major institutions are themselves a minority. And there are minorities on the left and the right with whom I sometimes agree in our opposition to government, and othertimes I disagree with them. Perhaps more than revolution, what we need is a new social or national covenant to form a majority again.

dag said...

I can comment on that immediately: we do indeed need a new covenant.

But again, your comments require some thinking through. More than that: they require some real answers and some real effort to implement once addressed.