Slaw readers who enjoy a little legal philosophy might take a look at the OUP (Oxford University Press) Blog post by John Gardner, “When law is part of the problem“, in which he addresses one of the issues from his new book of essays, Law as a Leap of Faith. In the blog post Gardner, who is a Professor of Jurisprudence at Oxford, sketches his argument that we should adopt the “assymetrical interpretation of the rule of law,” which requires officialdom to observe the laws scrupulously while allowing citizens greater lattitutde in that respect. That is, the rule of law as an ideal is more threatened by official arbitrariness than it is by popular disobedience.
It’s gratifying to me to see Gardner lambaste governments for vastly multiplying our laws to the point where no citizen, no matter how well educated and informed, could possibly be aware of all her obligations—and to the point where enforcement across the board becomes impossible, requiring vast discretionary powers to be devolved onto officials, a primary source of arbitrariness and corruption. This point seems so obvious to me and yet we carry on blithely multiplying laws, much in the manner of Santayana’s fanatic, who, when he’s lost the plot, redoubles his efforts.
Gardner aims to present this and other philosophical issues about law in as clear and non-technical language as possible (as perhaps only English analytical philosophers can). He succeeds in making this blog post and, presumably his book as well, a real pleasure to read.