Gardner: The Law as Ass

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.

Comments

  1. “Assymetrical interpretation of the rule of law” seems like an interesting and potentially useful concept. I will have to read the book (which may make my following comment moot). It is no longer enough for law to make distinctions between “offialdom/government” and private actors, “the rest of us.” Multinational corporations have more resources and influence than many governments. Any assymetrial interpretation of the rule of law must take account of ACTUAL disparities in power/resources (or lack thereof.

  2. Forgive me for quoting Ayn Rand, but this quote from Atlas Shrugged just about nails it.

    “Did you really think we want those laws observed?” said Dr. Ferris. “We want them to be broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against… We’re after power and we mean it… There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that’s the system, Mr. Reardon, that’s the game, and once you understand it, you’ll be much easier to deal with.”

  3. I’ll second that apt quote from Atlas Shrugged. There’s much to be said about the evils of our ever multiplying laws.