[OPE] The rule of law in the neoliberal era

From: Jurriaan Bendien (adsl675281@tiscali.nl)
Date: Sat Aug 30 2008 - 19:20:39 EDT


Tory journalist Paul Johnson complains in Forbes Magazine:

"In Britain for the last 11 years we've had a classic and lamentable case of do-everything government. The statistics covering its meddling are almost unbelievable. During this period it has enacted more than 20,000 new laws, dealing with the most minute activities of individuals and businesses. This legislative frenzy is accelerating. During Gordon Brown's first year in power nearly 3,000 new laws were put in force--something of which he is very proud! He's been heard to refer to the productivity of Parliament, as though the number of laws passed, irrespective of their necessity or wisdom, is the sole criterion. One proposed law will force retailers to charge customers for single-use bags, paper or plastic. As a result of such nonsense, all three of government's real tasks have been neglected.

--External defense has broken down, in that legal and illegal immigrants have been getting into Britain virtually at will.
--Internal order is crumbling, too, as it's not only governments that tend to neglect essentials if they take on too much. The police now have so many laws to enforce that they're beginning to neglect the primary tasks of protecting life and property.
--Keeping an honest currency has also been pushed aside. Most laws cost public money. New Labour's 20,000-odd new laws have made utter nonsense of the government's restrictions on spending. The deficit is terrifying--and at a time when inflation is rising worldwide with the rising costs of fuel and food.

This brings me to the big question that arises from government activities: What should government do when the economy moves into recession? The lesson history seems to teach is that government should do as little as possible." http://www.forbes.com/forbes/2008/0901/027.html

Paradoxically, while the Left decries neoliberal "deregulation", in fact the Brits (and other Western countries) have evidently been regulating more and more. You could say that the more constraints on capital movements have been removed, the more constraints have been imposed on public and private life in civil society. In actual fact, neoliberalism appears to be not so "liberal" after all. 

"In his ten years as Prime Minister, Tony Blair introduced a new law every three-and- a-quarter hours. Since 1997, an average of 2,685 laws have been passed every year - a 22 per cent rise on the previous decade. The figure does not include European Union laws which also affect Britain - in 2006, 2,100 of those were passed, bringing the total to 4,785 or 13 every day, according to legal publishers Sweet & Maxwell. Of the laws, 98 per cent were brought in by statutory instruments, rather than Acts of Parliament. The procedure allows less time for debate by MPs than the tabling of a Bill. The statutes themselves have become longer, with five Acts passed last year taking more than 100 pages to explain, three of them more than 200, another above 300, another above 500 and one more than 700 pages long." http://www.metro.co.uk/news/article.html?in_article_id=51597&in_page_id=34
Well, as regards the evil migrants Johnson complains about, in reality the overwhelming majority of adult migrants in the UK are employed or self-employed taxpayers. The exceptions are a few smallish minorities (such as Somalis and Turks) who suffer a high unemployment rate. At most there are a quarter million illegal migrants in the UK (circa 0.4% of the total population, not very different from other EU countries). IPPR comments in a report: "The analysis presented here confirms that many immigrant groups are making positive economic contributions, either through paying high levels of tax and national insurance contributions, staffing our public services, or working long hours in potentially undesirable jobs. Many of these groups also appear to put little pressure on the welfare state in terms of claiming benefits, which has been a key concern in public debates around migration." http://www.ippr.org/members/download.asp?f=%2Fecomm%2Ffiles%2Fbritains%5Fmigrants%2Epdf

As regards the police, the total notifiable offences in London are now at at their lowest in the last ten years. Violent crime and robberies are also significantly down. Total UK crime rates have been trending down since 1995.  As at 2006, there were circa 141,354 UK police officers and 83,102 support staff. UK police officer numbers are actually at their highest level ever in England and Wales. Given a UK population of 60.5 million, there's approximately one police officer for every 428 people. Compare this to the US: 305 million people, circa 654,000 police officers (BLS), that's approximately one police officer for every 466 people. In the Netherlands (population 16.5 million), there's approximately one police officer for 470 people (own estimate). 

As regards Johnson's "honest currency", it is not clear what public expenditure directly has to do with that, and given that governments do not control the total issue of credit money. In 1992, private capitalist George Soros was able to force a devaluation of the pound sterling singlehandedly. In 2007 the UK recorded a government budget deficit of 39.4 billion, equivalent to 2.8 per cent of GDP, well within EU guidelines. At the end of December 2007 UK general government debt was 618.8 billion, equivalent to 43.8 per cent of GDP. It is large, but not especially large compared to other countries, the terms and revenues; it is Italy, home to Johnson's supreme authority Pope Benedict, which has a very big government debt problem. 

So anyway, the British conservative panic is at odds with the real world. The valid point however is that the West is drowning in legislation, which, because of its massive amounts and scope, is often no longer able to orient or guide behaviour; citizens are simply unable to know all the laws they are subject to, only legal specialists do. What are democratic rights worth, if you have to pay to discover what they are?

In his book "The Morality of Law", American legal scholar Lon Fuller identified eight principles of lawmaking necessary to operate the rule of law:

1.    Laws must exist and those laws should be obeyed by all, including government officials.
2.    Laws must be published.  
3.    Laws must be prospective in nature so that the effect of the law may only take place after the law has been passed. For example, the court cannot convict a person of a crime committed before a criminal statute prohibiting the conduct was passed.  
4.    Laws should be written with reasonable clarity to avoid unfair enforcement.
5.    Law must avoid contradictions.   
6.    Law must not command the impossible.  
7.    Law must stay constant through time to allow the formalization of rules; however, law also must allow for timely revision when the underlying social and political circumstances have changed.  
8.    Official action should be consistent with the declared rule.  http://www.uiowa.edu/ifdebook/faq/Rule_of_Law.shtml

Nowadays each of these eight points become problematic from the standpoint of the ordinary citizen. The result? It becomes difficult to stick to the law, even if you wanted to. 

Jurriaan





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