The Ragged-Trousered Philosopher


History of Digital Telepathy

with God


The Eagle Has Landed

All's Well That Ends Well


Chapter Twelve

What About the 'Rule of Law'?

"All laws which can be violated without doing any one any injury are laughed at." Spinoza, (c. 1660)


Cannabis isn't just a pet peeve. At the time of writing, only a handful of countries around the world do not criminalise it. So naturally it raises that favourite issue - "The Rule of Law".  In no country where it has been labelled as criminal has that criminality ever been put even to the limited democratic tests currently available. And even if it were, and even if it passed such tests, I for one would still be advocating any and all non-violent methods of destroying such a law. As I would for laws forbidding atheism, eating meat, reading books, masturbation, climbing mountains, consensual sex, being out on the streets after dark,  homosexuality, singing in the bath or even - despite my distaste for it - religion. All these issues - and thousands of others you can no doubt think of yourself - belong to a class of behaviour in which the democratic constituency consists only of those directly involved in the activity at the time. This, folks, is where Government has lost the plot. They are all, after all, so fond of telling us that they are our servants - not our masters.

Neither Government nor Society itself has any mandate to regulate or even observe our private behaviour. If that isn't an SBO, then I can't imagine what is!

Such examples form a line, as it were, beyond which no rational case can be made for society to step - either in the shape of "the Law" or any other form of social pressure to conform. How this principle, when eventually widely understood and accepted, will be spelt out in a constitution I cannot foresee, although the Constitution of the USA ought to provide some guidance both in terms of how to spell out the principles and an object lesson in how merely getting some of the principles right doesn't offer serious protection. The citizenry of that country have one of the most liberal constitutions on the planet but the successive ruling elites have long since destroyed many of the protections built in to it.

The clear line of distinction must be made on the basis, as we discussed in Chapter 8, of a) who is directly involved and b) how that involvment is determined for any particular case. I would argue that the starting point must always be that until or unless any given behaviour can be shown to directly effect a third party (or even a second come to that!), then the assumption must be that there is no such third party interest and thus that the behaviour is not appropriate for regulation by the social decision making process.

It is also clear to me that there will be different degrees of third party involvement which would justify different levels of social control of the behaviour. For example, tobacco smoking is not only harmful to the smoker but, to a lesser degree, individuals in the vicinity of the smoker. This gives non smokers a reasonable basis for controlling the smoker's behaviour in their presence. It does not give them any grounds for control over his behaviour at other times. However, it is also the case that the damage smokers cause themselves is extremely costly to society, particularly in medical terms. On this basis, society can reasonably demand that the smoker should pay the full costs of his habit into the social fund.

Neither of these positions is controversial, nor significantly different to what already happens. Smokers are increasingly restricted to smoking alone or in the presence of other smokers and they already pay considerably more than the cost of their health care through the very high taxes placed on tobacco sales. (more so here in Europe with almost universal socialised medicine than the US, but as individuals there often have to pay their own health costs in any case, further heavy taxation for that purpose might be a trifle unjust!) In fact, smokers in the UK pay more than 1600% of the cost of their subsequent care bills! Indeed, the treasury must have nightmares about what would happen if Britons gave up smoking in droves. Income and other taxes would have to rise by around 2%. The smoker is actually subsidising the rest of us. And killing himself into the bargain. So next time you see one or more of these tragic nicotine addicts, go up to him or her, shake them warmly by the hand and thank them for their social contribution and selfless altruism.

Essentially the current social policy on smoking is - with a proviso about only charging the actual cost and not grossly profiteering - a pretty good model for any other behaviour which, though essentially individual, has a social impact. Society can reasonably insist that our individual behaviour shouldn't cost them anything and shouldn't, under, any circumstances make other - non consenting - individuals directly suffer in any way.

In case you hadn't guessed, this word directly really is crucial.

Lets return, for a moment, to the female circumcision case. I am not, apparently, directly involved - yet I argue that we could validly interfere, at least to the extent of taking part in a debate on whether or not it should be permitted. Is this a double standard I am trying to exercise here? No. The vital difference is that with female circumcision, we are talking about whether or not we should let an adult mutilate a child. The child, like any other child in a relationship with adults, will have no way of affecting the decision, and isn't even aware of the implications of what is happening to her. We are, in this case, acting on behalf of a potential victim who is not in a position to defend herself. In fact this is entirely consistent with what I said a few paragraphs ago. -  until or unless any given behaviour can be shown to directly effect a third party, then the assumption must be that there is no such third party interest and thus that the behaviour is not appropriate for regulation by the social decision making process.

The behaviour in this case, is the circumcision carried out by adults. The victim is the girl being mutilated. Clearly, in this case there is very much a "third party" affected by the behaviour and this is what justifies Social intervention.

No such case can be made for the lone smoker, the drinker, the masturbator, the atheist, etc etc. Their behaviour can be conducted in such a way that either no other individual is directly involved or, those that are involved are involved with informed consent. The mere fact that some religious fundamentalist is offended by my atheism gives him no more right to interfere with my behaviour than my opposition to his religion gives me the right to stop him practising it - much as he or I might dearly like to be able to justify such intervention.

In other words, simply disapproving of someone's behaviour isn't sufficient grounds for Social intervention. You must be able to show a direct and unwanted negative consequence of that behaviour on an unwilling third party. And that consequence must be something "material". It must, for example, physically prevent the third party from doing something they want to do, or, physically force them to do something they do not want to do. Or it must force them to be an unwilling "first hand" witness to such offending behaviour.

I would be committing an offence, in this context, for instance, if I was to storm into a church and start ranting and raving about the nonsense inherent in religion. This would be "forcing" the unwilling third parties to be exposed to my behaviour. They would be fully entitled - as far as I'm concerned - to take whatever measures were necessary to evict me from the church. Similarly, if they invade my territory and insist on trying to preach the word of god after I've made it plain that I do not want to hear it, then I too have the right to take whatever measures are appropriate to evict them.

I would have the same right to evict anyone else who tried, in my own home, to prevent me masturbating, smoking cannabis, drinking or whatever.

That should, I hope, give a clearer idea of how and where we draw the line based on direct involvement. How we will spell out the consequences of that in formal constitutional terms I leave to the legal wordsmiths. Lets just make damn sure that they get the principles right.

Something along these lines would seem appropriate:

1. The sole legitimate function or purpose of the Law is to regulate interactions between people in order to settle disputes,  to prevent such disputes arising or to prevent individuals being deprived of their own freedom of action by the actions of others. (Thus no Law is valid if  and when it seeks to regulate private behaviour)

2. No Law is valid unless it has been democratically approved.

3. At any time, following an appropriate procedure (eg a petition with sufficient signatures), the people can amend or discard any Law

Useful Definitions:
Private behaviour, in this context, is defined as behaviour affecting only the individual acting out the behaviour or, if more than one individual is concerned, ALL those affected must be capable of showing their informed consent. It should, where practical, also be carried out in a private location, or at least a location where it is reasonable in the circumstances to assume that no objecting third parties will be present.

Informed consent: Informed means being able to demonstrate - if necessary - that the individual is broadly aware of the facts.

The Facts are any relevant scientific consensus regarding the possible consequences of their actions. They are to be defined by expert witnesses - not by politicians or lawyers. The facts also include details of any material cost incurred.

Consent means, in this context, that, armed with that awareness, and without any evidence of coercion, the individual is freely able to confirm their desire to proceed with the relevant behaviour.

If private behaviour has any unwanted material effects beyond the group of consenting individuals, then those outside the group who are subjected to such effects have a legitimate complaint and can seek to regulate such behaviour including invoking any relevant Law or by seeking to persuade their fellow citizens of the need create a new Law. We can also anticipate that in cases (like female circumcision) where the unwilling victim is unable to defend or even speak for themselves, that society will seek to intervene on their behalf and introduce laws which prevent such abuse even without requests from the victims for such protection.

Unwanted Material effect can be defined as a consequence of the behaviour which interferes with the ability of the third party to exercise their own freedom of action. It specifically excludes mere disapproval of the behaviour arising from knowledge that the behaviour is going on. However, being unable to avoid witnessing the offending behaviour MAY be considered as an unwanted material effect. (if, for example, the obligation to seek a private location has not been met)

Democratic Approval means a majority of the relevant electorate are in favour of the policy or Law.

and the Relevant Electorate are those affected by the decision. (as discussed in detail here and in earlier chapters)

So now, you might insist, what about "the Rule of Law?"

And once again I respond to the question with another question: "Which Law"?

If you mean Laws created as outlined above my answer is that, as a participating member of a democracy, it is probably advisable to take heed of such Laws in deciding your own actions. The chances are that you will agree with most of them anyway so they don't raise any significant issues. The few you disagree with may or may not be a severe constraint on your freedom of action. Ultimately, though, only you can judge the importance of a particular Law and the way it affects you. If you feel the effect is so serious that breaking the law is necessary then all I can advise is to proceed with extreme caution and try very hard not to get caught. I can and will not say that you are "wrong" in any way to break the Law as this is a moral judgement, and morally, the Law itself may be "wrong". Just because it represents - in this scenario - the "will of the people" doesn't mean it has to be "right". Indeed, if the system I advocate were introduced today, we can be pretty sure that many of the Laws created, at least initially,  would be no more liberal, perhaps even less so, than many currently in place. So the case for trying to stay within such laws (or any, come to that) is not in any way a "moral" case - merely a pragmatic one. If you don't stay within the law you can expect society to react with its enforcement procedures and those may be worse for you than simply accepting the restrictions required by the Law.

When it comes to obeying the Laws currently in place my advice is slightly different. Yes, for pragmatic reasons, it may still be advisable to accept the restraints of existing Laws for the simple reason that you are outgunned and, so far, outnumbered. Again, though,  if you do find it necessary to step outside existing Laws then do your best not to get caught. However, with existing Laws, many of which would fail to meet any of the criteria above, if you do get caught and prosecuted, you have a third option. You can try to challenge the Law, regardless of the facts of the case (i.e. even if you are obviously "guilty" as defined by their Law), by persuading the Jury to use its powers of Jury Nullification.

Remarkably few potential jurors know of or understand the full extent of the powers still invested in the Jury system. Moreover, the judges and lawmakers haven't exactly gone out of their way to educate us. Intriguingly, the Labour Government has recently announced its desire to ensure that all secondary school pupils are taught "civics" - their rights and duties as citizens. It will be interesting to see if the resulting curriculum even touches on this most fundamental of citizen rights.

In short, Jury Nullification can cancel ANY law for no other reason than one or more jurors holds the Law to be unreasonable! (unless the judge has indicated he'll accept a majority verdict, in which case you may need 3,  4 or sometimes an actual majority of jurors) I'm not joking! A Jury really does have this power. Hear these extracts from an essay by Robert Anton Wilson in 1984: (emphasis mine)

In a once popular formulation, the doctrine of Jury Nullification holds that "a jury may judge the law as well as the facts in the case."  Since Magna Carta this has been repeatedly upheld by courts in both England and America, only occasionally denied by lower, and currently remains the law of both countries, although judges have no legal obligations to inform juries that they possess this right.

As Lord Denman wrote (in O'Connel vs. Rex, 1884): "Every jury in the land is tampered with and falsely instructed by the judge when it is told that it must accept as the law that which has been given to them, or that they must bring in a certain verdict, or that they can decide only the facts of the case."

In the landmark William Penn case in England in the 1670's, the State proved beyond doubt that Penn "was guilty"; i.e. he did consciously and deliberately violate the law by preaching in a public street a religion not that of the Anglican Church. The jury refused to convict, finding religious persecutions repugnant. The judge, in a fury, confined them to the Tower of London until they would agree to convict. After those twelve ordinary unheroic Englishmen had served enough time in the Tower, public opinion forced the judge to reverse himself and admit the jury had the right to decide the law as well as the facts. And that, children, is how religious liberty came to birth in the modern world after 200 years of  bloody religious wars: 12 simple men who felt sick and tired of religious bigotry and refused to enforce an intolerant law.

If you are still in any doubt, check out this link to the Fully Informed Jury Association, (from where you can link to dozens of other relevant sites) or even ask a lawyer!

Did you know that you had this power when sitting on a jury? I certainly didn't. In the early 1980s I served as chairman of a jury and no one explained our rights and none of us knew them. We were half way through a case featuring a fairly trivial theft (of a bicycle) and up to that point we were all inclined to dismiss on the grounds that the police had simply not presented unequivocal evidence that the defendant had committed the crime. Without any kind of explanation, we were suddenly informed by the judge that the defendant had changed his plea and we were "instructed" to find him guilty. To this day I do not know if - as chairman - I had any choice in the matter. I'm ashamed to admit I "just followed orders". It would appear that I may have had the right to say "hang on yer honour, we don't actually think he's guilty" (although I suspect that the change of plea would be a bit of an obstacle!)

If you'll pardon my self indulgence in returning to the Cannabis case for a moment, can you imagine what will happen when Cannabis users - as a classic example of invalid Law - start using this approach in the courts?

What I have in mind is that we create a "Cannabis Declaration"  or "Manifesto of the Marijuana Movement" or something like that with an appropriately snappy title.

This spells out not only the case for repealing prohibition but also the tactics we need to employ to achieve this end. Amongst other tactics we will include a passage on Jury Nullification spelling out in at least as much detail as I have here, just how far that power extends and how ANY juror is free to exercise a completely unrestrained option to reject bad law by casting a not guilty verdict.

We then advise all future cannabis hostages that on arrest, and having been "mirandad" the only statement they make to the police, is that "to understand my actions you must read the Manifesto of the Marijuana Movement".

Now - I am not a legal expert. That may not be the optimum form of words. I'm sure the legal eagles will improve on it - and perhaps the exact "post arrest game plan".

The object is to leave the court with no option but to allow the jury to read the Manifesto as it is the only item of evidence the defendant will offer to the court.

If we can achieve that - then eventually we are going to hit paydirt. Possibly even the first such trial. When that shit hits the fan, the opposition will go absolutely Ape!

You will see attempts to ban trial by jury for drug defendants. You will see attempts to get a constitutional amendment to end jury nullification. In the process, most of the adult population will get to hear about it and many will even read it. Where it goes from there - who knows? But I've got a good feeling that if we could get that ball rolling, we might well get a lucky strike...

I have drafted a document which attempts to do the job. Here it is...

A number of precedents for such action have occurred in recent years, most frequently in cases of Euthanasia, where Juries, on hearing the details of the cases have decided that although the Doctors involved have been technically in breach of the Law, their motives and rationale have been far more humane than the Law. They have been acquitted so regularly that the Police (in the UK at least) are now officially reluctant to prosecute such cases. Most recently you may remember the case of David Moor.

Perhaps the most famous UK example in the second half of the twentieth century at least was the case of  Clive Ponting  - the whistle blowing Senior Civi Servant who breached the Official Secrets Act by revealing details showing that Conservative ministers had misled the Commons about the sinking of the Belgrano during the Falklands war (yes it was sailing away from the Islands at the time it was attacked).  Despite his confession in open court, the jury acquitted him unanimously - presumably having decided the Law was grossly unreasonable. We have to say "presumably" because the deliberations of the jury room are sacrosanct. No-one, not even the judges, (ESPECIALLY not the judges!) is allowed to question what went on in the Jury room.

The business of "The Law" is very straighforwardly defined as those socially (i.e. democratically) agreed rules which have the sole purpose of regulating the interactions between people. Period. Where behaviour does not involve interaction (other than with informed consenting individuals) the Law simply has no place.

And this is not some new axiom I'm trying to lay down. It simply a consequence of  all the steps we have taken up to now. If anyone disputes that, point out my errors and I'll redraft accordingly.

Having arrived at this position, problems with existing Laws become glaringly obvious. Most alarmingly, present social Laws cross the personal barrier as if it wasn't there. The last chapter dwelt heavily on a classic example of that. Society has no case, whatsoever, for regulating my desire to smoke cannabis. It is reasonable for Society, if it is concerned at possible third party harm, to insist that I don't smoke it in the presence of non consenting individuals. If they can show that my use of cannabis is likely, later on, to invoke social costs through additional health care burdens, then it is reasonable for Society to ask me to provide for such costs. If they can show that my use of cannabis impairs my ability to operate heavy machinery in the workplace, or makes my driving more dangerous, then they can reasonably insist that I don't drive or operate such machinery while under the influence of the drug. But under no circumstances can they justify telling me that I can't smoke it in my own home under conditions which cannot possibly harm any other party. EVEN IF THEY COULD SHOW THAT IT HARMED ME.

One last trip back to female circumcision to ram this point home. We all accept that it is reasonable to prevent adults mutilating children. However - if an adult woman, for whatever bizarre reason, freely sought such mutilation, then there is no basis on which we could refuse her that choice. She may find it difficult finding someone to perform the task and she may even have to be prepared to mutilate herself. None of our business. It would be difficult to justify intervention even if we were inclined to judge her insane. Unless that insanity clearly manifested itself in a number of other areas and a number of relevant independent reputable expert witnesses could persuade us that her overall behaviour was clinically insane then no such intervention could be condoned. Anything less than that and you leave a huge loophole for the "controlling tendencies" to grab back the territory of personal privacy. Like the old style Soviet regime, they would simply define any individual behaviour of which they did not approve as insane and thus justify, once more, their social intervention. This is clearly the area where the wordsmiths will have to take most care. All I can do here is highlight the danger areas. It is for others to erect the safety barriers.

More topically two recent cases in the UK are screaming out for Jury Nullification as I write. Tony Martin is an obvious candidate. A lone farmer, defending his property against 3 burglars of unknown disposition and weaponry, shot dead one of the criminals. He's being charged with murder. The Jury can tell the world, and all the burglars in it, that we don't think its a crime to kill people invading our territory with such clear hostile intent. Once the state has manifestly failed to protect us, we must retain the right to simple self defence.  And there are circumstances when we can only effectively and sensibly defend ourselves by killing the attacker. There will indeed be times when our actions are greater than, with hindsight, may be judged "necessary". But that is acceptable because in this situation the balance of consideration must rest with the person under attack and not the attacker. In fact, it is in the interests of society at large for the potential attackers to be fully aware that his victims have no legal limits to the actions they can take in resisting their menace, whereas nothing excuses any element of the attacker's behaviour.

Some argue that if we "up the ante" in this fashion, then "mere" petty burglars would become more inclined to carry guns to protect themselves and would also be more inclined to use them. I'd accept that those who still felt inclined to burgle property might indeed react that way. But I also suspect that there would be a drastic reduction in the numbers of those prepared to burgle! Now whether the one would outweigh the other is a very difficult social decision. Would we think one extra murder of a defenceless householder was a fair exchange for  10,000 less burglaries? I think we might. But what if it was only 10 less? hmmm...

It is a classic example of an issue that can only sensibly be decided by genuine democratic consultation. But until we get to that utopian ideal, all we've got is the jury - the one element of democracy enshrined in the legal system. Ferchrissakes don't ever let us lose it. And more important, don't forget to use it!

The other high profile case ripe for the Jury Nullification treatment is the forthcoming trial of Lord Melchett, Director of Greenpeace, currently bailed on a charge of destroying the crops in a Genetic Modification field experiment. If ever there was an action clearly reflecting the democratic consensus it is the destruction carried out by the GM activists. As it happens, I disapprove of their actions in the purely academic sense that I think their fears are exaggerated and misplaced. That, however, is utterly irrelevant. The plain truth is demonstrated by the panic of the supermarkets to be able to guarantee that their produce is unsullied by GM ingredients. Asda, Tesco et al are not democrats by any stretch! But they do know that they'll go out of business if they don't give the customer what s/he wants. And their rush to be GM free is huge economic evidence of the views of the UK consumer (and, increasingly, the European and US consumers).

So what Greenpeace, Friends of the Earth etc are doing is correcting the democratic deficit in that the Government, without consulting the people, gave permission for these trials to go ahead. For that reason alone, Greenpeace's activities are likely to be more democratic than the Government (i.e. they have greater popular support), and the Jury can thus use their authority to make that point clear, not just to this Government (which, in any case, is merely continuing the undemocratic precedent set by its predecessors), but to ALL governments.

By the bye... Just checking on Melchett's name on the Web (now whoda thought we'd ever be accusing a hereditary lord of being more democratic than a landslide elected Labour Government?!!) and found this site dedicated to the cause for anyone interested in joining in or supporting the action.  Then there was this self appointed 'media watch' site with a somewhat more sceptical approach to their activities. Judge them for yourselves. I do feel bound to respond to one argument on the media watch site which was put as follows:

A particularly articulate leader in the Financial Times is indicative of a media shift towards a more sceptical appraisal of activists' methods and motives: "[their] violation of property rights is not a blow for freedom, but an arrogant attack on a tenet of civilised society by a minority group that represents only its own members." These pressure groups continue to recycle the assertion, eloquently exemplified by Andrew Wood of Genetix Snowball, that "the public has made it quite clear that they do not want GM crops and there is no need for these tests", but the refusal to allow such testing is finally meeting with accusations of being undemocratic. Roger Turner, head of the British Plant Breeders Association, said on Radio 4's Today programme that their campaigns for direct action suggested that "the environmentalists had lost the argument".

What does nonsense like this really tell us? The stentorian bellow of "minority group that represents only its own members" is "progressive" in at least this sense: The FT - and thus, we can presume, the elite their readership represents - fully understands that we can only, in the modern world, justify our actions if they meet with democratic approval. This is why they consider it so impartant to try to paint the actions of the protestors as unrepresentative. This approach contains within it the implicit acknowledgement that if we can conclusively demonstrate that the majority of our society is on the Greenpeace side of the argument, then there is no further need for debate. The plants must be ripped up. Now if the representatives of the ruling elite are so confident that Greenpeace only represents a minority, they could quite easily settle the issue once and for all. Don't just talk the talk boys, you gotta Walk the Walk. Campaign for a democratic decision. Put it to the vote. Lets have a referendum on the question. The government is already committed to a referendum on the Euro and I would bet a months wages that, given a free choice,  most people will conclude that what they eat is a damn sight more important than how they pay for it! So put up or shut up.  Let the people decide.

Of course, there is not much danger of "Media Watch" or the Financial Times campaigning for the people to be allowed to make a real democratic decision.  Now why do you suppose that is?

And as for the asinine comments ascribed to Roger Turner, the assertion that direct action suggested that "the environmentalists had lost the argument" might be pertinent when applied to the pro Indonesian Militia in East Timor but hardly to the GM activists. In East Timor we KNOW that 80% of the population actually wanted independance. They voted for it in the most spectactular turnout for a democratic plebiscite ever witnessed - and they did so under the most hostile and intimidatory conditions you can imagine. We know that the militia had very clearly lost the argument. But what even remotely similar evidence has Roger Turner seen which persuades him that the GM activists have lost the argument? And don't forget, here, that I'm actually on Roger's  side (in the sense that, for scientific reasons I think the trials should go ahead - albeit in a modified and somewhat more sensitively handled form - and that the public fears result largely from a lack of understanding of the science) but frankly, I feel that we - those  who wish to see the trials continue - we're the ones who have lost the argument here. The public is very very clearly hostile to the current policy on GM crops. On that basis alone, as a democrat, I have to accept that they should not be continuing - until or unless there is an explicit democratic decision to allow such trials.

Now you may argue that the response of the Supermarkets, the opinion polls and mere anecdotal evidence does not constitute a sufficient basis for my assessment of the current democratic consensus. I may even accept that argument. But the logic of that is, if we intend to argue about the implementation of a policy on the basis of whether or not it commands public support, then we are obliged to seek a more informed assessment of where that support lies, not simply to trade guesses. Why? Because, whatever that democratic consensus turns out to be, our public policy has no business being anything less than 100% in line with it. And whereas assessing public opinion used to be a massively expensive and time consuming project which (almost) justified the extreme infrequency of our plebiscites, the technology now exists to allow such consultation on a much more routine basis. If you're reading this, then you are using that technology right now! I know its a novel concept, but get used to it. Don't hold your breath by any means, because there are one or two "i"s to dot and "t"s to cross. But Democracy is on its way. Any millennium now!

(First Draft - 3 May '99)
(Revised 29 Sept '99) 

Creative Commons License
This work is licensed by Harry Stottle (1999-2005) under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 License.

T H E    B O O K
Why Bother?
So, What is It?
Do We Exist?
Meaning, Truth...
How Did We Get Here?
A Theory of Behaviour
Survival,Ethics & Democracy
Part 1- From Neolithic to Neocon

Part 2-Leadership
Abortion and Human Rights
Crime and Punishment
War-Part 1-Morality
War-Part 2-Reasons To Be Fearful
War - On Drugs
The 'Rule of Law'