Monday, January 27, 2014

civilisation and the law


I remember many years ago watching Kenneth Clark’s Civilisation TV program. The one point he made that has always stuck with me is that the mark of civilisation is a belief in the future. When Europeans started building cathedrals that they knew would take a century or more to complete that was a sure sign that Europe was emerging from the Dark Ages into the light of civilisation.

A belief in the future implies a belief in stability and certainty. Stability and certainty are not things that impede progress - they are the key ingredients that make progress possible. If you have stability and certainty you can work on making things better. Without them you might as well continue to live in a hut with a dirt floor. If it can all be taken away from you tomorrow then why make the effort of building something better? But if you do have stability and certainty then it’s worthwhile building a proper house. And when you’ve built the house it’s worthwhile improving it.

All this is of course very obvious. What is perhaps not so obvious is how much stability and certainty depend upon the law. If the law is something that can be relied upon then you’re more than halfway there. Investing in the future becomes an attractive proposition. Building up a thriving and expanding business becomes an attractive proposition.

If working for a better future and believing in tomorrow depend upon being able to rely on the law it naturally follows that the law must be something that is relatively unchangeable. Until the 19th century this was more or less the case in Europe. In most of Europe the basis of law was Roman law. In Britain the basis of law was the English common law. Either way the assumption was that the law was not something you wanted to meddle with. And most importantly, the law was something that even governments were expected to abide by. Even kings were expected to operate within the law. Any king who tried to make drastic changes to the law, who ignored the laws of the land, or who tried to interpret the law in radically different ways, was likely to find himself very unpopular. Or worse. One of the reasons King Charles I of England ended his life on the executioner’s block was that he was perceived as being a king who put himself above the law.

While ever the law remained something that was relatively fixed, and something that governments were expected to abide by, Europe made progress and civilisation flourished.

All this changed in the 19th century. Part of the reason for this was democracy. Governments decided that if they represented the sovereign will of the people then they had the right to change the law. And make new laws. And they did. Lots of them. And they haven’t stopped. In fact the practice was accelerated steadily to the point we’re at today where governments make so many new laws and change so many old ones that even lawyers have to struggle to keep up with the changes. To non-lawyers the law today is an impenetrable mystery, a mass of literally thousands of laws. Almost all of these laws are entirely unnecessary. 

The most obvious result of the legislative frenzy of modern governments is to reduce our freedoms. No government has ever been known to pass a law that increases our freedoms. 

But there is a much worse result. If the law is something that can be changed from week to week then the law is no longer something that can be relied upon. There can be no stability and no certainty. Therefore investing in the future becomes a very unattractive proposition. There’s simply no point. Why bother improving your house if the government can change the zoning laws tomorrow and the day after that your house gets bulldozed? Why bother building up a business if the government can introduce a new law at any time that will destroy your business? Why bother saving for the future if the government can introduce new laws that will wipe out your savings?

This is the way civilisations die. And this is one of the reasons our civilisation is dying.

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