We have just returned from a very
short stay in France with Keith and Emma in Charente during the course of which
one had three star Michelin treatment and food. We also had occasion to
socialise with some neighbours of theirs and exchanged anecdotes and general conversation
with a very lovely array of wines. I undoubtedly talked too much, however, in
the course of the evening I recalled my experience of writing an essay for the
philosophy class I was auditing in December of 2016. I wrote a blog about the experience which can
be found at:
https://fbuffnstuff.blogspot.com/2016/12/the-common-law-with-apologies-to-lenny.html
I have since dug out the essay
which I produce here in the original English.
I have no idea whether it’s any good or not as a scholastic essay, as
the only comment at the time was “Interesting”, probably meaning not very good.
Nonetheless, in the last paragraph I mention the concept of the ‘duty of care’
of politicians and judges. On observing
the current crop of would be political leaders and the frankly disastrous
judgements handed down by the United States Supreme Court in the matter of
women’s rights over their own bodies and the outrageous view of United States
presidential immunity, the failures to observe the ‘duty of care’, by certain
candidates, some current leaders and Russian and American Judiciary, are
legion.
The lack of care and the
pandering to personal prejudice by the United States Supreme Court, Trump and
Republican Party appointed Justices is a mockery of what the independence of
the Judiciary and the concept of checks and balances. That all three branches
of government have melded together in support of a psychotic gangster whose corrupt
narcissism knows no bounds, makes it seem as if those Continental Congress meetings
in Pennsylvania had never happened. The United Sates appears to have
cut itself from its roots and is freefalling into an abyss. In any event I
would love a view however harsh, bearing in mind the 3000 word limit:
Le Droit et la Convention
This essay proposes to examine how expressions, extracted from
deep-seated sentiments and feelings in individuals, developed and established
rights and societal conventions, some of which became encoded into law. It also
proposes that as societies matured, it became apparent that its constituent
members were entitled to certain fundamental rights as individuals. Indeed,
since the beginning of time humans have slowly formulated various aspects of
the human condition into a list of attributes, which are now held to be a
natural part of their very being. Those attributes are now identified as
inviolable and are defined as human rights. It follows that both laws and
conventions are changeable according to how strongly what are considered basic
and deeply felt human rights are supported by a society.
In the course of this essay I will refer to the writings of Adam Smith
and David Hume, with additional comment from Martha Nussbaum and some other
thinkers. I deliberately do not make any specific references except where using
quotations. The ideas are formed from experience, personal research and what I
have taken from the course material.
As human beings appeared on the earth they initially roamed free,
either singly or in groups and, at some point formed into to groups or tribes.
These groups or societies, of necessity, began to establish certain rules and
regulation in order to maintain and safeguard the survival of the group. We
know this from the numerous archaeological studies that have been conducted
over the years. We also know that some sort of pecking order would have been
established, again, perhaps as a means of survival and to maintain the
integrity of the group. Pecking
order or peck order is
the colloquial term for a hierarchical system of social organization. It was
first described by Thorleif Schjelderup-Ebbe in 1921 under the German terms Hackordnung
or Hackliste.
The needs of these primitive societies were fairly simple and straightforward.
Food, shelter, clothing, safety and survival were clearly the primary concerns,
much as they are today. As the societies grew larger and more diverse, the
rules and regulations between the members of the group evolved in order to
accommodate the changing circumstances. With the passage of time these groups
and tribes formed into nations and states. As these nations and states grew so
rights, laws and conventions developed to accommodate and promulgate the
continued existence of the state.
Underlying this progression towards what is called civilisation, there
was still the roaming spirit of the individual. Deep down within was a need to
be free. Incorporated into this free spirit there is, inter alia, a sense of
identity, of self-respect, empathy and the ability to make judgements.
The laws pertaining to individuals have resulted from a need to
establish a means of regulating interaction between members of a society. In
the course of establishing that interaction a number of conventions may have
arisen, e.g. the language used to communicate, the clothes one wears, what is
considered appropriate or inappropriate in specific situations, the terms under
which one transacted business (a promise, exchange of goods, money, invitation
to treat, bargaining, return of merchandise etc…). Any number of practices
developed to enable individuals to coexist peacefully in a consistent and safe
manner. It is a matter of survival. In short, a number of customs emerged
within certain groups as to how they would continue to conduct themselves in
their relationships with each other, thereby establishing a form of standard or
best practice, hence convention. In order to maintain the efficiency of those
manners which were most favoured and which, in most people’s minds, produced
the fairest means of interacting, they were presented as rules and regulations
which were subsequently codified into rights or laws. This was done in order to
protect and safeguard the parties involved in the exchange, as well as the
manner of the exchange. Thus convention became common law and common law became
written law.
The notion of survival is inherent in the establishment of society. As
Hume suggests in his Treatise on Human
Nature man is essentially a feeble creature and “It is by society alone he is able to supply his defects, and raise
himself up to an equality with his fellow creatures, and even acquire a
superiority above them. By society all his infirmities are compensated [….] By
the conjunction of forces our power is augmented by the partition of
employments, our ability increases; and by mutual succour, we are less exposed
to fortune and accidents. It is by this additional force, ability, and
security, that society becomes advantageous” (Hume 1854 Vol 2, p.250).
Hume goes on to discuss the notion of union, children, family, work,
possessions, and the general interaction of human beings in society. Whether
their interests are selfish or benevolent, “It
is only a general sense of common interest; which sense all the members of the
society express to one another, and which induces them to regulate their
conduct by certain rules. […]When this common interest is mutually expressed…
it produces a suitable resolution and behaviour. And this may properly enough
be called a convention…”(Hume 1854, p 255)
The interaction between individuals is made more possible by the very
nature of the human capacity towards empathy, the ability to put oneself in
another’s place, through our imagination. Adam Smith refers to this capability
as sympathy. He goes on at some length in his Theory of Moral Sentiments about the nature of sympathy and “the manner in which we judge of the
Propriety or Impropriety of the Affections of other Men, by their concord or
dissonance with our own” (Smith 1853 p. 14). For Smith it is not a matter of
simple imitation “How selfish so ever man
may be supposed, there are evidently some principles in his nature, which
interest him in the fortune of others, and render their happiness necessary to
him, though he derives nothing from it, except the pleasure of seeing it. Of
this kind is pity or compassion, the emotion which we feel for the misery (or
joy) of others, when we see it, or are made to conceive it in a very lively
manner…[…] The greatest ruffian, the most hardened violator of the laws of society,
is not altogether without it.[…] It is the impressions of our own senses
only…which our imaginations copy. By the imagination we place ourselves in (the
others) situation, we conceive ourselves enduring all the same torments, we
enter as it were into his body, and become in some measure the same person with
him, and thence form some idea of his sensations, and feel something which,
though weaker in degree, is not altogether unlike them.” (Smith 1853, p
3-4).
Smith goes on to argue that the nature of the sympathy we feel is the
result of, as well as the inspiration of, a number of conventions. He
postulates the notion of the impartial observer whose levels of
sympathy/empathy are initially at neutral. He suggests that there are certain
emotions with which we tend to more readily sympathise, those involving
pleasure or joy, and those with which we find more difficult to associate, pain
and suffering. He suggests by contrast that those emotions relating to pain and
sorrow are more deeply felt that those involving pleasure or joy. Not that they
cannot be felt with the same level of intensity, but sympathy leaning towards
pleasure is more easily arrived at. He also proposes that there is a hierarchy
of sympathy in that there is a tendency to be more sympathetic to those persons
who are on a higher social plane than others. More deference is shown to the
rich and powerful and to those persons in authority. It is that very nature of
acquiescence that permits the social hierarchy to exist. The fact of
submissiveness allows the imposition of authority.
I believe both Hume and Smith were of the view that this quality of
empathy and the ability to interact with others are the foundations on which
conventions, rights and laws were established. Empathy and ability go a long
way towards civility. Throughout history various civilisations have come and
gone, leaving a small vestige of themselves, which are more revealing in their
similarities, than in there differences.
We have seen a number of nations and states, with a variety of
societies, which have thrown up a variety of systems of governance:
1-
Dominions
2-
Federations
3-
Empires
4-
Kingdoms
5-
Autocracies
6-
Democracies
etc.
All have existed with either the approval and support of the general
populace, or as a result of the submission of the general populace to an
authority whether benevolent or not. Authoritarian rule tends not to be
benevolent. Allied to all these forms of government is a religious of mythical
element which purports to uphold some form of moral civility. This is in effect
a convention of religion, a high moral tone. In any event the laws laid down
appear to have the same primary concerns, the protection of the individual from
harm and loss of property. Quite often the two went together. The earliest
known written law, the Sumerian of Mesopotamia contained:
•
1. If a man commits a murder,
that man must be killed.
•
2. If a man commits a robbery, he
will be killed.
•
3. If a man commits a kidnapping,
he is to be imprisoned and pay 15 shekels of silver.
•
[…]
•
6. If a man violates the right of
another and deflowers the virgin wife of a young man, they shall kill that
male.
and many more.
The Ten Commandments of
the Judeo-Christian world contains yet similar laws. Thou shalt not kill,
covet, commit adultery, steal etc..
There
are also laws relating to business transactions and what was alleged to be
deviant sexual conduct. All these laws
relate to the various conventions, methods of functioning, adopted by
individuals during the course of interacting with each other in society.
Underneath it all were the continuing rumblings of dissatisfaction because of
inequalities and oppressions that overrode the various societies. It should be
noted that David Hume died in 1776 during the first year of the American
Revolution which decreed “We hold these
truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among these are
life, liberty, and the pursuit of happiness.” and Adam Smith died in the
first year of the French Revolution on the 16th July 1790 almost
exactly one year to the day. That event gave rise to the motto ‘liberté,
l'égalité fraternité’ and The Declaration of the Rights of
Man and the Citizen, the first two articles of which are:
Article I - Men are born and remain free and equal in rights. Social
distinctions can be founded only on the common good.
Article II - The goal of any political
association is the conservation of the natural and imprescriptible rights of
man. These rights are liberty, property, safety and resistance against
oppression.
________
The
Charter of Fundamental Rights of the European Union defines and enshrines in
law certain conventions to establish the rule of law for the protection of the
supreme dignity and integrity of the individual, that all are subject to the
law and that all are equal before the law. There are 54 articles divided into
seven titles covering Dignity or the right to life, prohibiting torture,
slavery, the death penalty..; Freedom, liberty, personal integrity, privacy,
thought, religion, expression…; Equality, equality before the law, prohibiting
discrimination based on disability, age, sexual orientation, culture,
religion…; Solidarity, working condition, right to work, unfair dismissal..;
Citizen’s Rights, right to vote,…; Justice, presumption of innocence, fair trial,
etc…; and various general provision of interpretation.
It
is clear then, that human beings have progressed to believe in terms of
fundamental human rights as matters which are self evident. From a natural
disposition to be free and a capacity for empathy, to speak freely, to think
freely, to have dignity and respect, arise the conventions of a more
enlightened society. There was a time, not so long ago when the convention was
that homosexuality was a disease and criminally deviant inappropriate behaviour.
We now have same sex marriage. There was a time, again, not so long ago, when
the convention was that a wife was her husband’s property, a man could not be
found guilty of raping his wife and was allowed to beat her with a stick no
thicker that his thumb. There was a time when the convention was that slavery
was an established economic reality. Unfortunately there are current societies
where these conventions are still held to be true.
Ultimately
a human being does understand the concept of justice. Natural feelings of
resentment spring up when we feel slighted in some way, or are simply ignored.
We feel satisfaction when that slight is redressed. We feel happy or contented
when we are taken into account, loved and cared for. Likewise when one feels
cheated or put upon, feelings of anxiety and emotional hurt come to the
surface. People recognise dishonesty and pain, both physical and mental. These
are all natural human emotions, and it is these feelings which well up or
subside when we see others going through whatever situation may cause them
grief or joy. It is through these emotions that we negotiate our interaction
with society. Some are more active than others, more ambitious or industrious,
whilst some are more retiring and not so forthcoming. Whatever the inclination
our feelings and emotions are very similar to one another. A desire for some
recognition and respect for our individuality is a simple request.
Whenever
these fundamental feeling have been suppressed or thwarted, whenever people
have felt aggrieved by some insult or injustice, wherever people have felt
oppression in sufficient numbers there has been revolt. In the main the popular
outcry of these revolutions (the historical list goes back to 2730 BC) has been ‘freedom for the people’ and a demand for
‘people’s rights’. All too frequently there have been groups of individuals who
have attempted, and succeeded, throughout the ages to impose particular
‘conventions’ on others. This has led on several occasions to world conflict.
The institutionalised racism of the Nazi regime is one of the more dramatic and
calamitous instances of a convention of intolerance. Ideas and attitudes as to
how things should be done can easily become a convention and then be enacted
into law. The Nuremberg Laws of 1935
were the culmination of a systemic anti Semitism which existed in Middle
Europe.
It
is not surprising then, that following on from the momentous revelations of the
Second World War that matters were taken in hand and a world of jurists were
brought together. In 1959, a conference was held in New Delhi in India. A gathering of over 185 judges,
lawyers and law professors from over 53 countries round the world, came
together as an International Commission of Jurists to discuss “The rule of law
in a free society”. (see appendix)
One of the principles
stated by the congress was that “that the Rule of Law is a dynamic concept
for the expansion and fulfilment of which jurists are primarily responsible and
which should be employed not only to safeguard and advance the civil and
political rights of the individual in a free society, but also to establish
social, economic, educational and cultural conditions under which his
legitimate aspirations and dignity may be realized…”
The
Rule of Law is the current overriding convention for the continued existence of
society. Its fundamental principle is the concept of the ‘Duty of Care’, the
duty that each individual must have regard for other individuals. It is a
matter of common law.
As
to the enforcement of that convention, we call upon each one of us and in
particular to our judges. Martha Nussbaum has expressed a view as to what it is
to be a jurist. In her essay Poets as Judges: Judicial Rhetoric and the
Literary Imagination (1995) She references the Impartial Observer proposed
by Smith in his Theory of Moral Sentiments (1854) and the American Poet
Walt Whitman’s ‘equable man’. She sees the jurist as a person of rounded
education and well read not only in the law but in the arts as well. I will
leave the last words with her:
The literary judge is
committed to neutrality, properly understood. That is she does not tailor her
principles to the demands of pressure groups, and she gives no group or
individual special indulgence or favour on account of their relation to her
interests, As a judicial spectator, she does not gush with irrelevant
sentiment. On the other had she does not think of this sort of neutrality as
requiring a lofty distance from the social realities of the cases before her.
Indeed she examines those realities searchingly, with imaginative concreteness
and the emotional responses proper to the judicious spectator.
Nussbaum
(1995, p 1482)
According
to Smith, it is in the very nature of human beings to have a degree of empathy.
That empathy is properly viewed as an impartial spectator observing the actions
of others. We carry that impartial spectator within ourselves and through him
or her we react accordingly to the actions we observe in others. That is we
empathise with their pain or joy or whatever emotion they are going through. We
observe their actions from which we form judgments as to whether those actions
are to be considered appropriate or inappropriate in the circumstances, and
whether those actions are worthy or unworthy in the particular situation. Smith
goes further and proposes that this impartial observer, this inner spectator
does the same when it comes to our own actions. We review our actions in our
minds and make the same judgments as to appropriateness and worthiness. This
can lead to regret and recrimination or satisfaction and gratitude, again
depending on the circumstances.
What
seems clear is that this impartial observer acts as a monitor of our behaviour
and is cognisant of the feelings and needs of others as well as ourselves. It
is this empathy which is at the basis of the duty of care, and the rule of law
takes cognisance of that duty to individuals, with the common law principle of
the duty of care. We owe each other a duty of care. We do not steal because we
should not steal, we have a duty of care to respect each others property.
Manufacturer’s do not sell faulty goods that could hurt the people who buy
them, because they have a duty of care to their customers not to do them harm
or cause them loss. Doctors have a duty of care to their patients. Politicians
have a duty of care to their constituents. Judges have a duty of care to the
law. We all have a duty of care to each other. That is a basic convention of
the rule of law.
