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.
* https://en.wikipedia.org/wiki/Pecking_order
** https://en.wikipedia.org/wiki/Code_of_Ur-Nammu
* see https://en.wikipedia.org/wiki/List_of_revolutions_and_rebellions
** https://en.wikipedia.org/wiki/Nuremberg_Laws
*** https://en.wikipedia.org/wiki/Declaration_of_Delhi
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