George Orwell and the Rule of Law: you don't shoot at a man who is running with his trousers down

Almost all countries claim to be democracies; some back up that claim with free elections, others with public parades in praise of the beloved leader of the nation. The rule of law, by contrast, is an advantage that only a few countries can even claim to enjoy. It is definitely a good in short supply. 

In a former article, I have tried to show that George Orwell is still the best in explaining why it is so. Any country can hire a number of law scholars and ask them to produce a good copy of the most advanced laws and constitutions they find in the world. In Argentina, we have tried American constitutional clauses, articles from the French civil code, Italian forms of trial, and German penal theories, but all this relates more to intellectual fashions than to people’s lives. The rule of law has nothing to do with those changing fashions; instead it requires a certain frame of mind in the whole population.

In his book 1984, Orwell described how hell on Earth might look like; unfortunately people forget that he also described the attitudes that would prevent it from becoming true. He did that in the articles he wrote about the people he knew best: the English people. One of the things English people lack is a world-view, Orwell said. Instead, they have (or had: being a foreigner, I am not sure) a code of behaviour. Respect for that code forms the only possible ground where the rule of law may survive and prosper.

As we read in 1984, there are no well-defined crimes against world-views, only actions that advance or hinder the final victory of the party and its leader; and that is why intentions do not count. This is no fiction: we can see that taking place today, for a natural result of this twisted way of reasoning is that a child may be objectively guilty, and so it may be right to plant a bomb in a school. All actions are seen as objectively good and objectively bad –‘objectivity’ meaning here: useful in order to win. 

For the same reason, there is no objective decency, no pride in generosity and uprightness, and you may well sneer at them. Comfortingly, this is called ‘realism’. ‘Its growth’ –wrote Orwell in Raffles and Miss Blandish– ‘has been the great feature of the intellectual history of our own age’. Against realism, most English people remained attached to their outmoded codes of behaviour. The crucial words, said Orwell, were ‘not done’: there are a number of things one will not do, some limits one will respect. And I may add that this was not based on any socio-economic-psychological-semiotic theory. One simply adhered to the rules because that was the right thing to do.

Orwell said that English people followed a moral code as if they were sleep-walking, and more by instinct than anything else. In The English People, he wrote, ‘The masses still more or less assume that “against the law” is a synonym for “wrong”. It is known that the criminal law is harsh and full of anomalies and that litigation is so expensive as always to favour the rich against the poor: but there is a general feeling that the law, such as it is, will be scrupulously administered...An Englishman does not believe in his bones, as a Spanish or Italian peasant does, that the law is simply a racket’. I am not sure what Spanish and Italian peasants would say today, but I know that most Argentines would think that an unfair legal system should not be scrupulously administered. Disloyalty to the existing law may mean loyalty to a new and better one that is yet to come. Certainly, the trouble with this lofty approach is that the better law is not actually a law, or a code of behaviour, but a world-view. Circumvention of existing laws is then justified, even made commendable, on the grounds of vague and contradictory wishes, which could never really become a new and better law.

In Raffles and Miss Blandish, Orwell contrasted Raffles, the old-fashioned thief, with the gangsters in J.H. Chase’s novel No Orchids for Miss Blandish. We see that Orwell prefers Raffles for his attachment to his country and his respect for a code of honour. Instead, the characters in J.H. Chase’s novel are all equally brutal, even sadistic. Both the gangsters and the police are there just for the money; no nonsense about patriotism and inviolable codes. Orwell remarks: ‘The Raffles stories, written from the angle of the criminal, are much less anti-social than many modern stories written from the angle of the detective’. I must add that, with a few exceptions, this has remained a characteristic of the genre ever since. Nevertheless, Orwell admits that the line Raffles draws ‘between good and evil is as senseless as a Polynesian taboo, but at least, like the taboo, it has the advantage that everyone accepts it.’ I would not go as far as Orwell, and would rather say that most of Raffles’s code makes sense. Not abusing hospitality, a rule that Orwell describes as part of Raffles’s code, does indeed make sense in Polynesia as well as in England.

Orwell’s remark, however, points to something important. It is always easy to spot incongruities in any existing code of behaviour. Every existing legal system owes much to history and even to chance. Moreover, anyone can easily imagine a situation -however unlikely- in which the most sensible of rules would seem unfair. Modern philosophers are very fond of doing it, and so they discuss –as professor Ronald Dworkin does- what sort of insurance one would try to get before one is born if insurance were available against the possibility of being born a reckless person, or clumsy, or stupid. When one gets used to those intellectual exercises, it is easy to feel that one can pass swift judgement on existing rules, as a saint would do while looking from the summit of Mount Everest to the world beneath. 

Many people in Argentina adopt that view and say: all codes of behaviour are equally wrong, all have flaws –the rest is vanity. Certainly, one loses a considerable part of that varnish of sainthood if one descends from high regions of hot air and goes into details, acknowledging that some codes are worse than others, and that most codes are better than none. 

Orwell provides us with an anecdote that shows how a code that is followed by instinct may seem absurd. In Looking back on the Spanish war he writes that one day he and another Republican soldier went to snipe at their enemies, who had their trenches at some distance from them. When they were close enough to fire, they saw that the enemy was being attacked by Republican planes. The enemy was in confusion, and suddenly Orwell saw a soldier running along the top of the parapet, half dressed and holding up his trousers with both hands. Orwell refrained from shooting at him. 

Both before and after describing the incident, he says that he thought that there was not much meaning in his scruples against shooting the man. Perhaps –I would add– he though that the rules he was instinctively following did not make more sense than a taboo. You will be ready to kill the man in the next battle, so why not shoot at him while he is running with his hands on his trousers? This sounds logical, but awful, and it is a line of argument that can be used against every moral scruple. This boy will be a soldier in a few years, and then you will be trying to kill him; so, why not kill him now? Scruples are always open to attack, and one often tends to deny that they make any difference –that is, till scruples are lost because then one sees the difference.