Distaste for arbitrary power: Orwell and Dicey

In two former articles (The Power of Illusions, You don't shoot a man who is running with his trousers down) I have tried to show why George Orwell’s description of English attitudes about law might still be important for us today. Those attitudes can be found outside England: in the US, in Switzerland, but they are becoming rare –perhaps they are already fading in England. This explains why law rules only in a few countries and arbitrary men rule everywhere else. If Orwell was right in his description of English people, then a power that follows no rules will be detested by them, even when that power is exercised for good causes.

I was born and have lived all my life in Argentina. I was a law student at a time when my country was governed by a military junta, and tried hard to understand why dictatorship was possible in Argentina, and unthinkable in countries like Britain, the US, or Switzerland. I first got some grasp of the reasons when I read Orwell. By describing English attitudes, he taught me the meaning of the rule of law better than any of the books we read at the university. Distrust against arbitrary power –or better perhaps, distaste for it– seems to me the cornerstone of the law of the land (of Orwell’s land). This must have been an old English peculiarity: already in the XVII century, John Locke warned that a good king is more dangerous to liberty than a bad one because then it is easier to persuade people to brush aside their scruples about legality and so set a precedent for abuse. When the purpose seems good, it looks mean to quibble about legal restraints. Very often and in many places in the world, arbitrary power will be readily accepted if it seems to be the way to fight “imperialism”, or a tool to achieve full employment. People often think that arbitrary power is not just a way, but the only way to achieve good results –and this seems to be the prevalent opinion in many countries. But not in Orwell’s England.

Distaste for arbitrary power and confidence in rules. Nothing can be understood about English law if one forgets it. Once on the track, I saw that others had stressed the same point. Alfred Dicey, a law professor writing at the close of the XIX century, confirms Orwell’s description. Explaining in his book The Law of the Constitution why English people rejected censorship –which involves a large amount of discretion on those who decide what is to be published–, he wrote “even at a time when the people wished the Crown to be strong, they hardly liked the means by which the Crown exerted its strength. Hundreds of Englishmen who hated toleration and cared little for freedom of speech, entertained a keen jealousy of arbitrary power, and a fixed determination to be ruled in accordance with the law of the land”. Nothing describes the attitude better than this example, says Dicey. It was not a triumph of toleration, he adds, but of legalism.

I would say that most people in most countries hold exactly the opposite view: they would welcome an arbitrary leader, or a supreme court that openly distorts the law, if it serves them in their fight for freedom of speech –or against it. The goal is everything, the legal scruple is nothing.

Today, many years after Dicey and Orwell have died, I am not sure the view they described still prevails among ordinary English people. At any rate, it seems there is no place for it in academic debates, which are concerned mostly with the design of a new structure that will closely follow those found in continental Europe. Scholars find it objectionable that the English constitution lacks a declaration providing higher protection for a number of fundamental rights. Perhaps they do not realise that this is because English law protects each and every right equally. Every right, as long as it is really a right and not a wish, is fundamental. The rule of law is a powerful illusion, but once the spell is broken, once people get used to the idea that the beloved leader of the nation may trample on one right in order to promote another, they lose their scruples –their taboos, as Orwell said. They lose their distaste for arbitrary power. They scorn the gentle-man and respect only the ruthless-man.

Once that happens, nothing else will help. I am not sure English people still realize –as they did in Orwell’s time– that there is no institutional device, no legal text, no matter how carefully they are crafted, that would provide common decency when men and women –those in power and those who empower them– no longer care about it. Written constitutions often guarantee what nobody can guarantee, and though their declarations look grand, they are very misleading. They make it possible to think that eternal vigilance will no longer be the price of liberty. Once rights have been listed, we can rest. Judges and NGOs will take care.

Six years ago I visited London and went to the Imperial War Museum. On a wall in the section dedicated to the Holocaust, I read words attributed to Edmund Burke: “All that is necessary for the triumph of evil is that good men do nothing”. It has been pointed out that it is not certain whether Burke ever wrote these words. It does not matter really because he said the same thing in a thousand ways. Moreover, English people seem to have known it instinctively –perhaps they still do. While other peoples see haughty inaction as the highest moral position one can adopt, English people feel it is right to do something –late sometimes, as against Hitler, but better late than never. While other peoples see arbitrary power as the shortest path to success, English people think it better to stick to the law of their land –well, most of the time. They would think that half a loaf is still bread. They will never understand why their doing a bit of what is right is called hypocrisy by those who do a great deal of what is wrong. They acknowledge the shortcomings of the gentleman –sometimes too readily. I hope they will never learn to worship the ruthless man.