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.

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.

George Orwell and the Rule of Law: the power of illusions

George Orwell never wrote about legal technicalities, but he did something much more important: he described the attitudes once prevalent among English people that made it possible for them to be ruled by laws and not by men. For some reason, they chose to depend on laws –even bad laws– and not on the benevolence of clerks, the inspiration of judges, and the whims of party leaders. Orwell described the mental atmosphere that made that choice possible and made it work. If he helps us to understand it, his remarks might prove to be more valuable than a whole library of law books.

I was born and have lived all my life in Argentina, a country where law is feeble, where people seem to find it better to be swept from place to place by powerful men (or women) than to be ruled by fixed laws. We have good laws, or at least they are not worse than those of other countries. Our Constitution was largely copied from that of the US, as our founding fathers proudly admitted. But one cannot just copy rules, one must then abide to them, and that has proven to be the difficult part.

Many countries –perhaps most countries in the world– suffer the same problem. Nevertheless, apart from some self-ashamed mumbling about national traits, we know and say very little about the attitudes that make the difference. And we must not delude ourselves thinking that this is merely a matter of removing a corrupt upper class because the new one would be the same, or worse: the roots go down to ordinary people. We need to understand why law is respected in a few countries and neglected in most others. That might be more valuable for people’s happiness than the discovery of a new gold mine, even better than a hundred new oil wells.

Orwell had a gift and a passion for describing the habits of his own people: the English people. Unfortunately, Orwell is remembered mainly as the author of Animal Farm and 1984. Of course, these are fascinating books, but one is a fable and the other a novel about a possible future that never came true –at least not in England. This may lead people to forget that Orwell wrote much and well about his own time and about real events. Sprinkled here and there in his many essays and articles, we have Orwell's invaluable remarks about the attitudes that made England what it was in his time, and probably most of what it still is today. As Orwell himself, I have written ‘English attitudes’ and not ‘British attitudes’, but this is not essential to our issue.

English attitudes towards law

The rule of law has crept in many places, but it first bloomed in England. Even foreigners acknowledged it, among others Montesquieu and Voltaire –that was long before French intellectuals had been taught to sneer at bourgeois liberties. In his essay England your England, Orwell said that an all-important English trait was the respect for constitutionalism and legality, the belief in ‘the law’ as something above the State and above the individual, ‘something which is cruel and stupid, of course, but at any rate incorruptible’. In England, wrote Orwell, such concepts as justice, liberty, and objective truth are still believed in.

To this, many people –among them many English people– would object that those beliefs are silly and misguided, that English law is full of incongruities, and that those high words about liberty and justice are just a cover for prejudices. Some would add: at the end of the day English notions of justice are no better than those of the Nazis and terrorists. The only difference between Churchill and Hitler –so goes a common view– is that Churchill hid his power-grabbing strategy behind a mist of morality, while Hitler preferred ruthless sincerity. But Orwell answers: justice, and liberty, and objective truth ‘may be illusions, but they are very powerful illusions. The belief in them influences conduct, national life is different because of them’. Against those who remain sneering, Orwell did not try academic arguments; he said simply: ‘In proof of which, look about you. Where are the rubber truncheons, where is the castor oil?’ Justice was tougher in Orwell's time, but we can understand his argument: 'the hanging judge, that evil old man in scarlet robe and horsehair wig, whom nothing short of dynamite will ever teach what century he is living in, but who will at any rate interpret the law according to the books and will in no circumstances take a money bribe, is one of the symbolic figures of England'.

Now we come to a crucial remark: Orwell writes, ‘It is not that the English people imagine the law to be just. Everyone knows that there is one law for the rich and another for the poor. But no one accepts the implications of this…’. Most people in most countries will immediately follow the implications that the English refuse to accept: if we feel that law is unfair, if a rich man is acquitted when we feel that he should have been punished, then we do not owe obedience to law, and we may well disregard it. Those who reason in this way –a large number in my country and probably in most countries in the world– do not reject the possibility that some day in the future they might respect a new political arrangement, one that is flawless, one that makes mistakes impossible. But till that day comes, one is entitled to evade taxes, pay and take bribes, and bully those who look easy targets. If law is imperfect, it is no law at all.

The ratchet system

Half a loaf is no bread: this is a way of reasoning that Orwell never accepted, and with him, most English people. They accepted improvements and reforms that were far from perfect, and then tried to build something better on top of them, and then something even better, and so on. I would call it, the ratchet system: you advance but always keeping all that you already have of what is right and good. Edmund Burke compared it with an account that grows with new interest but always keeping the capital already gained. 
Comparing rights with an account and progress with capital, how shocking! That is why Hitler called the English “shopkeepers” as opposed to his German heros, always ready to kill and die for the good of the community. Even Orwell thought that Hitler had a point: he said that a planned economy on the lines of Nazi Germany or Soviet Russia was necessary in order to win the war (his article: Shopkeepers at war). However the shopkeepers were able, not only to build the Spitfire, but to defeat the Arian heroes.

Many people –perhaps most people– still reject the ratchet system. I once heard an Argentine man who refused to go and tell the truth in court, not out of fear, but because –as he explained– he thought that trials may end up being unfair anyway. He was afraid that by telling the truth he would look self-righteous –or worse, naïve. Unless a leader takes charge and roots out all the underlying causes of injustice, there is no point in doing right: it is mere illusion –or worse, hypocrisy. You might tell the truth in court (or a lie) as a special favour to a friend or a relative, maybe returning a similar favour you received or expect to receive, but not because of the simplistic notion that one must tell the truth. It is simplistic as well to criticise those who block wheelchair ramps with their cars –a familiar sight where I live. One must take into account that there must be scores of worse faults –even cases of corruption– that will never be exposed. It is simplistic, indeed hypocritical, to argue against a whole array of things: from petty corruption to politically motivated court rulings. This is the way in which people in hundreds of countries manage to accommodate a haughty moral posture together with absolute passivity towards injustice –sometimes mingled with obvious relish in it.

English people, at least in Orwell's time, lacked that gusto for convoluted justifications. They would not think that you have to pass judgement on the whole judicial system first, and then decide whether you will bother to tell the truth in court. English people, wrote Orwell, ‘have a horror of abstract thought, they feel no need for any philosophy or systematic “world-view”’. Instead, they are very capable of acting ‘upon a species of instinct, really a code of conduct which is understood by almost everyone, though never formulated’. Of course, we are bound to meet the old Marxist retort: this is a worldview just as any other. No it is not, and the difference is that law and moral codes are limited. Moral codes set limits; worldviews are boundless. We owe justice to our enemies –maybe stern justice–, but no rule commands us to be unfair. Incidentally, this does not mean that you must love the enemies of your country: this would be reverse-nationalism, as Orwell called it.

Nor are you required to pretend that a lie told by your party is better than a truth told by the opposite party. The historian Lord Macaulay was a Whig, but he must have felt that he was right in dedicating a poem to all that was noble –though misguided– in the Jacobites. World-views scorn all this as hypocritical; ruthless sincerity is better. Instead of the gentleman, the ruthless-man must be admired. The word ‘ruthless’ appears again and again in Hitler’s speeches and in his book Mein Kampf  –it must have been part of what people found attractive in him. In Argentina, General Perón’s motto ‘to the enemy, not even justice’ underpins all our recent history. More than that, I think it sums up all that was wrong in many countries in the past century. Today the names and the places have changed, but that dreadful notion remains as powerful as it was then.

Note: this is the first of a series of articles on George Orwell’s remarks concerning English attitudes and the rule of law. All of them will be published soon in this blog.