The spending bill is actually the creation of a national debt so massive that it has the means to destabilize a democracy dependent on a functioning economy.
– Lawrence Kadish
The above quotation arrests attention, as do thousands and thousands like it. Serious commentators commenting on serious issues – some doomsayers, some constructive analysts – are everywhere, urging on readers attention and, on policy makers, action. Which men of vision have it in them, or does fate intend, to be the original thinkers, the men who change the course of history with their platform for action if democracy is found on occasion not fit for purpose?
What exactly is wrong with democracy per se as a political system? Which system is ideal? Such questions are not for this paper – but what sort of thinking should go on in the conclaves who can put forward good ideas? Ingredients in ‘the petri dish’ as above are called into play; here the attitudes of mind suited for the purpose are to the fore:
You and I, right now, are metaphorically seated in armchairs in ivory towers; what do we know for sure? This is the wrong sort of position from which to hurl our thunderbolts or to advise those charged with weighty decisions on how to put things right.
How far do Petri Dish drives skew judgement? Wishful thinking? Does our wish for an Authority Figure go hand in hand with a temptation to look for his feet of clay? How far do we delude ourselves that we could do better? Are we inclined to go for binary judgementalism, simplicity as to right and wrong? ‘Give a dog a bad name and hang him’ or a good name, and exalt him?
The habit has grown of seeing leaders in homely terms, brought into living rooms on TV as if the thoughts of those in ruling positions are subject to the same laws and considerations that apply to each of us, the same moral imperatives.
- What counts above all? A policy that can affect millions or a backsliding morality in personal terms?
- If a democracy goes wrong and is unfit for purpose at one stage, does this mean it is always unfit for purpose in other situations?
- How free are we from personal prejudice; how open-minded are we, to be able to come to objective evaluations?
- Politicians may be venal but how do we know what pressures are brought to bear on them? How far do we blame nameless advisers for the policies they espouse? How full was the intelligence or understanding on which pivotal decisions turned? Do we expect infallibility of men? How far is it too easy to say what is right when the responsibility for taking action does not lie with the pundit? The mind is concentrated when real as opposed to academic questions are involved. How far should ideology give way to practicality? How confident can we be that we have got things right? How confident can we be that we have hoisted in all the considerations in all the learned tracts on all the books written or words spoken by the cognoscenti? How far, after we have imbibed as much information as we can do we trust our guts, or unconscious mind, to impel us in the right direction?
- How would a better system work in practice, remembering always that history is littered with examples of those who would change the world for the better and the consequences of their actions resulted in worse befalling?
- Characteristics that propel a winner forwards at the hustings are not necessarily those that earmark him or her for efficient high office.
Law cases are decided by jury – why should the principle be confined to the workings of the law? So many institutions at present throughout the world, the United Nations included, and though language of objectivity is used, are the mouthpieces of interest groups. The principle of selecting people for office, often disqualifying those who put themselves forward, may be the obverse side of a joke by Groucho Marx: ‘I wouldn’t join any club that would have me as a member.’ And what sort of people would be selected and by who? Help may be at hand in the shape of psychometric tests and Artificial Intelligence but a flair or creativity often is called for in identifying the right type of personality or culture to fit any given post.
Questions of this nature can go on ad infinitum and are removed from the cut and thrust of political decision-making but some iota of the thinking could start to permeate general thinking about how to fashion democratic institutions anew. Leaving aside the question of personal political choice and supporters of present and past Presidents, is there really no better system in the USA with his 332,643,210 citizens that can produce better incumbents than have been elected? It seems as though the best brains these days fight shy of the hurly-burly of politics and enter other professions; perhaps this is a result of factors in society outside politics, for instance the media or the adversarial system,. in which case there could be working partis to consider the problem. Because it IS a problem. Why should a man who joins a party because his views are in line with it in foreign policy, say, cleave to the party line on social policy? There was no odium automatically attachable to Churchill on his ‘crossing the floor of the house’. Customs have changed but not necessarily for the better.
That said, the dangers of ‘social engineering’ are not to be underestimated. There need not be major changes but piecemeal additives to boost the right-thinking mind-set, perhaps courses of mental training for civic duty, open-mindedness, assessments of possible unexpected ramifications of challenging situations, abstraction in as rounded a way as possible from petty or kneejerk considerations of the day, a clear assessment of situations as they are or might hypothetically happen with as reduced a component of ideological pleading as possible, comparison with alternatives drawn from as wide a range of contexts and countries. As it is, it is all left very much to chance and the ideas of voting multitudes, non expert in the questions as issue, have disproportionate power, with chance feelings about particular issues often winning the day and the luck of idiots’ votes on opposing sides cancelling one another out. In England the House of Lords does much useful overseeing but an official Council of Elders, say, charged with examination of the system as a whole as opposed to specific potentially outdated parts, might be a useful step forward to ensure the ongoing good health of a democracy.
The findings of such a study could have persuasive value. There is unlikely to be any quick fix but much to commend a right-thinking attitude.
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THE ENGLISH LEGAL SYSTEM
Much of what is below is commonly accepted; little enough substantively speaking is done about it save in some individual cases. An overall picture of what many of us may think idly about English Law may serve to file some teeth of legal watchdogs?
If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is an ass — a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.”
– Charles Dickens
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We all but give up on the ideal of Fairness for All as being attainable. We shrug our shoulders at the manifest cases of injustice that can shock. High flown language and a magisterial line is taken, while at the same time we wish to believe that justice is fair in our systems. And yet, and yet, there are so many cases of manifest injustice meted out in law courts that a body constituted to continuously review the system as a whole, as opposed to the piecemeal progress that comes from individual cases before the Court of Appeal in England and law-making in Parliament often owing much to public outcry rather than steadfast principle.
The idea that there is a threshold point in almost all systems known to man and nature after which the rules – that have held good up till that point – no longer apply does not seem to have permeated the thinking of the legal profession. (See above section on ‘the threshold point’).
A legal framework could hardly function if there were no set principles but that is not the be-all and end-all in having a legal framework. There are other purposes such as Justice. In some of the greatest law-giving systems in antiquity exceptions to the rule were built into the system. Both Elijah (see Book of Ruth) and Gideon were allowed even to take the name of the Lord in vain when circumstances for the preservation of the law justified it.
The Napoleonic Code and Common Law are not the same; and have different laws; which is right, and in which circumstances? A law of precedent proceeds in essence from the wisdom of the past but is this right in all circumstances at a present time? It can seem to a lay observer that much of divorce law, for instance, hails fundamentally from a time when there was no major career path open to women but that of marriage; how fit is that from an age of Women’s Rights and equality of the sexes?
We are amused at the proverb that it ‘rains more on the Just than the Unjust because the Unjust steals the Just’s umbrella.’ We snigger that the Emperor Caligula planned to make his favourite horse, Incitatus, a Consul but seem resigned to a Justice system where the law is said to be an ass. We object to Sharia courts being set up in this country because we are all to be under one law where Certainty Rules OK – but isn’t Justice itself in each individual case in often unique circumstances the priority? In a Loya Jurga in Afghanistan, tribal Elders, who know of the circumstances of disputants, gather in a circle and hear all sides and their rulings are respected by common consent. In England, it is virtually the opposite case, where acquaintance with a disputant allows a judge to abstain from involvement in case. If two opponents in a civil lawsuit both opt for an arbitrator of their ken, this idea has no chance of success. In ancient China, courtrooms could be replaced by homely settings for mealtimes, the idea being that the breaking of bread with adversaries round a table was more likely to induce a compromise acceptable to all sides.
Law like religion has to be a code for everyone not tailor-made for any individual; there is no help for it but the fact should be acknowledged. In the British legal system, any juror or Judge who knows the disputants personally is excused from duty on the case. The idea is to take an objective line, free of personal prejudice. In affairs where a large and specialised corpus of knowledge is called for, commercial law for instance, the application of good sense to a given situation may not be enough, it being understood neither side might be guilty in the sense of having evil intent, but that is not the case in many situations involving, for instance, diplomacy and politics. Juries and arbitrators can be called to discuss law, so the same principle might be legitimately in play in other areas of our lives, and, importantly, as in the legal instance just cited, they would be more likely to be seen as free of the taint of personal interest.
What is needed above all is Fair Dealing but sometimes the chance of that happening depends on extraneous circumstances like the fact that our courts are overloaded with backlogs so arbitration panels like ACAS, where simple common sense prevails, are pressed into service.
Categories rule, OK! Or not OK? Some civil cases are more civil than others. When does a difference in degree become a difference in kind? In some civil cases, another tier of justice might be institutionalised comprising, say, of arbitrators, or of citizens, who know the dramatis personae. Is it always the case that arbitrators who do not know the squabbling parties can best determine the rights and wrongs? Each, ideally, according to its’ circumstances rather than of one size fits all. If both parties in a civil dispute wish for and agree to be bound by a juridical panel on whose composition they agree, it might be fairer than sometimes the prohibitively high cost, often more unfair on one side, involved in the current customary procedures. Why should those with deeper pockets be more likely to secure verdicts congenial to them and often be able by virtue of their resources be able to bring an action in the first place? Where is the justice in that?
It will be said that there is no way on this earth that an ideal of fairness is within reach, so what is needed inter alia are sensible rules and certainties. It is a good argument as far as it goes but it is not the only argument. The very attempt at implementation of a perfect system itself can displace pieces of an overall mosaic; the best constitution ever, according to some, the Wiemar Consitution of 1932, fell flat at the first gusts of strong wind. The English legal system ideally may be about fairness for all but is that the whole truth of it and nothing but the truth?