Friday, 1 January 2016

The Left's Love of Higher Law

One thing I've noticed during debates over the past year or so, is that those on the Left are particularly keen on the concept of Rule According to Higher Law. When they lose elections they always want to appeal to some higher body to stop any changes being made by the winners. (This seems Kantish in origin - perhaps the philosophers can shed more light?)

So at the moment there is a storm of protest about the Polish parliament's decision to make changes to the Constitutional Tribunal and require a two third's majority rather than a simple majority. This is the new parliament's response to the old parliament's decision to try and spike the tribunal with their own place men. The new government has, in the tradition of the right, simply turned around and played the same game with considerably more skill - spiking the committee with its own people.

Of course for somebody from the UK this is mildly amusing, since the UK has no real concept of the notion of a Higher Law. The Polish situation would be rather like the Privy Council or the Lords Spiritual being able to veto legislation passed by the House of Commons. In fact we have the Parliament Act that allows the House of Commons will to prevail even if the upper house - the unelected House of Lords - objects.

Here in the UK, parliament is 100% sovereign and if somebody wins an election, they can change direction at whatever speed they want whenever they want to - if they can get parliament to agree. The judiciary merely interprets the laws and is only able to hold the government (as the executive branch) to account. It has no power to bind parliament. In particular parliament has no power to bind subsequent parliaments.

As I've noted previously, the more I spend time in this area the more respect I have for the UK institutions and the way we get around the awkward self-referential binds there are once you get to the source of power. There is an advantage to a system with over a thousand years of trial and error behind it.

The problem occurs when you try and change aspirational law (like the UN charter on human rights, or indeed the US written constitution) into enforceable law. The question always arises of who does the enforcing and where does their power come from.

This is the pickle that the Polish have got themselves into, and you also see it in the USA where constitutionality is determined by an unelected Supreme Court. Laws are ultimately enforced by people. So how do you ensure those people have the will of the general population in mind when they decide? If they are unelected, then you can't even suggest they have a mandate. And very often they don't understand the will of the people - particularly considering the strata of society they usually come from. Essentially there is a supply side shortage of Solomons in this area.

What the new Polish government has decided to do is to is to take the 'rule by Higher Law' concept and replace it with a 'rule by Law' concept. No doubt the changes will bounce back and forward until somebody realises the whole idea of judicial override of primary legislation is fundamentally flawed in a democracy. Essentially, there are no rights other than those granted by your peers in society, to whom you then owe an obligation if you want to keep them. That then goes right back to the basic philosophy of the system.

As ever I rather like the neat solution the UK has come up with. We have a Human Rights Act which encodes the European Charter on Human Rights (ECHR) into UK law. However it doesn't give the judges the right to override legislation. It just gives them the right to mark legislation 'incompatible'. It is then up to parliament to fix the legislation to make it compatible. But importantly they don't have to.

The people then decide at the next election whether 'incompatible' legislation is a problem, and if they do they will elect a new parliament (and possibly a new government) that will change it.

So when prisoners in the UK successfully argued that their lack of a vote is in violation of the ECHR and judges marked the law 'incompatible', parliament decided not to do anything about it. The law remains enforceable, prisoners still have no vote. At the election the people of the UK didn't change the government to change the law and remove the 'incompatible' marker. So the law stands.

The society has decided that the written document of 'rights' is out of date and that people who violate society's norms have no right to take part in its elections until they have served their sentences.

In this way the law evolves organically along with the society and the ossification and reinterpretation problem of written documents is avoided.