LAW AND ORDER
BEGINNING this Part with a study of the meaning commonly attached to the word ‘civilization’, we began (xxxiv) by finding that generically it denotes a process taking place in a community. Specifically it denotes (xxxv) a process of becoming more civil; a word which, we saw, has two meanings. Where it refers to a man’s relations with his fellow-men it indicates abstention from the use of force; where it refers to his relations with the natural world it indicates a combination of industry and intelligence whereby man gets more in the way of food, clothing, and the like out of the natural world, and at the same time forms the habit of expecting to get more.
We then found (xxxvi) that the connecting link between these two ideas was the notion of dialectical thinking, or thinking together with others who are thinking about the same subject and intending to come to an agreement with them.
If men mean to reach agreement about the relations between themselves they treat each other civilly. If they mean to reach agreement about their relations with the natural world they build up among themselves a body of shared knowledge or opinion about things in the natural world and of traditional methods for dealing with them. This, then, is the essence of civilization; the essence of what the word, as currently used, actually means.
Being civilized means living, so far as possible, dialectically, that is, in constant endeavour to convert every occasion of non-agreement into an occasion of agreement. A degree of force is inevitable in human life; but being civilized means cutting it down, and becoming more civilized means cutting it down still further.
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Law and Order is a name for a feature in the life of any civilized community, otherwise called the rule of law. According to European standards a community that does not exhibit the rule of law is not civilized at all; it is barbarous; but barbarity itself is a sort of civilization, though a low sort; and civilization of a sort may be enjoyed without a rule of law, though too low a sort for Europeans to call it civilization: for example, the sort that is enjoyed under the rough justice of a barbarian despot, who may be an admirable fellow in his way.
The rule of law means, first, that there is a law; not necessarily that there is legislation, for there may be a rule of law either where the law is only customary; or where the law is merely what a despot decides from time to time that it shall be; but even so there may be a rule of law on condition that the law he makes to-day shall remain law until he abrogates it.
Secondly, the rule of law implies that those who are under the law can find out what it is. How this is done will differ in different cases; perhaps by consulting the repositories of an oral tradition; perhaps by reading books; perhaps by bringing a test case in the courts; but unless the thing can be done somehow there is no rule of law.
Thirdly, there must be courts where judgements are given according to the law. For a law that is not applied to individual cases is not a law but a dead letter.
Fourthly, there must be equality before the law. What differentiates a law from an executive action or decree (28. 28) is its universality: the fact of its applying to every one of an undetermined number of defined cases. Anyone who comes under the definition comes under the law, whatever characteristics he may otherwise possess.
To deny that all men are equal before the law is to say that a law admits of exceptions; to say that a law admits of exceptions is to say either that it has been carelessly stated (e.g. by someone who said ‘The law prescribes death by hanging for certain crimes’ and forgot that for certain classes of criminals it prescribes other forms of death) or else that it has been corruptly administered (e.g. by a Bench that said ‘We don’t fine the Squire for riding his bicycle without a light’).
Why (the reader may ask) does the European mind set up a standard of civilization which includes, as an essential condition of anything it deigns to call civilization, the rule of law? I will not answer by detailing the possible consequences of allowing the rule of law to die out. Such a catalogue would not answer the question.
The real answer to the question: ‘Why does the European mind set up this standard of civilization?’ is: ‘Because that is the standard to which it is accustomed.’ It became accustomed to that standard under the tuition of Rome.
.... Foolish people do not always understand that the law is a part of civilization. They think that going to law is a way of quarrelling with a man, and that litigation belongs to the eristical (i.e. non-dialectical) side of life.
But going to law with a man is meant for a way of settling your quarrel with him. No one goes to law except in the hope of coming away reconciled. Litigation belongs to the dialectical side of life.
The rule of law means the substitution, in every quarrel which the law can handle, of dialectical (win-win) for eristical methods (win-lose or lose-lose).
Take away the rule of law and you let in the vendetta, the blood feud, and all the forms of violence from which the rule of law has delivered us.
The error that going to law with a man is an eristical thing to do, instead of a dialectical thing to do, is deliberately encouraged in the twentieth century by certain parties who want to destroy the rule of law and reintroduce the vendetta and the blood feud; and by others who act as their jackals.
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39. 7. Here is what no less an authority than Maitland has written about the general character of law in some ‘successor-states’ of the Roman Empire.
39. 71. The Anglo-Saxon laws ‘deal . . . in particular with the preservation of the peace . . . The family bond is strong; an act of violence will often lead to a blood feud, a private war. To force the injured man or the slain man’s kinsfolk to accept a money composition instead of resorting to reprisals is a main aim for the lawgiver’ (Constitutional History of England, p. 4).
39. 72. ‘To force the injured man’. The lawgiver uses force; but he uses it for the sake of agreement. He uses it against an injured party who did not begin the quarrel but suffered aggression, perhaps unprovoked aggression, from somebody else. Here is a casus belli for a private war. But the lawgiver makes no fatuous distinction between aggressor and aggrieved. He wants to stop private wars; and he does it by forcing the aggrieved party to accept a money payment instead of prosecuting the customary blood feud.
Here is force justifiably used for the discouragement of force and the promotion of agreement. The Anglo-Saxon king uses force against the injured party in a quarrel because there is no other way to keep the peace; and the king’s law has for its object the maintenance of the king’s peace.
The rule of law does not only mean that the king, or other head of the executive, uses the power at his disposal for compelling the weaker among his subjects to drop a quarrel and to accept nominal compensation for injuries received.
It also means, since all are equal before the law, that this same technique for checking an eristical process and initiating a dialectical process applies to the entire community without exception. 39. 82. The institution of wergild (since that is what we are discussing) was certainly law of a primitive and barbarous kind; but the men who were responsible for it had learned from their Roman masters one thing at least: that there was no rule of law unless all men were equal before the law.
This did not mean that every man’s wergild was the same as every other’s. It was not. What it meant was that, whatever a man’s wergild was, it was the same for anyone who might happen to kill him. It was neither increased for a friendless killer, who could not bring any graft to bear on the court, nor diminished for a very famous gangster who dined in exalted circles. The Anglo-Saxons may have been barbarians, but they were not barbarous enough to forget that if distinctions of that sort were made the rule of law was at an end.
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Fools have been heard to argue that if so much time and trouble and money were not spent on keeping the weak alive we should have a stouter people, with the unfit naturally weeded out by natural causes or healthy competition, and the fit surviving as Nature meant they should.
I say nothing about that argument. But there is a similar argument to the effect that if natural causes had their way strong masterful men like his lordship here would come to the top and run things in a strong masterful way; and low fellows like this constable who go sneaking to hide behind the skirts of Justices of the Peace and the protection of the law would get a smack in the face, and a good thing too.
Let us get this clear, for it is the most important thing in the book. Law and order mean strength. Men who respect the rule of law are by daily exercise building up the strength of their own wills; becoming more and more capable of mastering themselves and other men and the world of nature. They are becoming daily more and more able to control their own desires and passions and to crush all opposition to the carrying-out of their intentions. They are becoming day by day less liable to be bullied or threatened or cajoled or frightened into courses they would not adopt of their own free will by men who would drive them into doing things in the only way in which men can drive others into doing things: by arousing in them passions or desires or appetites they cannot control.
This is a lesson of history and a very familiar one; everybody knows it, and the more history he knows the better he knows it. There have been peoples whose enemies have gnashed their teeth to find them sitting unshakable on the top of the world. These have been peoples who honoured law and order. The times when they won their greatest victories have been the times when they most scrupulously observed the rule of law.
There is nothing mysterious about this. It is a simple case of cause and effect. It has always been so in the past; if the reader has followed the argument of this book he knows that it will always be so in the future.
PEACE AND PLENTY
....But the rule of law has a value in itself. It is justice. The fruits of justice may be peace and plenty; but by itself, independently of these fruits, justice has a value of its own, and a man or a community that values it values it for its own sake; one that values it only as means to peace and plenty does not value it at all. Moreover peace and plenty can be had (to some extent), though less completely, without the rule of law. What can be had otherwise than through a certain thing is not the end to which that thing is means. ‘Law and order’ is characteristic of a communal life which in itself, even apart from by-products or consequences, is already a good life and (since a good life is necessarily a happy life) already a happy life.
Peace is a dynamic thing; a strenuous thing; the detection, even the forestalling, of occasions for quarrels; the checking of the process by which the non-agreements thus constantly generated harden into disagreements; the promotion of a counter-process by which disagreements (not without the use of force, are softened into non-agreements; and the dialectical labour whereby occasions of non-agreement are converted into occasions of agreement.
Unintelligent or envious spectators of this strenuous and complicated process think from time to time, or pretend to think, because the work is done efficiently and without fuss, without broken bones and waving of flags and firing of guns, that no work is being done; and mistake peace for death, or pretend so to mistake it.
They are like ignorant visitors to some great building, who think because the building has stood firm for many years that it is at rest; not knowing that its component parts never sleep but are always moving this way or that, the movements always being watched and measured by the architects in charge, ready if a movement should exceed the fraction of an inch they allow it to take measures against the strain.
Because it is all done without fuss, a sufficiently unintelligent or sufficiently spiteful visitor might think: ‘These architects earn their salaries very easily. All that is going on is a little eyewash.’ The peace which a community enjoys is partly internal and partly external. Enough has been said of external peace in chapters xxix and xxx; here I will add a few observations about internal peace.
Internal peace involves the suppression of civil war; but that is only a very small part of it. Taken as a whole it is a much more complex thing, a much more difficult thing, a much more strenuous thing, than that.
A situation that might lead to civil war is one in which a community is already divided into factions moved by conflicting interests, hostile to each other, each desirous not of agreement with the other but of victory over the other, potentially or actually armed for a conflict.
A situation of this kind would never arise, and in fact has never arisen, except in a community ruled by men unfit for the job. Otherwise the process leading to it would have been long ago nipped in the bud.
The two means of doing this, corresponding to the two types of men who bring about such a process, are repression and conciliation.
The first type is the ‘gangster’: the ambitious criminal who, being mentally unfit for the strenuous life of peace, hopes to make his mark in a reign of violence and disorder. A community that wants law and order will see to it that it has a system of criminal law fit to deal with these, and courts prepared to administer it.
The second type is the man with a grievance; the man who rightly or wrongly thinks himself ill-used and despairs of obtaining justice. A community that wants law and order will never wait for him to proceed to extremes. It will search into his grievances and remedy them long before there is any danger of civil war.
In a community with a vigorous political life, where the Third Law of Politics operates directly (i.e. the notion that a ruled group eventually becomes accustomed to be ruled as such, and thereby is more able to take on the responsibility of ruling providing the rule increases civility instead of barbarism or servility) , aggrieved persons to some extent rise above the status of a ruled class into one of co-operation with their rulers, and show this new status by becoming able and being encouraged to formulate their grievances and propose remedies.
The gangsters hate and despise this sort of co-operation, as they hate and despise everything symptomatic of a vigorous political life. They do not want redress of grievances; they want civil war, because they feel themselves unequal to the mental strain of a civilized life.
For being civilized is living dialectically; that is, constantly endeavouring to turn occasions of non-agreement into occasions of agreement. This implies constantly overcoming one’s own passions and desires by asserting oneself as free will.This, again, means living at the somewhat high and arduous level of mental adultness; impossible former who, for one reason or another, have never grown up, and intolerable to them in others as implying contempt for their own immaturity.
Just as war means a breakdown of policy where men encounter a problem in external politics which they have not the political ability to solve and retreat from the arduous business of keeping the peace into the easier job of fighting, so gangsterism means a breakdown of mental maturity when men are psychologically unable to go on be having in a grown-up manner and collapse into the easier business of behaving childishly.
They are likely to ‘camouflage’ this collapse either by disguising themselves in the sheep’s clothing of the ‘grievance’ type, pretending to have a grievance when they have none, or by using the ‘grievance’ type as a stalking-horse and posing as defenders of the oppressed.
It is important to know how these disguises can be tested. The question to ask is: ‘How do they stand toward attempts to redress grievances dialectically, by mutual agreement between the parties concerned?’
If favourably the sheep’s clothing is genuine. If unfavourably it conceals a wolf: an enemy of peace and plenty, an enemy of law and order, an enemy of the people whose friend he claims to be.
It is not only quarrels which might lead to civil war that a peaceful community will nip in the bud. Endless opportunities arise for disagreement on questions of policy among the rulers; non-agreements on such questions may harden into disagreements and so give rise to quarrels, or their occasions may be dialectically dealt with as they arise by converting them into occasions of agreement. The former method is an infallible sign of political incompetence in rulers and a fertile source of weakness in their rule. A community whose rulers quarrel, especially if they are so childish as to let their quarrels lead to violence, is an ill-governed community, unable to provide a life of peace and plenty for its members at home and unable to make itself respected abroad.
English manners are the product of English fisticuffs. They are not so polished as manners in Crete or Spain; but fists are not so polished as knives. But in each case the tradition of good manners is the outcome of a tradition that in one way or another men keep their own peace. A tradition of this sort, once established, is easy to maintain. No man need use his fists in a modern English public-house, or even look as if he could. Unless he is exceptionally clever with them, he had better not try. It is not (as might be thought by confirmed baby-passers) that the chucker-out keeps men polite, any more than the policeman keeps them honest. They keep themselves polite and honest. They have been civilized up to that point; and being civilized they value their civilization and keep themselves by their own free will up to the standard they now recognize. (One hopes)
