“Tort law in some measure will always be needed,so that we may not be used in certain ways by others merely as means or tools or material resources. But a boundary to tort liability is needed too, if we are to accept ourselves as persons having individual rights with the dignity this constitutes and the responsibilities it implies.” Peter, W. Huber, Liability: The Legal Revolution and its Consequences. 1988
“Law reflects but in no sense determines the moral worth of a society. The better the society, the less law there will be. In heaven there will be no law, and the lion will lie down with the lamb. The worse the society, the more law there will be. In hell there will be nothing but law, and due process will be meticulously observed.” Peter Huber, Liability: The Legal Revolution and its Consequences. 1988
As regular readers of my columns will know, I define individual freedom (or liberty) in the negative sense defined by Isaiah Berlin and Friedrich von Hayek: ‘the freedom of an individual from coercion by other individuals or groups’. I place great emphasis on the rule of law as a first-line defense for such freedom: ‘laws should always be clear and well-advertised, they should always be prospective, never retrospective, they should be universal, never discriminating in favor of some individuals over others, and equally applicable to those who rule as to those who are ruled.
In terms of these criteria, no people on earth are, or ever have been, fully free. Some peoples, of course, are freer than others in terms of the approximation of their respective legal systems to the rule of law. The United Kingdom and the United States – the two countries with which I am especially familiar – fare quite well internationally in such a comparison. But, as Peter Huber notes in the opening quotes for this column, something more than good law is required for a people to be free. The moral worth of a people also plays a crucial role.
Now, as an economist, I do not view ‘moral worth’ as being entirely exogenous to law. Individuals respond to incentives and penalties, and the law, good or bad, provides plenty of those. Over time, individuals evolve in response to such induced behavior, and reflect the qualities that such laws demand. So there is a good deal of interaction – benign and malignant – between the law and the moral worth of a society. That does not imply necessarily, however, that all peoples are equally suited to freedom, that good laws will take any society to the land of the free. Whether by nature or by nurture, or by some combination of the two, nations tend to be differentially amenable to achieving true freedom under the rule of law.
Let me draw upon my own experience, living the first half of my life in the United Kingdom and the second half in the United States. As a classical liberal by inclination, I have a developed sense of the nature and the importance of freedom. So my observations, though ad hominem, are surely worthy of critical consideration. Let me say unequivocally that I always feel more free in the United Kingdom than in the United States. Yet, on paper, the United States, with a written constitution that includes a firewall bill of rights, provides better safeguards against coercion than a country where parliament retains a ’divine right’ to invade all liberties at the will of a majority.
Yet freedom is in the air in the United Kingdom as it surely is not in the air in the United States, the rule of law not withstanding. The difference, I have come to understand, lies in the ‘moral worth’ of the people, here defined narrowly to reflect different attitudes towards the imposition and the acceptance of coercion. Let me illustrate with regard to the nature of national sporting pastimes: in the UK, soccer, rugby football and cricket, in the United States, football and baseball.
Soccer, rugby football and cricket, all games that I have played in my youth, are what I refer to as bottom-up sports. Prior to the game, the coach plays an important role, developing strategies and tactics for deployment on the field. But in largely free-flowing, perpetual motion sports such as these, the players must improvise on the pitch, in response to evolving circumstances. The role of the coach is limited to the waving of hands from the touchline and to the making of limited substitutions on the field. For the most part, these bottom-up sports do not appeal to the American psyche. There is insufficient top-down planning for their liking. There is not enough coercion of the players on the field by those on the sidelines.
So Americans favor football and baseball as slow moving, cumbersome, coach-specialized sports with ample breaks for the intervention of the coach and with radio contact between players and coaches throughout the game. These are top-down sports with deliberately designed unnatural breaks to provide dictatorial coaches with even more control over the players, who essentially are willing robots on the field. The American pysche has a highly developed preference for war games, if you will, where generals marshall their infantry and their cavalry in strategic and tactical maneuvers on largely Napoleonic lines, albeit with the generals now well back from the sidelines issuing their commands by wireless communications.
Reflect now on the implications of this different psyche (moral worth if you will) for the implementation of the law. In the United Kingdom, the law provides the framework for society. It is to be used with discretion by those responsible for its enforcement. A youth who infringes the law in some minor way might well receive a clip behind the ear from a genial bobby and a a quick despatch to his parents for more specific treatment. More serious, or repeat offenders will be dealt with in a suitably more vigorous fashion.
In the United States, laws are much more likely to be enforced always with full due process. The cops on the beat are much less genial, much less inclined to leniency when confronted with young mischief. Bureaucrats by nature, the full force of the law will be applied, guns will be unholstered, and those who refuse to conform to oft-times outrageous commands may be executed on the spot. Society condones such ‘due process’ because it is more fearful of anarchy and less concerned about freedom than is its British counterpart. The fear that currently flows through the Hispanic population located in the State of Arizona is an understandable response to the American attitude towards the enforcement of laws, however justifiable the new immigration laws may look on paper. It is the policeman’s gun and stick, not the parchment of the law, that legitimate as well as illegitimate Hispanic residents rightly fear.
When laws are ubiquitous, and implemented with full due process, a paradise can swiftly become a hell. Tom Clancy, the well-known author of military-worshipping novels, typifies this attitude in its most obnoxious form. I well remember a passage in one of his novels in which he intones that God’s Pavements and Sidewalks in Heaven will be comprehensively patrolled and policed by U.S. marines! That no doubt is many an American’s dream. It might encourage some freedom lovers to opt for a little wickedness in life in order to rest, for a while at least, in Purgatory, if not in Hell itself.