Modern debate and political discourse

Social media seems to cater to a rather limited conception of debate. People argue as means to “win” and “show off” to an audience of spectators.

But this is easy, – and sadly misses the point. Argument is much more valuable for its own sake and much more distasteful when linked to things like egotism and social competition.

This clipping from an article in BloombergView seems to sum up the issue quite well:

In the end, I think people overreact to the “stupid” insult because, as a society, we use arguments the wrong way. We tend to treat arguments like debate competitions — two people argue in front of a crowd, and whoever wins gets the love and adoration of the crowd, and whoever loses goes home defeated and shamed. I guess that’s better than seeing arguments as threats of physical violence, but I still prefer the idea of arguing as a way to learn, to bounce ideas off of other people. Proving you’re smart is a pointless endeavor (unless you’re looking for a job), and is an example of what Stanford University psychologist Carol Dweck calls a “fixed mindset.” As the band Sparks once sang, “Everybody’s stupid — that’s for sure.” What matters is going in the right direction — becoming less stupid, little by little.

 

Political disaffection and the hypocrisy of the modern demagogue

rabble-rouser1

Demagoguery is polarizing propaganda that motivates members of an ingroup to hate and scapegoat some outgroup(s), largely by promising certainty, stability, and what Erich Fromm famously called “an escape from freedom.” It significantly undermines the quality of public argument… In the most abstract, the reason it is so harmful is that it creates and fosters a situation in which it is actively dangerous to criticise dominant views, cultures, and political groups. It makes discourse a kind of coercion, largely through rousing and appealing to hate. Thus, the very people who make the decisions cannot hear all the information they need.*  

Demagoguery is no stranger to democracy. It is a challenge inherent to the functioning of any healthy democracy and one that poses a significant threat to the system’s stability and cohesive ordering. It seems to amount to a vicious cycle with no resolution or constructive effect, other than the apparent trend towards increasing influence for hacks, celebrities and demagogues. The result: Greater disaffection among the public for the complex political-legal structures their learned influencers claim to understand so thoroughly. Those who know a lot about pandering to prejudices and emotions are accepted more readily than those who seek an informed reality, while providing answers that appear correct is more important than asking the right questions. How can this possibly be the case as we enter the Information Society?

The internet is essentially a network of the many, with major nodes controlled by the few with the finances to operate them. They rely on one another to be an effective medium in the same way that you cannot have a business without consumers. Ultimately, though, what we seem to be getting out of this market is either top-down simplified mass media information on a constant basis or reactive bottom-up simplified opinion type information. They both influence and follow the other, trapping their readers along with them. With a trained eye it’s not necessarily difficult to find credible information out there. But for most it would unknowingly seem to be obscured by the shadow of the bulk available. It is important to ask, therefore, whether this system can allow for independent critical thinking or whether it merely facilitates the cult of consensus, driven largely by the moralization of complex issues – see my previous post on aspects of this.

Naturally the internet provides immense opportunities for the dissemination of all sorts of information – from all manner of porn, to pictures of what you had for dinner, inane status updates and pouty self-admiration. Lost amid this list is the bracket of political opinion. Though with the internet as a new rapid-fire outlet for 24/7 news reporting as well as for the traditional media, political opinion may yet feel more at home. The only twist is that those expressing their views can, to an extent, detach themselves from others invested in the same conversation since a keyboard and a screen are not quite the same as a tête-à-tête discussion. One can interpret a written text in a variety of ways and thus in an age of instant communication the propensity for miscommunication seems to have escalated. This is the result of underdeveloped communication en masse via the medium of the computer and creates problems for individuals communicating among themselves, but not necessarily for the professional cranking out one-way propaganda. For them, being able to constantly bombard audiences with well-spun reports on current affairs must be next to ideal.

And from this one might surmise that the modern demagogue appears to be thriving in the networked economy. So let’s examine some of the features of demagoguery as outlined by Patricia Roberts-Miller, a member of the faculty over at the Department of Rhetoric and Writing at the University of Texas.

According to Roberts-Miller, the term ‘demagogue’ should not be afforded its popular meaning, simply “effective rhetoric on behalf of political agenda I dislike,” for it this view that is likely to increase the likelihood of persuasion by demagoguery. Undeniably this must be correct. Those blinded worshiping the opinions of others engaged in demagogic rhetoric will only become further enthralled with them when it appears to strike a chord with the opposition as well. After all, this type of incitement is in many ways the objective. The word is effectively seen as a loaded pejorative, particularly to those most susceptible to its effects, namely the uninformed partisan with a cause. In this essay I’ll be using it descriptively, and similarly to the way Roberts-Miller characterizes it.

Demagoguery in the plain sense is always polarizing, and as such destructive and undermining of any form of constructive deliberation over the problems of a community. It should not be distinguished solely on the grounds of its appeal to emotionalism or populism (as most dictionaries tend to, although given the loaded pejorative form this is understandable, and to an extent even accurate) despite these being common elements. There are helpful means of deliberation that similarly employ emotionalism or populism, and even rational elite discourse can be demagogic. Nor should too much emphasis be placed on violent calls to arms per se, although aggression one way or another does tend to result, even if not necessarily physical in nature. Though I wholeheartedly endorse Roberts-Millers’ description, as well as the rest of her analysis here (required reading; more detail here*), I would like to advance a sort of middle-ground view in order to connect her description to its practical manifestation in the networked economy as I see it. A more malleable definition which incorporates her leading characterizations, but does not adhere strictly to definitions relying predominantly on emotionalism, populism and/or violence either. My focus is not on elite discourse demagoguery and instead on the nonsense that captivates enough of us today for Russell Brand to sell 50,000 copies of his latest book, Alex Salmond to headline at an SNP folk concert as he weeps for Bella Caledonia, and for Nigel Farage to command his army of Kippers. Matt Kenyon 20022014 There is what I’d like to call an irony of progressivism today, in that with more information out there, less is being heard. Perhaps it isn’t the political system as an entity that is so easily polluted as are the minds of those so desperate to change it with the power of their own naivety. “Let’s change the electoral system, that will fix things because one system of voting for MPs clearly only has advantages – it’s just so proportional and representative, no one will feel left out, it has to be a good thing.” Or, “Let’s aim to elect members of the most partisan fringe party we can think of, surely this is what is needed. We believe the three most experienced parties are all essentially the same establishment, and we can’t see the differences between them, therefore there are none.” This adds another layer to the progressive irony: “The System” apparently needs to change, but individuals don’t because clearly they have all the answers, correct opinions and a reasonable balance of information/perspective within their chosen team. Instead let’s just blame the currently trending target online – e.g. it’s the system, the establishment, the amorphous status quo, which I have nothing to do with, that’s the problem. Let’s fix democracy!

This seems like hypocrisy to me, blended with propaganda-fueled assertions, guided by the invisible hand of demagoguery. This attitude cannot be reconciled with a more truthful one since people are much easier to sway when you can get them rallied behind timeless misconceptions: “Change the system! Down with elites! Power to the people!” has a more straightforward appeal than does anything more remotely grounded in an accurate sense of reality.

This irony also has the undesirable effect of putting complaint at the centre of the discourse, although understandably so. Complaints quickly create connections between people who share them, uniting them in a common conception of whatever they are discussing, in this case how ‘the system’ is ordered – in all cases negatively and never in their (individual or even collective) interests. There can be no pleasing those whose default position is complaining unless you affirm them and join in, and there’s no educating those who turn their backs on pros so they can focus on the sensationalized cons — everyone loves a good narrative since they do not require hard thinking or confronting difficult dilemmas involving complex decisions. It’s a way of pretending that one has cut out the middleman and has arrived straight at the bare facts, when in reality that middleman has commandeered your thinking.

Furthermore, those who seek to gripe do so and have their behaviour positively reinforced and validated by everyone else invested in the discussion, thus perpetuating the real underlying issue. Easier to “like” something that appears in your network than to otherwise engage with it in a mature and nuanced way, and by doing so simply give some starry-eyed trooper out there the equivalent of a digital pat on the back. [Insert political Facebook status/sanctimonious rant here]: ‘Wow, people are “Liking” this! Clearly I’m on to something.’ Thus in public one shows an interest in politics merely by complaining about it, which is absurdly reinforced through a series of digital high-fives. The message is this: It is wrong not to care and the only way to care is to whinge and to spread the whinging. Combine this with celebrity demagoguery-types, snake-like politicians and the recipe becomes the longer the reach, the louder the whining and the more credibility one can achieve.

All of this creates a series of false, polarizing dichotomies which work to limit one’s understanding of how things operate on a practical, systemic level. Anyone with an appreciation for how religion works will understand the attitude, though evidently, atheists and those of a particularly scientific disposition are above all form of doctrinal thinking and so must be immune to bias; this attitude thanks to frequent media pieces reinforcing a worshiping science to a ridiculous degree (in this linked article the argument is that the legal system is flawed, whereas the scientific process is not, because it has taken up what is now outdated science, and should instead take up science merely because it is science – despite the fact that what is being criticized is only now considered ‘bad science’ having been taken up). Coming back to the point though, one need only make the slightest attempt towards sidestepping the dogma or the incessant whining and you will essentially be ostracized, taken as one of the enemy. Thinking independently of the in-group is simply not allowed.

A recent example. An opinionated Green party supporter raised the issue of corporate tax avoidance in the UK, high profile cases involving coffee shops and telecoms. By ‘raising the issue’ I mean they spoke to me in headlines and standardized political rhetoric. To this group, corporations and the wealthy are literally parasites, one of Natalie Bennett’s favourite terms for describing the role of business and wealth within an economy. “Conglomerates are dodging tax and the people are suffering,” I was informed. My reply was that this is a challenge of globalization, and, that in the interim, at least they are able to contribute in alternative ways e.g. by providing infrastructure, jobs and products even when they are not operating at a profit domestically. Bennett frequently confuses turnover for profit — nevermind the specifics of how turnover might be managed by a business, most Greens appear to be economically illiterate. Sure, companies are and should be liable to taxes (as well as to the many other costs which remain applicable) but simply piping up about how some structure themselves to be more tax-efficient is not entirely helpful, even damaging to the discourse, especially when using them as a scapegoat for the woes of the impoverished. This all too readily descends into a Monty Python-like witch hunt. Other populist orators such as Salmond, Brand and Farage have their own preferred witches which are hunted using strikingly similar rhetorical tactics: they all amount to clever turns of phrase which serve to create a distracting political spectacle, masking the serious and complex implications of the true substance.

I took the risk of going a step further and dealing with the other associated suggestion, big business stifles the little guys, by saying that in my experience the empirical evidence did not categorically support that. “Take a walk through a city centre, preferably a trendy district, and then try telling me that independent artisan coffee shops are struggling.” I was rebuffed by being told (amazingly) that it didn’t matter, Government should only do what is right and has nothing to do with laws. I’m not sure why a question of laws was thrown in there at the end, but it was probably done so as a means to distance my insights from the heart of the matter in a fit of anger/confusion. The neat, whimsical narrative had been disrupted – albeit only temporarily.

Further I was mocked for trying to explain that things were a little bit more complex than were otherwise being asserted. This was taken as though I were dismissing the problems as too complex and therefore not worthy of attention. How absurd! Though to be fair I was trying to show them it might not be worthy of their attention in such a dogmatic way, at least not before trying to comprehend the issues first. It’s one thing to want to improve things, quite another to do so through sheer ignorance and blindingly self-centred notions of morality. Thus I was cast a proponent of the status quo, whatever that might mean – although at the very least popular wisdom tells me it insultingly implies I somehow favour the abuse of power, corruption or any other self-reinforcing jingoism (status quo bad, moralized changes driven by demagoguery/propaganda good). And so any shred of hesitation in engaging in the verbal picketing of parasitic corporations like Starbucks or Vodafone for not having paid taxes on non-extant profits resulted in ridicule and being perceived as a member of the demagogue follower’s out-group.

As a result, from the binary-posed question of wrongdoing emerges the inevitably straightforward solution. According to the Green party’s policy statements, for example, the plan is to use the law to tax corporations and the wealthy in what amounts to a punitive fashion. This ignores the trend towards a globalized network economy which makes traditional tax measures unrealistic — this is the whole reason some multinationals find ways to avoid paying higher tax bills already! What would be needed is a rather more costly solution to go along with increasing tax: An international body dedicated to auditing and gathering financial reports from global corporate entities. The reality is that that sort of system would be less cost effective on the whole (we’re already short of money, hence the overwhelming need to go after the parasites of society, right?), and as it it would require significant international cooperation, may be somewhat inefficient at this time. A good number of their policies are regressive in this fashion, promising more than what is realistic and instead persuading their followers to march forwards by burying their heads in the sand as means to cope with difficult realities. Ironically enough, all this serves to perpetuate the types of oversimplified prejudices and stereotypes they themselves purport to be against. Everyone is equal until you form an organisation that grows to be distastefully large for Green Luddites — see e.g. their policy statement on corporations; no effort even made to determine how large is too large, they simply do not know and it near economically impossible to say, but no bother, evidence does not matter. It is patently unreasonable to adhere so militantly to positions based on pure ideology with little to no regard for the practical realities of the problem.

So: Why are we so dissatisfied with the current political order? Because the talking-heads and demagogues that dominate today’s media and social media have convinced us that we should be and therefore we have to be, unless you want to be ridiculed for having even a marginally more nuanced view. There are always societal issues demanding attention, but we need stop taking the easy road and consuming all of this worthless advice. Every party advocates change and progress, just to different degrees, in differently prioritized areas and with different levels of common sense experience. Change isn’t inherently good anymore than it is inherently bad. What’s more important is the ‘how’ and the ‘who’ that will be driving the change. Demagogic rhetors, however, stifle progress so that they can then claim nothing is developing.

Let’s try to inform ourselves properly the hard way by challenging our own beliefs before categorically dismissing all others through pre-determined semantics. Searching for binary right/wrong answers to complex problems on the internet, in other media or in the captivating lunacy propounded by fringe parties is not the way forward. If you don’t have the time or the energy to fully engage with your powers of rationality, that’s fine too — leave it to the professionals or intellectuals to hash out. Just don’t pretend like you have an accurate idea of what you’re claiming to know simply because you feel strongly about it and some hacks or groups of your equally deluded peers agree with you. We should be asking questions and offering tentative solutions — not propounding the vacuous dogmas we have been spoon fed.


For a good example of demagoguery in practice, a recent broadcast of Question Time featuring Nigel Farage and Russell Brand is quite illustrative.

Note the contrast in styles between Farage/Brand, particularly the volume of applause and type of engagement they stir up, compared to the more nuanced explanations and positions elaborated by the journalist and Labour/Conservative MPs. It’s quite easy to spot the ideological differences between the established parties, in fact it’s just as easy (ok, maybe not as easy) as it is to pretend differences don’t exist. Demagoguery 1, Democracy 0…

Bigotry: the left, the right, and the paradox of “the good” that comes from modern political participation

The Garden of Earthly Delights, Hieronymus Bosch

The Garden of Earthly Delights, Hieronymus Bosch (1503-1504)

If you want the truth to stand clear before you, never be for or against. The struggle between ‘for’ and ‘against’ is the mind’s worst disease – Sent-ts’an c700 CE

Not too long ago Scotland voted in a referendum on whether or not it should remain in the United Kingdom. The issue was widely engaging: In the end, there was something like an 85% electoral turnout compared to closer to 65% in the 2010 general election. Ultimately progressives on the left had their dreams disappointed by the 55/45 result in favour of the Union. Unionists, and especially Westminster, relatively on the right, released a sigh of relief in the face of a YouGov poll claiming a 51/49 shift in favour of secession a week before the vote, the Better Together campaign having apparently lost a 20-point lead. Campaigning on both sides in the last 6 months was no less boisterous and intense as would be expected from any other sort of political movement, but something about the Scottish referendum enticed an overwhelming majority of citizens from all over the world to participate. Surely this level of engagement and participation must be a social “good?”

There is of course nothing wrong with taking part. Suggesting that people should not take part or not have opinions is akin to suggesting they should not have the right to vote. Problems arise usually not through the simple act of taking part, but more frequently through the way such participation is exercised. In this context participation was exercised significantly through social media, perhaps in ways rather different from how it may have been in the past, but perhaps not. My focus, to be clear, however, is not simply the medium through which opinions were expressed but also in their manner. Though these two are related, so it makes little sense to consider one without the other.

Good begets evil more often than most would care to consider. Political participation crosses a line the moment it attracts bigots, and it will always attract bigotry – that’s just the way it works, maybe even the way it has to work. Reasoned impartiality in examining jingoistic issues is derided as opposition because “having or revealing an obstinate belief in the superiority of one’s own opinions and a prejudiced intolerance of the opinion of others” inherently necessitates knee-jerk moralization. Isaac Asimov is spot on when he writes that “[t]he strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that ‘my ignorance is just as good as your knowledge.'”

Perhaps bigotry stems from a combination of insecurity and immaturity as much as it might from general ignorance. It would of course be absurd to say that people should not participate because of any of this – people are to be allowed their personal, deeply-guarded existential beliefs. Societies, nor their constituent individuals, would be much of anything without the beliefs that help form their identities. But when one calmly approaches another in good faith as a means to engage in what will hopefully become a constructive discussion on a particular problem, rather than the primitive mud-slinging people seem so desperate to cling to, one would hope that prejudice and intolerance would subside. In reality, the core of what it means to be bigoted reinforces itself.

Not everyone I approached (or who approached me) in an attempt to facilitate a ‘media-free’ discussion on the issues of the referendum reacted this way. Nevertheless, it is quite apparent that popular ‘thinking’ or ‘debating’ does work this way. Posts quickly descend into what are essentially the online equivalent of a shouting contest, the loudest voice, or the voice with the most ‘friends’ in their network (which will statistically be able to garner more ‘likes’) will be seen as the ‘victor’ by most people (in at least that network and possibly onwards). Form over substance. The same is true for those who – perhaps correctly, at least from a populist perspective – think winning the debate involves being the one who produces the most incensed and longest rebuttal, which, given the way emotions work and the way Facebook formats comment threads, is not difficult to achieve. One only needs to have a cursory read through many of the discussions that took place throughout social media to appreciate these normative attitudes.

Most comments also tend to have a general incoherence about them which only helps to draw attention to how little most people know about the policy issues they claim to understand so well. “I googled it so now I am instantly informed of it – here’s the link to prove it.” (And Wikipedia is always neutral, right?) Worse still were those with advanced degrees, clearly bright minds in their respective fields, acting as though the fact that an advanced degree in a subject is enough to instantly comprehend the complex ideas elaborated by intellectuals in “lesser” scientific subjects (the unfortunate phenomenon known as scientism). Actual knowledge and true comprehension develop over time, not through blind reasoning informed by professional or subject-matter stereotypes, or through a puerile philosophical outlook which ranks knowledge according to its scientific merit. This also does not mean time perusing any number of partisan media sources, whose journalists write specifically for a highly generalized perspective (and which frequently reappear as Wikipedia footnotes). They can only provide, at best, half of the picture because this is how they sell papers. It’s why they exist: bias is their business. Their aim is to reduce and simplify in order to make it easier to sway an already complacent audience by parroting back to its readers the opinions they already hold/understand. Over-complicate matters beyond knee-jerk moralization and all that results is participant alienation and a consequent loss of market share. Liberating oneself from the tides of social/political conformity as fueled by politicians and the media is, however, no easy feat – in fact it may not be completely practicable or even desirable.

Again, I do not want to sound like I am pointing the finger at others for what they do or do not know, or comprehend. On the contrary, I readily empathize with this as there is much, much more that I do not know when stacked up against that which I do. The difference, and the issue, is in the self-righteous attitude towards those who clearly do have relevant knowledge to contribute on a matter, especially when that information may draw into question the reasoning that has otherwise occurred within a tetchy bubble of bias. Listening to, attempting to understand, and ultimately learning from others is a good thing perhaps because it is so difficult to do when compared to just talking at them. Realizing that those with legal backgrounds do not argue or question merely for the sake of it (popular/media characterization) and have spent years studying what the law is comprised of (rules + policy with insights from across the social sciences) might be a sensible first step. Realizing that working through the intricacies of a policy is a rather complex process and goes much further than simply generalized agreement/opinion based on, and shaped by, what politicians, the media, and half-baked philosophies have asserted, might be a sensible second. But obstinately refusing to show any signs of wisdom by ignoring the realities of what we don’t know and complaining incessantly of the world’s injustices in a ‘blame or be blamed’ fashion won’t help anyone – even if it will help broadcast your intentions on where you plan to mark ‘x’ on a piece of paper.

Granted, admitting to a lack of understanding is challenging for us all, particularly when we are so prone to deluding ourselves into believing in our own expertise. Paradoxically this sort of faith is part of what drives humanity to accomplish both great and terrible things. It is perhaps this attitude that led Bertrand Russell to remark that “[t]he whole problem with the world is that fools and fanatics are always so certain of themselves, and wiser people so full of doubts.” Either way, and regardless of a partial and partisan understanding at any given point in time, it is plain that the motivation behind someone’s political ideals is a moral one, which for this reason alone means it should be afforded some respect. But then so too should that of their opponents or even just their perceived opponents, especially if you’re touting the ‘progressive’ banner of equality. This is certainly a more preferable starting point than the blindly assertive attitude “If they’re not on our side, then they’re wrong.” Under the principle of equality there must be scope for a balancing act between independence of thought and being gently guided towards a more moderate, more cohesive (and less extreme) position.

Crowd or mob mentality may however render this level of compassionate cooperation next to impossible. Facilities like the internet might be making this worse, acting like an outgrowth of the conventional media with both only serving to fuel and reinforce popular attitudes. After all, it only takes one voice in a crowd to set off a chain reaction of impulsive agreement on a particular matter, whether online or off. Simply follow the chain of ‘shares’ or ‘likes,’ and you will quickly discover that those who spread/endorse certain ideas only do so because they agree with them at face value, particularly when bearing in mind the systemic lack of depth enforced by the way media work – a more polite way of saying that they see things through the same telescope pointed always at the same star, and, in mechanical knee-jerk fashion click buttons on Facebook. Or maybe this is just more of the same and not necessarily ‘better’ or ‘worse,’ like war but with new weapons – the modern way handing out pamphlets and badges. It certainly has a tendency to boil down to the same principles: Good v Evil, Us v Them, and KnowledgeIgnorance, all perpetuating a perhaps unavoidably bipolar battle for “the common good.”

Yet this is what politics, morality and law, their supposedly impartial relative, work in tandem for: herding (to put it crudely), and doing the best they can as shepherds seeking to satisfy as many as possible out of an infinite number of competing, practically mirror-image ideologies (to put it romantically). Not everyone is a bigot in the day-to-day, but something about political participation has a tendency to bring these sorts of attitudes to the fore. It makes sense for people to generalize and align themselves into political groups or teams, but we must remember that we are fundamentally the same, seeking rather similar ends, only through superficially or rhetorically different means. We only perceive ourselves superior because of how we choose to and because of how we are led to – Guardian and Telegraph readers, SNP and UKIP supporters alike. Progress, as well as the established order, are both equally vital, and, in the face of passive aggressive nationalistic rhetoric, the quietly steadfast voice of reason, in this case, ultimately prevailed. 


If you’re interested in finding out more about the intersection between law and politics, I can recommend the following books on justice, democracy and the rule of law:

Between Fear and Hope: Hybrid Thoughts on Public Values, by Martin Krygier; A Common Humanity: Thinking About Love and Truth and Justice, by Raimond Gaita (Guardian snippet here); and Law, Liberty and Morality, by H.L.A. Hart

For a more historical focus on the subject of legal theory above check out:

Minerva’s Owl: the Tradition of Western Political Thought, by Jeffrey Abrahamson and A Short History of Western Legal Theory, by J.M. Kelly. Both are exceptionally well written.

And for a splendidly accessible call for a more centrist approach to politics, consider Jonathan Haidt’s The Righteous Mind; New York Times review here.

For some reason the link under “media sources” doesn’t follow through. It’s a documentary on YouTube you can access from GB if you search ‘stupidity documentary’ in YouTube. The segment is 40min into the hour long video. It should be the first one that comes up.

The (Occasional) Absurdity of Stare Decisis in English Law

royal_courts_of_justice_london__england

Royal Courts of Justice, The Strand

Stare decisis is a fundamental principle of common law legal systems. Without this doctrine, there would be little to formally distinguish those systems based on English law and those more firmly rooted in Roman civil law in their modern post-Enlightenment codification form. The idea is simple yet the impact is profound: an institution, usually a High Court or above, makes a decision, and that decision must remain untouched until changed, modified or done away with altogether by another institution e.g. a court higher up the food chain, or Parliament – stare decisis et non quieta movere.  

With this comes certainty and flexibility, the two requisites for the efficient ordering of any legal system. Rules must be clear enough so as to be ascertainable while at the same time flexible enough to account for changes in the way actors within a society interact at any given point in time. Typically the changing tides are viewed as being firmly within the remit of Parliamentary politics and democratic decision making therein. This is a simplistic view which ignores the crucial role of the independent legal profession (lawyers, judges etc.) and the legal system in which they must operate, a system inextricably tied to the very courts that must interpret and apply the broad brushstrokes of what Parliamentarians have  hashed out – probably as a compromise and which they will never have to use to settle disputes themselves. This is the heart of the common law system: binding precedents that have been created through the direct (read ‘adversarial’) participation of members of the public as opposed to a typically more passive participative form of marking ballots and hoping for the best.

That the decisions or precedents become binding (literally as well as figuratively) is illustrative of the system seeking certainty. The issue of legal certainty is particularly challenging in the context of judicial decisions as the inductive reasoning and principles to be extrapolated from them are not always as straightforward as it is to say that under s.1(2)(c) of the Certainty Act 2014 such and such is the law/rule/norm. Nor is it necessarily clear what a Parliament meant by a provision, and even less so how that rule is to be applied in practice. There will always be room for interpretation and subsequently advancing such interpretations with a degree of advocacy. Still, when a decision to enact a Bill is made, this is intended to be the final word from Parliament, at least for the time being. Likewise with decisions of higher courts. Were there no element of rigidity in the system, these Acts, rules, and decisions would be meaningless.

It is also, however, challenging with regard to judicial attitudes. It is easier, and far less risky, to stick to established law than it is to radically or even marginally overhaul it through the court system. Judges are rarely mavericks and are probably among the most inclined to stick to the rules, especially in the lower courts where they pretty much have no other option but to administer settled law. At the higher end of the spectrum, there is significantly greater scope for interpretation of law. Indeed this is the raison d’etre of the Court of Appeal and the Supreme Court – they only deal with legal matters as opposed to matters of fact and law. This hierarchy helps keeps things clear and certain as well as maintain an appropriate degree of deference for the democratic process. Inevitably there remain problems, however. That the system is, to an extent, problematic isn’t just from the reticent attitudes of judges personally, rather it is doctrinally problematic in a systemic way. A High Court judge has no authority to overrule a Court of Appeal or Supreme Court decision and the case must make its way up through the senior courts. What I’m trying to point out is that this climb is only possible when the matter at hand is particularly important and those to whom it matters are capable and willing to keep fighting it. This can make for slow changes in an already slow moving industry, and it can also make change costly: a significant risk when there is never a guarantee of change.

The other important caveat is that many of these rules overlap, are founded upon existing principles (either by analogy or straight up extension) and essentially depend on one another for their continuing existence. Changing one may have the undesirable effect of rendering another logically inconsistent. The study and practice of law is very much a science in this regard: principles are clear and deducible until a new way of doing something is discovered, invented or is simply developed over time. It is a cohesive system designed by man so individual rules and policies cannot simply be looked at isolation. Making changes to the law is thus no easy feat, particularly for courts lacking in seniority/expertise, although it can just be a question of Parliament dictating that a change must be so and for the legal system to simply have to accept and work with it, sometimes for the better.

Where the matter has a long pedigree or is controversial, leaving it to Parliament is probably (and widely accepted as) the best way to go about changing it, at least in terms of more traditional democratic ideals, especially in the way these ideals are understood by the public. After all, the public voted for their fellow citizens to become MPs so surely those in the Commons know what they’re doing, took advice from the relevant commission and aren’t purely peddling an agenda?

Sometimes though it is for good reason that rules not be subject to abrupt, heavy-handed changes through legislation and are better left standing as common law precedents. This way they can instead be subjected to the adversarial tests in the courts through the tides of litigation, developing incrementally, organically and under less direct political-media campaign influence. They can then be subject to practical experimentation within society, in the real-world by those entrusted by the system to administer it, the profession dedicated to applying law and learned in it, rather than being constructs of a relatively more politicized leaning. This coupled with the expectation of Parliament as a law-making machine whose whole existence is predicated on it cranking out regulation leads to a potential imbalance in the state of affairs. The House of Commons should be (and is), in keeping with democratic principles, the supreme law-making body. But unbridled power in career politicians must have a counter-balance to keep it in check. It should be fairly obvious that just because 51% of people think something should be so does not necessarily make it just, or even workable. Luckily the Upper House of Parliament is unelected and so can help provide expert scrutiny during the legislative stages, although, since they are unelected they cannot veto much. The same more or less applies to the judiciary and legal profession, particularly their work in the higher courts.

So the matter may be left to Parliament in the hopes that there is time and priority for it on the respective parties’ agenda. Yet this is unlikely when the matter in question concerns legal technicalities rather than popular political issues. Or at least not until they [the legal technicalities] cross that frontier in any practical sense i.e. it becomes a live political issue that may affect a party’s credibility or in some way encroach on their perceived democratic law-making authority/role. Politicians are interested in marketing their party’s agenda, not in settling arguments between members of the public using the rules they, their predecessors or the legal profession have elaborated. Sometimes then it is necessary for the courts to at least try a different approach if anything just to get a reaction from Parliament (‘the people’), or to kick the donkey as it were. Again though, the only court likely to have this kind of political sway is the Supreme Court, or perhaps indirectly, and depending on who’s sitting, the Court of Appeal (see e.g. some of the history behind the judgements of Denning MR in the 20th century, a man very much ahead of his time and to whom the modern law owes a great deal).

This brings me to the case that incited this discussion, Pinnel’s Case [1602]. Pinnel’s case is interesting because it draws upon a number of the issues discussed above. The irony of its effect on English contract law is in certain ways remarkable, just as it is remarkable that someone sitting law exams in 2014 must be aware of a still-standing 17th century decision – stare decisis et non quieta movere indeed.

NB I may flesh this out in due course (i.e. next time I procrastinate for a contracts paper)