Foundations of social justice

Malcolm Ramsay malcolm.ramsay at
Tue Dec 21 22:15:56 GMT 2010

In a comment to one of James Armstrong's posts (69p to £1.29 flour price hike) I 
said "we've reached a stage where truly effective reform will only come about 
through metamorphosis, through a new society being established in a form which 
can grow (without directly challenging the existing system) until it makes the 
existing political structures redundant". I've decided to expand on that, 
following a comment from Chris Morton (whose response didn't go to the group): 
"The idea of developing a parallel 'new society' is one I share, although I 
can't help noticing that whenever an alternative organisation or movement gets 
to a size that minimally threatens its conventional counterparts, the latter are 
extremely adept at confusing issues, diverting and derailing."

I think a major reason for this is that alternative societies usually aim to 
replace the superstructure of society rather than its foundations, and therefore 
create structures of their own which are inconsistent with existing systems - 
that makes it easy for defenders of the status quo to attack them. As I see it, 
the injustices and inequalities people suffer under are generally unintended 
consequences of legal and economic processes which are inadequate, but which 
have, in many cases, been developed for good reasons. It's not enough for an 
alternative society to make rules to avoid those ill effects without considering 
how they came about, because those rules will almost certainly conflict with the 
underlying processes which created the problem.

My feeling is that the bulk of what has been developed over the centuries is 
inherently sound, but it creates injustice because the foundations are flawed - 
they were laid down, after all, at a time when half the population were serfs, 
and maintaining that social division was part of their purpose. However there 
are a small number of changes which could make a huge difference (and which are 
very difficult for anyone to argue against) but which would be almost impossible 
to implement in the existing society because so much rests on the things which 
need changing. As far as I can see, what has to happen is the creation of new 
foundations - ones which are consistent with the existing legal, economic and 
social infrastructure - which would allow change to be implemented over a period 
of many years.

Radical reformers often seem to vary between two extremes: on the one hand 
proposing major changes to existing laws which have no chance at all of ever 
being considered by anyone with any power; and on the other hand rejecting the 
existing system in its entirety and trying to envisage alternative societies to 
be built from scratch. But unless there's a possibility of a new society being 
integrated with what is already here, the best it can hope for is to occupy an 
isolated niche - if it grows to any size it's bound to provoke opposition. My 
goal has been to try and combine those two approaches, by identifying a very 
small number of critical changes which have the potential to transform our 
existing system .... with the aim of basing an alternative society on those 
changes, which would ultimately merge with the existing system. 

One thing which is worth understanding about the existing system is that, at the 
constitutional level, there are no laws about how we live, there are only laws 
about how we make and change laws - that gives the system enormous flexibility 
and resilience. It's significance in this context is that it relieves reformers 
of a huge burden; we don't have to work out in advance all the laws that a 
mature society would operate by, all we need to do is identify the fundamental 
constitutional flaws which prevent our political processes from working properly 
- because if we can correct those flaws everything else will come right (slowly) 
through the normal processes.

There are only a handful of changes which I see as being necessary. The most 
important is the one I mentioned in my comment to James's post; a mechanism 
whereby the public can spontaneously initiate a change in government - or, 
rather, multiple mechanisms working on different branches of government, through 
different methods. The concept of the three estates (executive, judiciary and 
parliament) seems to me to be sound, but in our current system the necessary 
separation between executive and parliament has been lost, compromising the 
functions of both. And the integrity of the judiciary has been undermined by 
their need to defer to parliament .... which is made necessary by the weakness 
of the sovereign .... which in turn is made necessary (paradoxically) by the 
sovereign's strength.

That needs a bit of explaining. Our system developed around a strong centre, and 
to work properly it needs that strong centre; to maintain the proper separation 
between the three estates while providing a point where their differences can be 
resolved. But in the absence of a (peaceful) mechanism for challenging the 
sovereign, that concentration of power made the monarch too strong - which 
obliged the other branches of government to disempower it. In a sense the system 
had to turn in on itself in order to prevent malign dictatorship, but in doing 
so it transferred the guardianship of power to Parliament. That made both the 
Executive and the Judiciary subordinate to Parliament .... but because 
Parliament has no natural capability to exercise power it has, in a sense, been 
captured by the Executive. And because it has no natural capability to legislate 
coherently, the Judiciary is left without any final arbiter to turn to, but is 
bound to enforce whatever laws are produced by the nexus of Parliament and 
Executive, even when those laws are clearly unjust.

A robust mechanism for challenging the sovereign would change that, because it 
would re-empower the monarchy. I expect many people in this group will find that 
a very strange idea - most, I imagine, see the monarchy as part of the problem - 
but a monarch who can be removed by a spontaneous public rejection would be 
accountable to the public in a way that no-one is in our current system. It is 
the mechanism for initiating the change which is of principal importance; the 
process for choosing the new monarch (while still important) is much less 
critical because the people doing the choosing will want someone who will not be 

That mechanism for initiating change already exists, in embryo, in the jury 
system. The essential function of jurors is to act as witnesses to the exercise 
of power - by complying in the trial they confirm the public's acceptance of 
authority. And in principle they have the power to withhold that confirmation by 
insisting that the court demonstrate the source of its authority. It would be a 
simple matter to use that as the basis of a challenge to the crown; if, say, a 
dozen different juries refused to acknowledge the courts' authority, all within 
a short period of time, that could trigger a hearing in front of a 
constitutional jury, which could in turn trigger a referendum on dismissing the 
current sovereign.

The same rhythms that operate in individuals are at work in the collective; 
there are times for development, times for consolidation, and times for 
re-structuring - and that should be reflected in the processes of government. In 
a mature system a strong centre would be complemented by a well-rooted periphery 
- ideally each of the three estates of government would have its own links to 
the public, each incorporating some means whereby change can be initiated 
spontaneously (with damping mechanisms to prevent it happening too lightly) - 
which would allow the balance of power to shift from time to time between the 
different branches of government. 

On the political level, that just about summarises the handful of changes which 
I see as being necessary: the establishment of a mechanism for dismissing the 
sovereign and the establishment of clear lines of accountability for all three 
branches of government. The only other major change would be the transfer of 
legislative functions from Parliament (whose proper function, to my mind, is 
simply discovering and expressing the will of the people) to a smaller body 
answerable to all three branches (in a mature society, making and changing laws 
would be comparatively rare - as I see it most of the legislative activity that 
goes on currently is necessitated by the fundamental flaws). 

There are also some less significant changes which I think would be worth 
incorporating into a new society - for example, splitting Parliament into left 
and right houses instead of upper and lower - but they are things which don't 
act as institutional blocks to progress. 

How the executive should be made directly accountable poses some interesting 
questions, but I'm going to leave that for another time - this is getting a bit 
long, so I'm going to split what I want to say over a number of posts. 

As well as political barriers to meaningful progress there are of course also 
economic ones, so I intend to post something on the circulation of wealth, and 
the possibilty of economic reform through a path which I don't think has yet 
been tried. I also intend to post something on the relationship between law and 
justice, and the constraints the courts operate under. As things stand I don't 
see much chance of significant change coming about through Parliament, nor 
through moral pressure on government, but I think there is a possibilty of real 
progress through the courts. They currently operate without any solid moral 
basis and that undermines everything they do; if reformers can offer them 
foundations consistent with social justice, I believe it would open the door to 
major changes. 

Malcolm Ramsay

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