Law and Justice - and the power of the landless

[Malcolm Ramsay]

I tried posting this last week but it didn't reach the group so I'm trying 
again.

In a couple of recent posts, Foundations of social justice and Circulation of 
wealth,  I've argued that significant progress towards social justice will only  
come about through establishing a parallel society, with a long-term  goal of 
providing new foundations for the system we live in; and that  this society 
should be based on surrendering certain 'selfish' rights  (principally the right 
to bequeath to our descendants more than they  could reasonably claim as their 
'fair share') in a way which would, over  a long period, bring land under a 
fairer set of laws. That's not, in  itself, a strategy which is likely to 
directly bring any noticeable  advantage to the current  generation, but I 
believe there might be indirect benefits which could  lead to fairly rapid 
change. To see how, it's necessary to look at why  change is so hard to bring 
about.

For all its faults our existing  system has progressed enormously over the 
centuries - but in doing so  it has largely neutralised the forces that drove 
that progress. When  inequality was so great that huge numbers of people were 
prepared to  agitate for reform, there was no possibility for the political 
classes  to avoid it - if they hadn't made concessions, they ran the risk of the  
system being swept away. But the concessions which have been made in the  past 
have changed the dynamics; there's no longer a grossly  disadvantaged majority 
who cannot be ignored - the majority now are  probably more fearful (wrongly) of 
losing what they have, than hopeful  of gaining from reform - and the truly 
dispossessed have shrunk to a  proportion where their grievances get lost among 
the less  serious complaints of the majority.

In a political system which  elevates the will of the majority above all else - 
but provides no means  of representing depth of feeling - incremental reform 
through political  means, of anything which is central to the social structure, 
becomes  harder and harder with every advance. At every step you need the 
support  of over 300 MPs whose main concern is not justice, but power - and  
whose position is dependent on a mass of constituents who are mostly too  
focused on their own concerns to appreciate the benefits of fundamental  reform. 
In a culture which has self-interest at its heart, it doesn't  need any 
wickedness or manipulation for reform to be blocked, it happens  just through 
inertia. When a problem which needs addressing, like  inherited wealth, is so 
deeply embedded that people think of it as part  of the natural order, reform is 
permanently side-lined because  Parliament always has more immediate issues to 
deal  with.

But Parliament is not the only power in our system -  there's also the 
judiciary. Unlike politicians, judges come to their  position through a route 
which requires them (in principle at least) to  set aside self-interest, and 
they spend their working lives in a culture  which (in principle at least) 
encourages them to recognise and  acknowledge injustice even if they're unable 
to prevent it, a culture  which prides itself on historical developments which 
have established  constraints on the wilful exercise of power by government. And 
to bring  about change through the courts, it's not necessary to persuade 300 of  
them that it's in their interests, it's only necessary to persuade a  small 
number of them that the current situation is contrary to law.

And  there's the rub - it's not enough to argue that it's unjust, it's  
necessary to show that it's unlawful. There's a good reason for that,  however, 
because justice depends on law; without law,  there are no rights we can claim, 
because without law there can be no  authority to enforce them; without law, 
there's only might. So in every  case they hear, the courts must consider how 
their judgement fits into  the body of law. If justice and law are in conflict, 
they have no  discretion simply to disregard the law - they must either identify 
some  specific point of law as being wrong (in which case they may - perhaps -  
be able to change it), or they must make a ruling which ignores  justice.

So if a group of squatters occupy somewhere, and argue  in court that they have 
a natural right to land, the judge might well  agree that, in justice, they 
should be allowed to stay. But unless they  can point to some specific perverse 
feature of the law which, if it were  changed would give them a better claim to 
that land than the existing  owner, then he has no option but to rule against 
them; because to do  anything else would throw into question every land  title 
in the whole country. As far as the courts are concerned it's  more important 
that the law should be certain than that it should be  just, because without 
certainty about the law - and the confidence which  comes from it - much of the 
activity which people value simply wouldn't  take place. Unless we can identify 
precisely what is wrong with the  law, and propose a specific change which would 
put it right, we're stuck  with what we've got.

Even then, the courts would quite likely  not be able to make that change. Under 
our existing constitution, they  can change the common law, which has built up 
as a result of centuries  of court judgements, but they have no power to change 
statute law, which  results from Acts of Parliament. In principle Parliament can 
make  whatever laws it likes - it has no check on it, beyond the power of the  
electorate, once every four or five years, to change the individuals  sitting in 
it - and once some injustice becomes  embedded in law, Parliament can ignore it 
unless its victims can  persuade large numbers of people to protest about it. 
The courts can  neither overturn bad laws, nor compel Parliament to revise them.

So  what would the Supreme Court do if it believed that a statute violates a  
fundamental right? The principle of Parliamentary sovereignty is a  major 
feature of the British constitution, though there does seem to be  some 
disagreement among legal authorities about how absolute it is; some  senior 
judges clearly regard Parliament as being subject to an  undefined higher 
principle, the Rule of Law, because otherwise it  depends ultimately on the 
threat of a public uprising to keep it honest;  others clearly believe that the 
court must accept as law everything  that Parliament enacts, because to do 
otherwise would make the judges  the ultimate authority. But there's no 
disagreement that the present  position is fundamentally flawed and that it 
holds real  potential for conflict between Parliament and the judiciary.

This  is where the opportunity lies for a new society to empower demands for  
reform. The judges, quite rightly, fear their own power; they fear that  
stepping outside the existing constitution means stepping outside the  
boundaries of Law - if they have only their own consciences to restrain  them 
where will it lead? But at the same time they recognise that the  existing 
system is unbalanced and that current political processes give  Parliament power 
to violate the standards we profess to live by. 


They  are afraid of stepping outside the existing constitution, not because  
they have an unqualified attachment to the current system (they have,  after 
all, effectively modified it many times over the centuries) but  because they 
would be detaching themselves from any source of law. If  there were an 
alternative constitution for them to step into, however,  the dynamics of the 
dilemma change; at  present they face a choice between enforcing something they 
believe is  wrong or taking on powers they believe they shouldn't have; instead 
they  would face a choice between enforcing something they believe is wrong  or 
recognising an alternative source of authority. That would take the  issue out 
of the sphere of law and into the sphere of politics, allowing  them to decline 
to give a judgement - which would in turn force  Parliament to confront the 
issue.

As individuals we can't offer  them that possibility - but as members of a 
society, even quite a small  society, we can. It could only happen through a 
court case, on an issue  where the law is manifestly unjust; and it would be 
necessary both to  clearly identify a point of law which was at the root of that 
injustice,  and to offer a coherent alternative which could be adopted without  
undue disruption. In addition to that, the members of the society would  need to 
have bound themselves to a system which  clearly defines the limits of 
government, but which recognises both its  necessity and its complexity, one 
which avoids the most obvious flaws  of the existing system, but which is close 
enough to it in form that the  two can be easily reconciled - a system, in other 
words, which the  judges could regard as a credible source of law.

Land law is an  area where the current system is manifestly unjust - which has 
been  manifestly unjust for so long, that it can't reasonably be argued that  
reform can be brought about through existing political processes. But  there is 
a relatively simple change in the law (which I mentioned in  this group a few 
weeks ago) which could dissolve the current monopoly of  the landowning classes 
without requiring any drastic, sudden changes;  all that would be needed 
initially would be a ruling that the power to  designate the new owner of land 
(when the previous one dies) is a  responsibility which the state delegates to 
the  landowner (which should therefore be exercised in the public interest),  
rather than a right which he can use to transmit wealth to his  offspring.

That change of perspective, if it were accepted as  law, would open the way for 
challenges to large bequests of land, but it  would not, of itself, cause any 
redistribution. In the absence of a  challenge, land would still go to whoever 
the landowner nominated - and  the onus would be on the landless to make that 
challenge. This has the  advantage that it would allow rules to be developed on 
a case by case  basis (the way most law was developed originally) which 
by-passes a  serious barrier to reform - the sheer complexity of creating 
equitable  rules for redistribution through statute makes the problem so 
daunting  that even those legislators who would like to tackle it simply don't  
know how to begin. 


In order to bring a case to court, the  society would have to establish some 
rules about who could mount  a challenge, and under what circumstances - and 
those rules would have  to respect existing laws for the courts to agree to hear 
it. In  practice, bringing these arguments to court would probably involve some  
landless members of the society squatting on land whose previous owner  has 
recently died, and invoking human rights legislation to claim legal  title to 
it. (This would involve overcoming another legal barrier, to  make the step from 
recognition of a general human right to land, to  establishing a specific right 
to the piece of land in question, but I  believe that can be achieved with a 
relatively simple bit of reasoning -  however, I'm going to leave that for 
another post.)

I can't say  how the Supreme Court would respond in practice to the situation 
I've  just outlined, but they're clearly dissatisfied with the constitution as  
it stands today, and are very unwilling to enforce laws which are  manifestly 
unjust. It's possible that the changes I  envisage do in fact lie within the 
court's power, because land law was  largely judge-made (i.e. it evolved over 
the centuries through case  law), in which case they would be able to make the 
rulings we need, and  create valid legal titles for the squatters. However the 
case law has  been 'tidied up' by parliamentary legislation, and if that 
legislation  explicitly treats the landowner's power to bequeath land as a 
right,  then the courts would be unable to treat it as a responsibility  
delegated to him by the state - even if they recognise (as I'm sure they  will) 
that that view is more consistent with natural law. 


I  don't think there's any possibility, in that case, that they would  simply 
adopt the laws of the new society (so, in the situation above,  they couldn't 
rule that the squatters had a valid title to the land) but  if they can treat it 
as a political rather than a legal issue then they  can decline to give a ruling 
(which would mean that no  eviction order would be issued). Parliament would 
then be obliged to  either reinforce the existing unjust law (which would risk 
open conflict  with the courts) or properly address the whole issue of 
inheritance. In  a society with an incoherent constitution centred on an 
impotent  hereditary monarch, that debate will open the whole system to radical  
change. If there's a coherent alternative ready and waiting - and  driving the 
debate - the enemies of reform will have no solid ground to  fight from.

As individuals we have no power to make law the  servant of justice ... but as 
members of a properly constituted society  we might. 


Malcolm Ramsay


      
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