Peter A. Bell responded to my “most dreadful, ill-thought, emotive, reactionary nonsense” on the arrest in Scotland of Clara Ponsati by writing that the law is “the codification of society’s mores and principles” and that my suggestion that Police Scotland refuse to obey the order to arrest would have the force “serve the politics of the mob.” Naturally I am going to say that Peter is wrong, but I believe my response merits this brief article.
His opening appraisal, the “most dreadful, ill-thought, emotive, reactionary nonsense” comment, may sting, but in itself it is only rhetoric. For the sake of peace we’ll skip over this to his definition of the law and his summary of what it is he imagines I said.
Rather naïvely Peter assumes the law to be the written text of civilisation’s better angels, or – as he puts it – “the codification of society’s mores and principles.” Here he touches on what the child is taught to think of the policeman and the law, that they are universally good and wholesome. It lacks completely any normal and healthy hermeneutic of suspicion that comes with the reality of the law, its place in society, and the purposes it always and everywhere serves.
Almost by definition, following Foucault’s analysis, the law is the narrative of power relations as told by the powerful and from their point of view. Sandra Caruba explains this better when she considers the treatment of the powerless by the law:
The fact that law tends to omit the perspective of weak and subordinate actors, the ways in which it does so, and the consequences of this omission have been well explored and documented by deconstructionists and critical legal studies scholars of all stripes…
In reality the law, rather than codifying society’s mores and principles, lays out the assumptions and ordinances of the ruling élite, and it is by these codifications it rules. This law bears no more resemblance to the cultural morals of wider society than it hopes to shape these into the image and likeness of those of the dominant class.
It is for precisely this reason that I hold to the theological and philosophical principle, à la Aquinas and Kant, that individual conscience – or the informed conscience – is to be preferred to the dumb and uncritical, slavish, adherence to the law. This is not to say, as Peter Bell appears to insist, that I am against the idea of abiding by the law. This is not a case of either-or, but both-and; we can and should obey just laws, but – given the hierarchy of importance hereinabove stressed – we are morally obliged to disobey unjust laws.
“But the most foolish thing about this whole rant,” he says, “is that, while insisting on the supremacy of freedom and justice, it demands that we should discard the means by which we prove [and] maintain the supremacy of freedom and justice.” This would lead me to believe that Peter and I are simply operating on two different and mutually exclusive understandings of the law.
If the law is in fact his naïve code from the benevolent goddess Iustitia, then it can and must prove, maintain, and safeguard our freedom and the divine concept of Justice itself. I do not accept this at all, however. Law is, as he says, “always a work in progress;” it is the creation of human society – and, more precisely, it is a creation of and for those at the top of human society. As such a construct of power it reflects the concerns and priorities of power and those in power – over and against everyone else.
Natural law and justice have no need of any written codification. These, I would argue, are the true codifications of society’s mores and principles. The informed human conscience has no need of a judge or a court to understand this more essential law. Again, this is not to say that we do not require judges and a legal system. It is simply a statement of what even the court recognises; that an awareness of natural justice is presupposed by the formal legal process qua the narrative of state power – a fundamentally political thing regardless of any separation of powers.
So no, I do not suggest that the police serve the politics of the mob. What I do suggest is that it must not serve the politics of the state through the guise of the court – or the law. To reduce natural law, justice, reason, and the informed conscience to “the politics of the mob” is nonsensical in the extreme. The mob, as we understand the term, is the absolute antithesis of reason and conscience – let alone natural law and justice. If anything this remark was an unnecessary diversion.
Of course, and as I have said, Peter may well be operating under a different understanding of the law than I am, but his conclusion that my understanding of this and how I have expressed it is nothing but “dreadful, ill-thought, emotive, reactionary nonsense” is something of an overstatement. I may be wrong, but – if this is the case – in my error this is something I have thought through.