In the recent Australian election campaign, one of the issues run by the left-leaning parties (whatever “left” means nowadays) was the establishment of a corruption commission for federal government. In recent years, corruption commissions at the state level have been in the headlines numerous times, even claiming the scalp of the former NSW Premier but not her Victorian counterpart even though he’s been hauled in front of our state’s commission three times and counting. I suppose this could be seen as evidence that the commissions are doing their job. But much like the legal system doesn’t create justice and the health system doesn’t create health, a corruption commission doesn’t create honesty and decency in politics. In fact, it may just lead to the opposite outcome.
As it happens, the Westminster system of government used to have a perfectly good mechanism for dealing with corruption and it’s only in the last few decades that this system has disappeared. As far as I can tell, it’s the absence of that mechanism that’s at least partly driving the perceived increase in corruption, so it’s worth describing what changed.
The way the system used to work in Australia was that it was not enough for a politician to be above board, they had to be seen to be above board and if they were not seen to be above board, they had to resign irrespective of whether they were actually innocent or guilty. In those times, there was a functioning news media acting as the fourth estate. Journalists would delight in claiming a big scalp by finding a politician doing something they shouldn’t be doing. For example, the Minister for Defence might be caught having lunch with the CEO of a company that had tendered for a government defence project. The lunch might be completely innocent and the Minister might have a perfectly good excuse why he or she was there. Doesn’t matter. They had not fulfilled their responsibility to be seen to be above board and they had to resign.
The usual rhythm of such matters was that there would be a front page news article on day one: Defence Minister Caught in Dodgy Dinner Date. The Minister would give a short statement denying any impropriety which bought some time to consult with the party. On day two or three at the latest, a press conference would be called where the Minister would vehemently maintain their innocence but announce their resignation on the basis that thems the rules.
This was an honour system. There was nothing codified in law. It was just the way things were done. No doubt the system saw a number of promising and completely innocent politicians have to resign from their positions over a trifling mistake. But the beauty of it was that it allowed the politician a gracious exit. They got to maintain their innocence while also upholding their honour. Meanwhile, they also re-affirmed the integrity of the system in the eyes of the public. Because the bar was set so high, it meant there was a substantial cost on any actual corruption and any actual corruption was nipped in the bud easily. It even made capitalist media owners happy by increasing sales of newspapers giving them an incentive to fund real investigative journalism.
I don’t remember a specific case where the old honour system stopped working. I guess it was some time in the late 90s when standards began to slip. Politicians still maintained their innocence just as they always had. But now they dug their heels in and demanded that evidence be shown why they were actually guilty. Investigations would need to be held. But investigations are time consuming and costly. There are a hundred and one excuses available to a politician who wants to hold on to their job and just as it take ten times more energy to refute bullshit than to create it, it’s far harder to prove an excuse wrong than to make it up in the first place. It doesn’t help that politicians are experts at lying, prevaricating and obfuscating. Even a highly skilled lawyer has their work cut out for them.
Investigations also air all kinds of dirty laundry that would be better not to make public and this has the side effect of reducing overall trust in the system. The recent investigation into the New South Wales Premier was a particularly grubby business and it would have been better for all concerned to have avoided it. Meanwhile in Victoria in late 2020, we had the ridiculous spectacle of the entire government insisting that nobody could “recall” who made a crucial decision that led to Melbourne’s corona lockdown. In essence, the government tried to save its skin by arguing that it was incompetent rather than corrupt. This brings the whole system of government into disrepute. All of this could have been avoided if the old honour system was adhered to. Somebody would have resigned immediately and the matter would have been over.
If we stand back and compare the old honour system against the law-based system of corruption commissions, one of the main things that stands out is the collateral damage caused by the latter. In the honour based system, a politician might lose their job unfairly but they retain their honour and, unless the matter was really serious, they stay in parliament and can rise through the ranks again later if they play their cards right. All in all, it’s a minor inconvenience. But the collateral damage of the law-based system is huge. It tends to bring the whole system into disrepute while also embarrassing and ruining the reputations of individual politicians.
I have mentioned in previous posts our culture’s peculiar blind faith in the law and the amounts of money (collateral damage) that get wasted pursuing matters through courts that really should be resolved informally. This enthusiasm for law takes other, more bizarre, forms too.
Once upon a time, I used to cycle to work in inner city Melbourne. On one particularly memorable morning bike ride, I found myself fourth in line of a group of cyclists waiting at a red traffic light. We were in the bike lane and there were two lanes on either side of the road with another four lane road running perpendicular creating a large intersection. The light in front of us turned green while a car, which must have run the red light, was about halfway through the intersection driving from our right to left. The cyclist at the head of the queue had seen the car. In fact, he was looking straight at it. Nevertheless, he decided to ride directly in front of it causing the driver of the car to break heavily and come to screeching stop only metres from the cyclist who proceeded to scream at the driver about running a red light. In the meantime, the car was blocking two lanes of traffic and the other car drivers began beeping their horns.
The cyclist could have waited two seconds for the car to pass and everything would have proceeded fine. Instead, he decided to quite literally risk his own life in order to make a point about the law being broken. If you get run over by a car while riding a bicycle, the fact that the driver was breaking the law at the time is going to be little consolation to you and your loved ones. You’ll be dead and the driver will probably go to jail for killing you. Everybody loses. To willingly risk such an outcome just to prove a point about the law being broken is, to put it mildly, rather strange. But this is our attitude to law in modern western culture. I have cycled in India and China. In the former there are no road rules and in the latter the rules are nothing more than guidelines. There is no road rage in those countries. At least, none that I saw.
Trying to solve problems via law is often a cover for the real problem. Why was the driver running the red light? Because traffic in Melbourne had become severely congested due to infrastructure not keeping pace with population growth. That led to frustration on the road and more red lights being run. Changing a law or enforcing the laws more diligently does not solve that underlying problem. Similarly, here in Victoria, the government recently announced they were building a “mental health system from the ground up” and it was going to be the best damn mental health system money could buy. Why are there so many people struggling with mental health in the state of Victoria? Could it have something to do with us having had the longest lockdowns in the world? Maybe we shouldn’t have done that. Similarly, why were almost all the people dying “with corona” those who had co-morbidities? Did anybody bother to investigate the cause of those co-morbidities? Maybe if we reduced the number of people with co-morbidities, we’d reduce the number of deaths.
All of this requires a systems-based approach to tackling problems and not a law-based approach. But our blind faith in law, and by extension reason, has always been predicated on a massive overestimation of its powers while discounting all the subconscious, automatic and tacit functions that happen in the background which keep systems healthy and in balance. Interventions in systems often have the side effect of weakening or even destroying those tacit and unseen factors. It’s for that reason that large-scale interventions should be avoided unless absolutely necessary. The trouble is that it takes time, patience and care to build up our knowledge of systems and tinker around to find what really works. The temptation is always to go for the big bang approach of initiatives that involve billions of dollars to hire a team of experts to roll the dice on the latest technological whizz bang solutions.
Such interventions always have side effects and the bigger the intervention the bigger the side effect until eventually the interventions become so huge that the collateral damage they cause is more dangerous than the underlying problem. That’s exactly where we are in many different domains of modern society.
Winston Churchill once said you can rely on Americans to do the right thing once they had tried every other option. But that seems to be an accurate description for all of the West these days. It’s not until we’ve tried every “rational” option and had them all fail that we will reset. In the process we might come to realise how many things work in spite of, and not because of, the law and perhaps we’ll re-learn the limits of reason.
One major issue I see is that the law has come to be the only thing a lot of people use to restrict behaviour. I know a lot of people who are scrupulous about following the law, who will happily steal from people when the law allows it. The problem with the law is that it has to be a blunt instrument, and sometimes you need other tools, but those all require willingness to abide by some sort of honour system.
Since a lot of people view the only restriction on behaviour as the law, those kinds of things no longer work, and the law has had to pick up a lot of slack, where even just twenty years ago people would have considered it insane.
Liam – interesting. Stealing because the law allows it seems to imply a complete absence of conscience. To put it another way, it’s the absence of any internal standards. Doing the right thing because it’s right rather than because the law told you to. There’s diminishing returns to the law just like everything else. I recall hearing recently that there’s a two year wait on court cases here in Victoria. The more laws, the more court cases and the more things grind to a halt.
This is interesting, Simon – so I wasn’t just imagining that corruption has gotten worse? One logical extension of this increasing reliance on reason or left-brain solutions (e.g., more & more laws, algorithms) – at the expense of, well, sanity – seems to me to be the prospect of self-driving cars, problems w/ which have already incurred quite a few lawsuits. 😉
Could road rage be an indulgence enabled by the luxury of roads not busy enough to distract drivers from playing video games or checking messages? Anger is a common response to shock, or unexpected transgressions, but if you need to run on adrenaline to stay alive in crazy traffic (thinking of what I saw in SE Asia), you’re in a state of alertness & attentiveness all the time.
Shane – from my experience in India, the adrenaline part goes away once you get used to it. It took me about 5 minutes just to get the courage just to cross a one lane road the first time because there was no gap in the traffic at all and so you have to walk in front of it knowing that if the people don’t move they will hit you. But of course the people will move or brake or do whatever to miss you. So, there’s this interesting element of trust in the whole thing too. But, you’re right. You do have to be more alert in general. Which sounds like a good thing to me. Rules tend to be dreadfully boring.
Hi Simon,
Years ago I came across a description of the legal system which suggested that: The legal system is an administrative system, which seeks to administer itself. An interesting insight.
And that beast is super expensive too. Far out, a couple of decades ago I had to chase a debt, and after getting the bill from the barrister, I dropped the whole thing and wrote the debt off as a loss and chalked the whole thing up to one of life’s little lessons. As far as I can understand things, there is a conflict of interest inherent within the system itself and that appears to me to be a possible disincentive to wrap up cases expediently. That’s sort of an inherent issue with time-fee based work when the clients aren’t regular, and so you have to make the most from each client that comes along, because who knows what the next job will be. Are there incentives to get cases resolved quickly? Beats me.
As to the other issue you raised about the health subject which dare not be named, I too wonder about that. It is possible that the job will be done by historians in the future.
Cheers
Chris
Chris – at the solicitor’s office where I used to work they would bill in 6 minute increments. Which doesn’t make much sense because legal work, like most professional work, is mostly a thinking activity and you simply don’t know how long it will take for the right idea to come along i.e. “oh shit, I need to look up Watkins vs The Queen 1934”. But, yeah, the client can’t validate how much time was actually spent. The main disincentive for the lawyer to keep the bill reasonable is that there are review tribunals the client can appeal to which will waste the lawyer’s time if they get dragged before them. Given how much money lawyers make, that can be very expensive.
@shane, since you mentioned right/left brain i can’t help but pull out this iain McGilchrist interview. You might have seen it, but maybe others here have not.
https://www.youtube.com/watch?v=TNB_1ML_MVE
not specifically about the right/left brain, but an interesting take on wtf is going on.
“Rules tend to be dreadfully boring.”
I think this needs qualification.
Take a chess board and all the necessary pieces just remove all the rules and move the pieces at random. You end up with something that is not very interesting.
Add too many and nonsensical rules and the outcome will be just as boring.
If you have the right rules, you have a game.
The problem in the west are not the rules as such, but their stupidity and overreach. We are basically in a chess game, where it is against the rules to move almost any piece.
Thing is, rules are very similar to limits. The myth we run society on proclaims amongst other things that limits are evil and must be abolished. Another thing the myth values is control. So rules must be imposed to an extent maybe never before seen in history.
Not sure what to make of this.
Roland – that’s a really interesting point. So, we have a culture that doesn’t accept limits but we also love rules. Rather than allow limits to manifest organically, we’re going to institute rules as proxy limits. This will all be done in the name of “science” because, as we have seen in the last two years, people will accept seemingly any rules no matter how ridiculous as long as they are based in “science”.
Excellent and interesting piece. However, I wonder if there isn’t a conflation between law and reason here? To my mind, they are not the same thing. Law exists, as Aristotle noted, where friendship (or reciprocity) ends. It is the other side of the gift economy and presumes a conflict of interest whose terminal point is the “zero sum game”, ideally resolved through law (before it turns to war). Reason, in contrast, is an intellectual method oriented to the paring away of all superstition and spirit, all subjectivity and bias, all context and culture. While it is consonant with law, insofar as it reduces everything to its constituent parts, and analyses from first principals, surely they are not the same? One seems to be the theory and the other the practice. OR, am I over thinking this?
PS I like the distinction between honour and law. There is also the option of “dignity culture” which combines and transcends honour through the successful application of law. I think this is the sweet spot before victimhood takes hold. https://en.wikipedia.org/wiki/The_Rise_of_Victimhood_Culture
Petra – I think the people who write the laws would say they are using reason to do so. Modern laws are highly analytical and often painstakingly detailed. Of course, as we saw during corona, you can have highly complex, analytical and detailed laws that are also complete nonsense and should have been an affront to reason.
The dignity culture idea is interesting. That matches to my archetypal analysis of the transition from Warrior culture (honour) to Orphan culture which happened after WW2. Of course, we are now in the decadent phase of dignity culture where there are far too many laws and victimhood is indulged in for petty emotional rewards.
Legalist philosophy constitutes one of the three dominant streams of Chinese philosophy along with Confucian and Daoist philosophies. It aims to establish objective, impartial and impersonal standards for human conduct. It sets forth prescriptive models using such metaphors as the builder’s plumb line and carpenter’s L-square.
Qin Shi Huangdi bureaucracy was based on legalism which was a philosophy of humans needed regulation by law and live in harmony with nature. The laws were extremely harsh. Families and communities had to watch and control each other with the effect that no one could trust anyone. This harsh rule of the Qin abolished the feudal states and legalism became the new government. However, he did believe that people should respect their ancestors and rulers.
One story about legalism is that because of the many rebellions there were many people conscripted. One group of conscripts was late so they asked the leader what was the punishment for dissertion.? The answer the punishment was death. Ok so what is the punishment for being late? The answer The punishment was death. So they joined the rebellion.
Everything new idea is old and has already been tried some where.
Sue – it’s interesting you mention that even families couldn’t trust each other in the legalist environment. I suspect that’s because law eventually intervenes even between the most intimate “organic” relationships where trust normally arises in an informal manner. Perhaps that’s why people are so obsessive about the law because the law has now hollowed out the informal relationships and if it breaks down there really is nothing there to fall back on.
Interesting that the Qin dynasty came after a long period of warfare. Sounds a lot like Europe leading up to the world wars. The US empire would be the equivalent in modern times as it aimed to “unify” the whole globe (more or less) just as Qin aimed to unify China. This matches to Spengler’s “civilisational” phase of the historical cycle.
I think ‘dignity culture’ may from the start be in a serious predicament, due to its dimension of invocation.
Receiving dignity from the institution appealed to necessitates a quid pro quo.
And as institutions are not individuals who posess dignity themselves, when appealed to, they will necessarily overshoot the mark, consuming the appealing party in the process.
They merely are the law. A new Caesar once again embodies it.
Michael – you might be right. Although, if you think back to the time when dignity culture started, the main issues would have been universal suffrage, civil rights and not living in constant poverty (getting paid a living wage). If the state didn’t grant those things, what other recourse would people have had to get them except violent revolution and that’s exactly what was brewing at that time.
Oh, absolutely; it just that that historical phase is behind us.
There just isn’t anyone left to appeal to; appealing has become self-referential, an orgy of becoming-one where in the end all differences have been erased and eternal happiness looms. Death drive. (Or Polish-Ukrainian Pride Parade.)
Hi Simon,
Thanks for the review tribunals, as I had not previously heard of these.
The dignity culture idea is fascinating. It sounds to me like social obligations, and interestingly, monetary obligations tend to displace social obligations. And because one abstraction is introduced, another has to back it up and provide force, and that maybe where the law comes into play? Dunno.
Cheers
Chris
Michael – yes. We have the benefit of hindsight. I suspect the people back at that time would be astonished (and probably horrified) where it all ended up.
Chris – that sounds right. If you look at modern nations where there is no welfare state, family bonds are stronger because people have to rely on each other rather than government.