Freedom is not given; its condition however is earned, and the price is morality. The higher the price paid, the greater the morality evidenced by either an individual or society at large, the greater the freedom they enjoy. Sir Robert Peel’s final principle of Policing recognises that ‘the test of police efficiency is the absence of crime and disorder, and not the visible evidence of police action in dealing with them’.[1] Obviously, a society that is composed of individuals who cause no harm, evidence no crime. Morality is nothing other than an individual acting upon their conscience. It is a belief system married to agency.
Morality is then the act itself. It is not, as is customarily mistaken, the belief, a thing which may later be proved to have been either right or wrong. Put differently, when our conscience perceives a wrongdoing then we are obliged to act and act quickly as equity (that which is right and just) aids the vigilant not the indolent. To be moral is to act precipitously in the face of harm and in so doing, you evidence freedom.
It has been previously asserted that we all enjoy one right, to do whatever we wish save that which causes harm, as this right alone remedies the need for others. Any infringement on that right is a breach of the peace. To cross the boundary where ones right ends, and another’s begin requires lawful excuse and to do so (breach another’s peace) it is simply necessary to assert the belief that you are right to do so. This, lawful excuse, is always the first claim, howsoever manifested, as a harm is any action without lawful excuse. In other words, we all believe that we act righteously and as such, it can be tested.
Importantly, any belief, genuinely held (mens rea/clean hands) later found upon testing to have been in error, is simply that, a mistake which is then remedied. This is the lived experience of every man, woman and child to have ever existed, in so much as we all act mistakenly on occasion and subsequently atone for those mistakes, as nobody is above the law, so we are all accountable for our actions, to perform remedy for our mistakes either collectively (societal) or individually. These words, for instance, are my own, I write in the belief that what I am committing here is correct, wheresoever you believe me to be incorrect then notice me of my errors (along with your supporting evidence) and I will gladly correct for them. You will have done me a service.
Crucially then the key question is of accountability. A common refrain when an obvious harm attains the rarefied air of public notice is that nobody will be held accountable, whether the bad actor be a private individual, an agent of state, or any corporate body (both public and private). Indeed, this sorry state of affairs has become customary. It has become our collective belief that for the most part nothing (in so much as being held to account) will happen and the fundamental problem with this belief is that whilst it is held to be true in the minds of most people it will continue to be true. Those who cause harm will continue to do so, wittingly (a crime) or, in most cases, unwittingly (a mistake). And mistakes are legion, stemming from that most basic of misunderstandings, our societal design.
“It is easier to fool the people, than to convince them they have been fooled. No man’s life, liberty, and property are safe while the legislature is in session.”
Mark Twain summarily described the problem from an American perspective, substitute ‘the legislature’ with ‘parliament’ and you arrive at the British version of the same. And indeed, parliament would and do fool us and themselves into believing that they are sovereign and that they may unilaterally exercise authority over us. It is this belief, devastatingly wrong, that, if we are to restore the peace, must be remedied, once and for all (the people) and in the only venue that is constituted to settle such matters, the court.
I have previously detailed (Light Paper ed 28:2, ed 29:5 & ed 30:10) how HM Government, appointed by the Monarch is subject to parliamentary approval for its actions and how those parties (parliament assembled) are constitutionally constrained from causing harm under their authorising documents, specifically the Bill of Rights. As to the lawfulness of Parliament Assembled actions, it is to the court that we must turn as they themselves re-affirmed in R v The Prime Minister [2019] UKSC 41 ‘the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries’ and for over 400 years it has and continues to be the case that our courts are based on equity, the court to apply their mind impartially to the matter in hand and considering only the evidence presented to them, establish the truth based upon their conscience.
It is past time to set precedent.
By way of illustrative detour. I am a private person, pig-farmer by trade. My interest in politics, government, or things other than to do with the welfare of pigs is minimal to non-existent as I know those to be arranged such that government pursue policy as they see fit, pursuant to the commonwealth. That is their job and unless they start up with a pig policy, I have no standing to involve myself in what does not concern me. Of course, for all other matters I have an MP, and their job is to be convinced that what the government wants is in the interest of their constituents otherwise they are obliged to say no, else they are unlikely to be an MP for very long (election cycles and party-political systems being a long-tolerated aberration which is well past its sell-by date (one of those mistakes)).
And that is how it works at a design level. For every governmental action there must be parliamentary approval in some fashion or other. The government could not employ for instance, the British Army to conduct wholesale surveillance on the British population without explicit Parliamentary approval. Neither could it implement wholesale behavioural change programmes on that same population, not without seeking again parliamentary consent to do so as either would constitute an exercise of prerogative power which are subject to law;
“the King hath no prerogative, but that which the law of the land allows him” Case of Proclamations (1611)
So in both cases, either the Government has exercised prerogative power and so is answerable to the courts as I am not aware of any extant law permitting such actions or parliament has approved these actions (both of which are admitted) in which case, again, they are answerable to the courts to which I turn to the words of Lord Diplock in R v Inland Revenue Comrs, Ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 644;
“They [Government] are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge”
This is simply to illustrate that when government, with or without the approval of parliament, step outside their boundary, doing whatever they want save which causes harm (as we are all equal under the law and equity acts in person), then I am obligated to dispute their actions and to do so using the court which exists solely to remedy dispute.
That they are acting in the way in which they do is because they believe that they are right to, that they are not, is my belief, evidenced by my knowledge as to their contractual obligations. Whether that is by my belief that they have acted unlawfully in surveilling me or conducting psychological experimentation upon me or causing my pigs distress due to a policy of forced vaccination I have lawful excuse to dispute their course of action and until such a time as that dispute is settled (either way) in court I am under no compulsion to comply (and they are obligated to desist with their actions until resolution).
If we are as a people to assert our right to do whatever we want absent causing harm then we will have to take our grievances to our courts and have them answer the argument whether tyranny, one person forcing their will upon another, is to be the law of the land as government would have you believe, or to recognise the fundamental truth which Benjamin Franklin eloquently espoused, that, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” If you wish to be free, then you must stand in the way of harm.
[1] https://lawenforcementactionpartnership.org/peel-policing-principles/
Great article Lance. Left me wondering whether what is actually being articulated here – once everything is stripped away – isn’t simply Voluntryism. How on the account presented can government exist without causing harm? If “we all enjoy one right, to do whatever we wish save that which causes harm” then that would include the right to pay no taxes, which means no parliament and no government. The article states that government is permitted to “pursue policy as they see fit, pursuant to the commonwealth”, (elsewhere, that they can do what they want “save that which causes harm”), but wouldnt at every turn that policy impinge on someones “right, to do whatever [they] wish save that which causes harm”? You would have standing pertaining to pigs, others sheep, and still others every other object of concievable policy. If the answer is that in pursuing the “commonwealth” anyone whose right was so impinged would need to be compensated, who would they be compensated by? If by ‘the government’ this would amount to stealing from Peter to pay for Paul – and hence more rights still impinged on. So my question would be what based on the articles argument would constitute harmless government action and could it ever be harmless to everyone?
Hi Mikey
Superb questions. My gut instinct led me straight to the thought, implicit here I think, that any enactment (policy) would be torturous in both conception and then execution. This is, in lieu of an “obvious” policy, say defence under clear and obvious threat, perhaps the point. These things should be inordinately difficult because, as you rightly point out, it is unlikely to be the case that in acting there will not be a harm caused. The point is that any course of action should be that which is both rationally required (ie: something that actually needs to be done) and that that somethings course is the least harmful (of all options available).
In that respect it would be something that would be of clear benefit to the commonwealth and those who do not benefit (ie: are harmed) have right to remedy. As you say, compensation. The point being, that if something is needed and the remedy to that need is the least harmful then the relative benefit weighs strongly toward the absolute majority. Otherwise, your parliamentarian has the absolutely simple decision to say no to it in generality. The dis-benefit to the few, whose remedy would be proportionally (should they even stand on their right to remedy) small in comparison to the benefit to the many. Anything else, an act which causes a broad harm would never see the light of day – back to the point that any action should be inordinately difficult to pass in the first place…
I’d like to use the example of the bank of england. The bank was established as a private venture by William shortly after being crowned “first amongst equals”. Why? Because he wanted to pursue his war in France. This was no longer possible, post BoR, the old way, as now your MP could (should) only say yes to the kings will (government) if it is in the clear benefit of his constituents, otherwise the MP is obligated to say no (as they likely would have to the prospect of funding the kings desire for war).
Remember that general taxation was a temporary measure, enacted to fund the defence of the realm from the menace of those revolutionaries across the way…. there’s a lot of irony knocking around in that…
Remember that we are grappling with a regime that has inveigled its way into practically every area of our lives (from cradle to grave) over a long measure of time – when the constitution was written this was far from the case and so it is almost torturously difficult to see a world where the authorities no longer exercise themselves everywhere over us. Almost like when I challenge local authorities by asking them to evidence their authority to pursue a course of action they almost invariably come back with an expression along the lines of… “but how will we get anything done…”
Precisely.
Haha – that last line made me chuckle. I get the argument better now. If people had to be compensated (rather than the notional cost-benefit analysis that CLAIMS Pareto efficiency but in any case doesnt actually compensate the losers), that would put the breaks on a hell of a lot.
Government action is justified only when it:
– Is rationally required (a pressing need exists).
– Pursues the least harmful course of action among all available options.
– Provides remedies (compensation) for those harmed by its actions.
Actions should be undertaken only when they are unambiguously beneficial to the majority or address a critical need (e.g., defense under clear threat). Mitigate harm: Decisions should be torturously difficult, ensuring that only the least harmful and most beneficial options are enacted. Remedy harm equitably: Those harmed by government action should have avenues for compensation or redress.
bleeding hell, you wrote it far better than me! One point (well 2 actually…)
Firstly was for you to take away the correct position of the MP – that is to weigh on the action proposed to them by government as to whether it is in the interest of the (vast) majority of their constituents – not all the drivel of party politics that has come to be grafted onto their proper job (as clearly defined in article 13 of the BoR as the resolution of our grievances (with government harm) – see how that works?)
2nd point – which I am sure you likely got was something you said, which is the crux of the matter. The necessary conflict that arises in that we may all do whatever we want. We all may do whatever we want, the king is no different, government is him effecting his will (he is admirably compensated for taking on the role of king/government). Where those conflict (our respective right to do as we choose) with one another is the point of law, remedy for when one’s action comes into conflict with another exercising their equal right to do whatever they want. This is the whole show; we are all equal under the law (what one can do, all may do) and that nobody is above the law (we are accountable for what we do (ie: we undertake to perform remedy where we cause another harm)).
Thanks for the explanation—it’s clear and well-thought-out.
I’ve always found the concept of harm, and the capacity for courts alone to deal with it equitably, a bit tricky in practice. In economics, harm tends to get translated into costs, and the idea is that with clearly defined property rights and voluntary exchanges, those costs are internalised alongside the benefits. The initial endowments of each party set the terms, and if the exchange is voluntary, it’s by definition beneficial to both sides—each party values what they gain more than what they lose. In this framework, harms are essentially compensated within the exchange itself.
But there are problems with this. One is the distributive injustice baked into such a market-driven concept of harm. The poor “sell cheap,” and their capacity to negotiate compensation is inherently limited. But more to the point, is what economists call externalities, although I prefer the older term “social costs,” as it’s not clear to me that all such harms can be internalised, even theoretically, by clearer property rights.
Atmospheric pollution is a prime example: each individual polluter might only be making a tiny contribution to carcinogenic particulates, but cumulatively these emissions can cause serious harm—chronic illnesses, life years lost, entire ecosystems affected etc. And all this happens without any “meeting of the minds” or the opportunity for affected parties to negotiate the harm they’re subjected to. What’s more, even when the cause of harm becomes apparent, it’s often unclear who should be held liable. If I develop a chronic illness after years of living near multiple polluters, who precisely caused that harm? Even if I could pinpoint the sources, apportioning liability between them would be nearly impossible, not to mention prohibitively expensive. And that’s before considering how the legal burden of proof works. In such contexts, showing causation on the balance of probabilities often requires costly, specialised scientific research that the harmed party would have to invest in. Even then, if the polluters didn’t knowingly cause harm or weren’t negligent, they’re likely off the hook. Ignorance, in this system, is bliss. Willful ignorance becomes a profitable strategy.
Harm in the context of individuals is a much simpler affair. We’re limited in the ways we can harm one another, and the methods are well understood— and can serve as a decent guide to right/lawful action. When things scale up and we move into the realms of large-scale production, science, and technology, it seems to me to become far more complex and thorny. Money and wealth also play a much larger role in shaping how harm is understood and addressed. They influence what kinds of science get funded, which harms are studied, and how harms are weighed against benefits. This gets particularly tricky when dealing with innovation, where harms might be cumulative and impossible to fully predict, or with preventative measures, where the costs of inaction are equally hard to pin down.
On the definition provided earlier, regulatory measures taken to address these issues—along with the scientific research needed to guide them—would likely qualify as “justified government action”. But it’s not hard to see how such measures could become expansive, resulting in what you describe as “a regime that has inveigled its way into practically every area of our lives” (a sentiment I certainly share). Beyond that, there’s the ever-present risk of regulatory capture, where, without strong independent public funding and accountability, powerful industries co-opt the very structures meant to keep them in check. Both are issues we’re all too familiar with in the context of the Covid Event.
We also see how many recent policies that have been so damaging to individual rights are built on scientific claims about cumulative and diffuse harms—whether those claims are about the environment, public health, or microorganisms. Or intelligence claims linked to pre-emptive self-defence. Whatever one thinks of these specific claims, it is surely true that before we can even begin to adjudicate questions like foreseeability, negligence, or harm in court, we need reliable, neutral information about cause and effect. What science gets funded, who interprets the data, and how it’s used to justify harm and benefit are all influenced by the same dynamics of power and wealth. If as Marc says, truth is sovereign, its hard to come by and increasingly expensive (so it seems). Moreover, it’s hidden, contested, manipulated, and often weaponised. The larger the stakes, the more the so-called truths underlying harm and benefit claims are prone to distortion.
This gets further complicated by structural issues like limited liability, which is unavoidable for large-scale enterprises, but brings its own moral hazards. Large-scale projects often involve harms that can’t be undone, no matter the monetary compensation offered. The bigger the operation, the more pressing the questions of harm, liability and enforcement become—and the harder they are to resolve. Some mistakes simply can’t be remedied. We are yet to be able to bring people back from the dead for any amount of money, but even harms short of death often get reduced to a monetary valuation that often does little to address the actual damage.
There is a stong feeling—undoubtedly justified in my view—that the social contract is broken. It’s supposed to deliver a net benefit, but instead, many people sense that it’s doing the opposite. Harm isn’t being mitigated; it’s being enforced, systemically and on a massive scale. That’s why the idea of truth as sovereign resonates so strongly for me. In a world where lies and distortions are used to perpetuate harm, truth becomes both a necessity and a form of resistance.
You have nailed probably the most important point to this mess… LIMITED LIBILITY… a temporary measure put into place to win the Crimean war as suppliers would not supply the government funded wars as they feared they would not be paid…
So thereby the rich got benefit from the poor so to speak as is still a major problem today is that companies go bust, the workers and suppliers get shafted whilst the owners enjoy their newly bought villas in Spain… and worse is government payment guarantees thanks to the tax they extract from the public…
Limited Liability must go as then only profitable and well run companies will survive.
Ethical private businesses do not cause harm and benefit many… and people willingly engage. Maybe the whole model of governance needs sorting. People do what is in their best interest, so if there is a need for governance it should change its methods.
Maybe simply in respect of governance we are not opening minds to all possibility. Most would agree and dont begrudge contributing to the greater good. Was it not Branson who said rather than pay taxes he would build a college in Wales? Benefactors in the past used to fund many social projects. After all it was society that allowed accumulation.
Also it used to be an honour to serve the people.
Thanks for these replies, Marc. I have only just seen them. The history of the formation of limited liability is fascinating; I’d never heard that before. That said, I would argue there is natural limited liability through bankruptcy, and when you consider the really large-scale forms of technology and production (take nuclear power as one example), it seems to me that it is impossible to “internalize” the costs and risks fully; these are inevitably social.
We live in a world of imperfection. It’s all about trade-offs, so I’m just putting the counter here. To be fair, we do still have a world of “benefactors” — they come in many shapes and guises. The Carnegie Foundation, Ford Foundation, Bill and Melinda Gates Foundation, and Rockefeller Foundation are some of the most notable examples. Someone coined the term philanthro-capitalists; someone else coined the term philanthropaths…
I personally prefer the model of voluntarist, associationalist, and mutualist forms of pooling risk — friendly societies, early unions, mutual societies, etc. These were more rooted and organic. Post-World War II, while it may have started out with good intentions, organic mutual organization was absorbed into the state, along with the attendant bureaucratization, MBAs, “professionalization,” and so on.
Finally, your point that “it used to be an honor to serve the people” is something I’ve been reflecting on more and more. The NOC NOC is, of course, questioning the people’s obligation, and I’ve been wondering to what extent that is, in part, because of a feeling of the loss of the obligations and duties associated with public service. In this sense, it becomes a situation where rights are what we fall back on — i.e., ultimately, we are not obligated – when the social contract and the obligations on “the other side” are felt to have been broken?
Maybe one for discussion around the campfire…
Sorry pasted in twice by accident
Have deleted duplicate
“(take nuclear power as one example), it seems to me that it is impossible to “internalize” the costs and risks fully; these are inevitably social”
If it cannot be insured by the private sector then it should not be publicly funded as the risks are not knowable!!! No one knows the true cost and hence by subsidising it other innovation is being stifled.
“philanthro-capitalists; someone else coined the term philanthropaths…”
The problem with those is their ‘philanthropy is based on self interest and like most of them they purely push what makes them more profits than they give away!
Looking forward to the next campfire 🙂