Coherent Law

It seems to me that social justice activists put a lot of energy into fighting battles that have actually already been won.

Principles like fairness and equality of opportunity are uncontroversial, they’re embraced (in public at least) by politicians and commentators across the whole spectrum – but still we are surrounded by gross inequality and blatant unfairness. Campaigners respond by demanding measures that will mitigate the ill-effects, but hardly anyone analyses why man-made inequality and unfairness exist in the first place, in violation of principles which nearly everybody claims to believe in.

At the root of it, to my mind, is a constitutional failure: the fact that there is no requirement for law to be coherent.

The problem comes when some apparently reasonable legislation creates inequality which only becomes clear with analysis – particularly where the beneficiaries of the breach are easily identified, and may be well organised, but the losers are dispersed and may not understand their loss. In those circumstances, governments can easily neglect putting the law right; if reform would upset an identifiable group, politicians have no incentive to tackle problems unless the public are agitating about them.

This can apply to freshly minted legislation but it clearly also applies to the long-standing laws which shape society at the most fundamental level. Current laws on inheritance, for example, are blatantly incompatible with the principle of equality of opportunity but they are so deep-rooted that people seem to regard them as part of the natural order. Resentment of the resulting injustice is therefore channelled into demands to mitigate the ill-effects, but what is really needed is forensic analysis of the principles which should underlie the inter-generational transmission of wealth and responsibility.

I’ve raised the specific issue of inheritance in a previous blog but it illustrates a more general problem with simple forms of democratic government. If it needs a vigorous expression of public dissatisfaction for Parliament to address unsatisfactory legislation, then the only wrongs that will be redressed will be those that are either uncontroversial or obviously detrimental to a significant part of the electorate. What is needed is a mechanism to identify areas where the law is clearly incoherent and push Parliament into implementing reform.

When I proposed a simple reform on these lines in a submission to the Law Commission a couple of years ago they rejected it on the grounds that it would be ‘constitutionally revolutionary’, and therefore was not a matter for them (though that submission included a lot of analysis of the effects it would have, which perhaps frightened them). I also included it in a submission to the Commons Select Committee on Constitutional Reform for their ‘New Magna Carta’ inquiry.

More recently, I put this idea forward in the ConstitutionUK project run by the London School of Economics (to crowdsource a new constitution) where I proposed draft clauses for a requirement for coherent law to be included in a written constitution.

To me it seems absurd – and outrageous – that we tolerate laws which blatantly violate principles which politicians of every stripe claim ownership of. Does anyone in politics argue against fairness? Of course they don’t – but they do turn a blind eye to laws which are flagrantly unfair*.

And sometimes it feels as though I’m the only person concerned about it.

* When I pointed out that current land law creates a constant flow of wealth from the land poor to the land rich, the response from Chris Grayling, as Lord Chancellor, was that property law ‘would seem to be working reasonably well at the moment’. What can I say?

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