“If you want to know the law and nothing else, you must look at it as a bad man.” – OW Holmes, The Path of Law
Last night the Prime Minister set down a number of rules of conduct to be followed during the Coronavirus pandemic. This has prompted two responses that I think are misconceived. “How is this to be enforced?” and “This offends the rule of law.”
OW Holmes thought that what distinguished law from morality was the presence of a sanction for breach. This explained why he thought the appropriate perspective was that of the bad man, who cared nought for morality, but cared about sanctions just as much as anyone else.
This perspective misses the importance of rules for guiding our conduct. Even in a society of angels, we need rules, as is demonstrated by the latest pandemic. Should I still go to work? Can I go to the pub? How often can I go out? Can I still visit my family? On our own, answers to these questions may be unclear. We also face a collective action problem: is there any point in my choosing to stay at home if nobody else is?
All of us need rules to guide us. Where do rules come from? Sometimes they arise by convention, such as the rule that men do not wear a hat in church, or (perhaps more pertinently) that we say “bless you” when somebody else sneezes.
Conventional rules are however slow to develop, and may be so open-textured as to provide inadequate guidance. So, we need someone with authority to posit the rules for us. This may be a legislature, the producer of a game such as Monopoly, or a business such as Waitrose when it stipulates that only the elderly or vulnerable may shop at certain hours.
Further to think that rules work because of the possibility of sanctions is (as a matter of observable fact) implausible. There are around 125,000 police officers in the UK. That is far too small a number to ensure that a recalcitrant population of 66 million comply with any social distancing rules (or indeed all the other legal obligations to which we are subject). Rules work because we internalise them. We use them in deciding how to act. Very few people (fortunately) are like Holmes’ bad man. We want to comply with the rules. We just need to know what they are.
In order for rules to work as regulation, it is important for them to be “bright lines”, expressed in terms people can understand. Vague talk of “social distancing” doesn’t suffice. Telling people to stay at home, only travel to work when absolutely necessary, shop for necessaries as infrequently as possible, take one form of exercise per day alone or with a member of your household, does this.
It is best if important rules (such as these) are posited in primary legislation, following green papers, multiple debates in the legislative chamber, public scrutiny, and so on. In an emergency however, the only body able to posit rules with sufficient speed is the government. And that is what they have done. No other body possesses the authority to have done this. It would be optimal if no further police powers or enforcement measures ever prove necessary (although the Prime Minister stated that they will be forthcoming). The best thing now to happen would be for all of us to internalise the rules, and follow them.
Although all posited laws are rules, not all rules are laws. If we all know what the rules are the moral pressure to comply with them becomes very strong (as the owner of Sports Direct, Mr Mike Ashley, discovered when he initially stated that he would keep his stores open). The posited laws of England can be interpreted by the courts. The rules posited by the government yesterday are not like that. Those demanding further clarity are, missing the point of them. Use them yourself.
The “rule of law” is about the importance of being ruled by rules posited in advance, that enable us to guide our conduct, rather than our being ruled by the choices of others (police, judges, government officials) with power over us. The rules set down yesterday are a demonstration of the importance of that ideal, not a violation of it.