Law exists only in the imagination (or tax statutes)

by Joseph Markus

The troubled confluence of law and politics has been in the news this week and last, with the US Supreme Court holding three days of hearings over whether or not to annul ‘Obamacare’.

In some respects, the law is an innately conservative device, but in many others, particularly under the rubric of human rights, it can embody the potential for social change, a radical potency. The common law process—of adjudication and argumentation—bears this out, allowing the law to gradually shift.

When legislation is constructed, the law can shift to a much greater degree, and I think this is what Sarah Walker was mainly talking about in her recent post on gay marriage. In her piece she surveyed the question of whether society follows law, or vice versa. Something she didn’t address was legal argument in the courts and elsewhere. This is my focus.

The interesting part of the question, at least for me, was the way it sought to separate ‘the law’ from ‘the society’. In truth I don’t think they can ever really be coherently pulled apart. There must, in my view, be some synergism between those entities.

As partial illustration: the old maxim once applied to war by Carl von Clausewitz, that “war is the continuation of Politik by other means”, can equally apply to the idea of law.

Remember, first, that law is a vocabulary of considerable power and that, much as with Foucault’s exploration of the genealogy of the sciences, to ‘speak’ in that highly-specialised language is to be able to wield that power.

To provide an example I can take up one more word used by Sarah. That word is ‘jurisprudence’. The word commonly denotes the philosophy of law, and it represents a taxonomy which seems to suggest that the process of thinking about law is one that is separate from other philosophies. It carries with it its own concepts and authors, all under its own name. This is in contrast to the majority of other social sciences which demonstrate how people interact with others and with rules. The difference in treatment indicates that law is an elevated discipline; it is an idea which carries with it much history and tradition, and it is an idea that encourages adherents to drop critical scrutiny (‘the law is the law’).

The effect of this is rather simple. Jurisprudence denies to any external philosophy the power of critique: law is portrayed as a hopelessly introverted and self-supporting discipline.

This is the ‘war’ and it is what lawyers do par excellence: that is, the presentation of highly-formalised arguments, wrapped in axiomatic, powerful, and ‘legal’ reasoning.

One obvious problem with this, however, is that ‘the law’ is never a strictly self-contained web of meaning. It must seek input from other sources as, necessarily, it is both semantically and conceptually incomplete (though the reach of this insight varies according to the law in question: a human right is usually more indeterminate than, for instance, a tax statute). Take, as an example, the concept and word-grouping ‘private life’: quite how far one takes the meaning of that phrase is debatable, but it seems correct to say that matters other than law—we can call them, here, ‘politics’ or ‘policy’—will come into that debate.

To put it another way: if law were based entirely on a self-contained, a priori net of postulates, as a matter of clear logic it wouldn’t be possible for that law ever to change to meet new or un-envisaged sets of circumstances (to adapt), or to change to reflect altered currents of social thought (to grow). The fact that it does adapt and grow is evidence that something other than law is at play in at least a few cases. Admittedly a Parliament can change the law, but this won’t affect the indeterminacy problem. (Remember, too, that EU and international/European human rights laws constrain and, at times, shape debates within Parliament; so the relevance of legal argument can extend even this far.)

Here, then, is the ‘Politik by other means’.

The argument is not a normative, but rather a descriptive, one. This is how law must work; as such, it should be always be assessed in a socio-political frame. I’m not saying anything yet about whether this is a good or bad thing (the subject of many more posts). It tends to be the case, as with all things, that law simultaneously can be the subject of abuse and of utopian vision (and, similarly, dreams can always turn sour). From ideology to utopia—and everything inbetween—the key is how it is used, and this (contrary to entry-level ‘ethics’ classes given to trainee lawyers) is the unique responsibility of the lawyer.

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6 comments
  1. I am basically a Libertarian and I believe that government should be limited to protecting us from each other, that means fair trade, honesty in advertising, no rape, stealing, intimidation ect allowed, and protecting us from foreign invaders with a strong military. When government tries to do more it will lead to poorer less free people and general injustice for most. True stable constitutional government does not change, it does not shift, it does not bend in the social winds, that is the problem we have now, that is why our economy is lumbering along, people are unsure of what the rules are going to be. For people to be free, for economies to flourish, and for any sense of justice to pervade a society the rules must be certain and predictable for more than 4-year election cycles. Government is simply force, it can advantage some at the disadvantage of others, it can enrich some at the expense of others, it can never make everyone better off because it has no ability to contribute to the whole.
    Our problem now is that we are getting away from our constitution which should be eternal not an evolving set of guidelines, this is the path taken by Portugal, Spain, Denmark, Ireland, Greece and so on down the list of countries with national laws that bend in the winds of public opinion. Who does not want FREE healthcare I certainly do, but this national healthcare is not free, it is going to cost 17 trillion dollars that we do not have. Who would not vote to retire at 50, for generous pensions, healthcare for all, housing for all, food for all, even clothing, even a certain level of happiness all provided at the expense of companies and individuals who produced something valuable and given to those who did nothing.
    Often forgotten is the small profit margin of those at the top, in the 1% we all hear about. They only have about 5-10 percent of all the wealth in a country or economy. In the course of earning that small percentage they generate 10-20 times that amount in the economy that the rest of us live on. Now when you start taking or cutting into that small margin with government regulation and welfare programs you essentially destroy about 5 dollars in growth or economic power for each dollar taken by government. That is why no country can collect more than about 18-20 of GDP in taxes, because that is all there is any more must come from deficit spending.
    My point is simply that there is a limit to socialism and we have long since passed it. Government is now 44% of the economy this is over twice as much as we can afford. So we must pick and choose which social programs we want or go the way of Greece and Italy.

    • josephmarkus said:

      I’m really not in a position to comment on the US healthcare reforms. But, from what I’ve read, it does seem as though they should be found to be constitutional, at least (if the Supreme Court happens to disagree, it’s likely to do more harm to that institution in the long run).

      I found this article in particular to be very good: http://www.nybooks.com/blogs/nyrblog/2012/apr/02/why-health-care-challenge-is-wrong/.

    • We’ve established from your previous comments that you are a libertarian, and that you believe in the minimal state. I also appreciate hearing the libertarian angle. But may I please ask that in future comments you insert some more factual analysis into your assertions, however, not least because it will make your case more persuasive.

      For some examples: You say 44% of GDP is “twice” as much as the US can afford, but when was it below 40%? Even Mrs Thatcher hardline policies could not get government spending in the UK below 40% of GDP. So why is it “twice”?

      You put Denmark in the same bracket as Portugal and Greece? Why exactly? Their respective situations are very different.

      Where did you get that extremely implausible figure that national healthcare is going to cost $17 trillion? And if it is, over how many years will this be? If it is a sum for after many years, then it might be more intellectually honest to give the amount that it will cost on a yearly basis rather than a lump sum that extends in perpetuity…

      You have been utterly misled if you believe the incorrect stat that the top 1% in the US “only have about 5-10%”. It is totally wrong. The number in 2007 was an eye-watering 43%. Bear in mind, that some (most?) members of that top 1% pay less tax than you or I probably do, as Mr Romney’s records admit. It is very generous of you to still believe in the myth of trickle-down, when the pattern points to wealth flowing the other way…

      In any case, this is not the right place to engage in debates over libertarianism, as the article above is on the concept of law. I apologise to the author of the post. Perhaps next time though.

  2. Well, even Keynes a political socialist and central banker, in his book “General theory of Employment, Interest and Money“ talked about and Rahn curve which in my opinion is a mathematical proof of the fact that when taxes or government reach about 20% plus or minus 5% of GDP, the GDP growth becomes severely and parabolic in the negative. There is some range between service based economies and industrial type economies with the former being able to withstand more socialist programs. In referring to this curve even Keynes said that the maximal size of governments like the UK and US which existed at the time is about 20%. I do have to admit though that economics is one part science and 3 parts conjecture, but this is a fairly convincing discussion by the father of socialist economics. Keynes also said in this same book that there is a limit to the size of socialist programs and the size of government that is simply a fact. The first socialist economists like Keynes believed in socialism on the scale of about 15-25% of GDP because they knew this was all that was sustainable. Also Keynes points out that in times of economic downturns and shrinking GDPs the revenue to government shrinks at a much faster rate causing severe deficits.
    17 trillion is the number from the republican budget office, admittedly a biased source, using numbers from the GAO which is also biased by Obama imposed constraints on calculations, it is as you point out a number projected over 30 years. The yearly cost is estimated to be about 1.0-1.7 trillion/yr as I understand the GAO report after all the legislation is written by regulators and Obama care is in full effect.
    Thanks for the link though, to the wealth distribution article, you are right of course about the 43%. When I talked about the 5-10% of wealth I was trying to echo Adams theory that the profit from wealth in the hands of the wealthy is only about 5-10% a year on average. The point he makes and it seems relevant today, is that if you take a person who has 1000 dollars of wealth they will only make 50-100 dollars on that wealth on average per year, a small margin by some estimates, and that as you go down the wealth scale that margin becomes smaller and smaller meaning that the less wealthy you are the less able you are to use wealth in a way that generates more wealth. The less able you are to contribute to the overall economy.
    As a government takes wealth from those who are able to use it to generate GDP growth and gives it to those who contribute to Negative GPD growth in the form of consumption the greater the multiplier effect of this transfer on negative GDP growth. So that the 1000th dollar redistributed in this way has a proportionally greater negative effect on GDP growth and wealth creation than the first dollar redistributed.
    There is no such thing as trickle down I might agree but there is definately such a thing as choking down an economy.

  3. Please look at the revenue graphs from the 1940’s until today and you will see a fairly constant revenue stream as a percentage of GDP to government. The revenue appears to stay the same during times of 90% marginal rates as it does in times of 28% marginal rates, there are many many sources for this curve, I looked at the one on the US gov accounting office website. The only effect higher taxes seemed to have was higher unemployement and lower GDP growth. I would like to see arguments that say otherwise. Because, If I could get the math to work out I would love to be a socialist and have government provide everything for everyone including myself.

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