Saturday, April 12, 2008

Judicial Aristocracy

Tim argues that British democracy is being undermined by judicial activism. Supreme Court Justice Antonin Scalia made a similar argument to the Times last year using the more poetic and, perhaps, informative term 'judicial aristocracy'. Tim is going to write to Dominic Grieve requesting clarification of the Conservative Party position on this issue. Unfortunately, this article by Fraser Nelson suggests that Grieve might take a different position.

There are a number of problems with British judicial activism:

1) An unnecessary sacrifice of democracy

Many nations have needed written constitutions and judicial power to curb majority tyranny. They're an imperfect tool, though. Constitutions can be circumvented and such 'safeguards' imply sacrificing the principle of rule by the demos to a significant degree. It is to our nations eternal credit that we haven't needed to make that sacrifice. We've done as well as any, and far better than most, without it. I see no need to sacrifice that great tradition now. The great threats to our liberty come not from an angry majority but unnacountable minorities whether in Europe or our own bureaucracy and political class.

2) Lawyers don't think like 'normal' people

Every profession comes with its own set of cognitive biases. A tendency among its practitioners to a particular way of understanding the world around them. These biases can affect the way people approach important debates. One example is that lawyers tend to be sceptical of deterrence.

A couple of generalisations: Every economist, if they're honest and believe in their discipline, believes in deterrence. We understand the world in terms of incentives and expect that setting up a powerful disincentive to being a criminal will, ceteris paribus, reduce the amount of criminality. We have very good empirical evidence that this is the case. By contrast, every lawyer, in their heart of hearts, thinks that the very idea of deterrence is unhelpful and, most of the time, pretty specious. They spend their entire career thinking in terms of individual cases. That's usually how they learn law and how they practice - one case at a time. The big picture isn't something they have any serious reason to look at and sentencing one person harshly just to affect the attitudes of others seems unjust.

These two disciplines sit at opposite ends of this crucial debate. Worse, we can't even talk to each other. Economists sound brutal and unrealistic to the lawyers, lawyers sound wooly-minded and sappy to the economists.

There is no infallible way of getting to the truth of the matter, which side is right. It is a decision that is rightly left to the people in a democracy as I set out in point one. Further, if the lawyers are given a priviliged position to change policy, beyond their ability to convince people, it can mean a massive bias against the right-wing position.

3) Weakening the defence of liberalism

Constitutions and the judges who enforce them cannot, themselves, defend liberalism. The populace can always ignore, change or pervert constitutional rules and disregard or replace judges. A constitution only has value if it has legitimacy. The American Constitution, and the power of judges to enforce it, isn't contested. People believe that free speech, for example, does deserve particular protection as a constitutional right. There is no such source of legitimacy for the British judiciary and they appeal to foreign documents such as the ECHR. This means that the judicial aristocracy actually weakens, by association, liberalism itself by association. The concept of "human rights" itself becomes thought of, by the population at large, as a foreign charter defending awful men on spurious grounds.

I've put these arguments to lawyers many times. The last is usually the most successful.

Cross-posted from CentreRight.Com

Tuesday, April 08, 2008

Tax evasion vs. tax avoidance

Tax evasion is rightly a crime and honest taxpayers should not have to subsidise a criminal minority. Equally, there are sensible measures - such as simplifying the tax system - that can be taken to reduce the extent to which people can plan their way around tax (and reduce the advantages accorded to those with expensive accountants).

However, we don't think that trying to blur the line between tax evasion (breaking the law in order to avoid paying tax) and tax avoidance (arranging your affairs, within the law, in a way that minimises your tax burden) is a good idea at all. There are a number of reasons why, in practice and economic theory, such schemes turn out poorly whether you attempt to clamp down on anti-avoidance through a grand General Anti-Avoidance Principle or by encouraging the HMRC to become extremely aggresive (as has happened in recent years).

However, the basic problem is that the people who pay the highest price are never the rich foreigners that many on the left like to set up as bogeymen. It is ordinary people. Ex-cabbies starting up a business who haven't done anything wrong but are bankrupted for 88p, for example. This morning we found this 1909 election poster from the excellent collection at the Bodleian library which illustrates the basic problem pretty beautifully:

Cross-posted from the TaxPayers' Alliance blog.

Sunday, April 06, 2008

Does a politician's private life matter?

Tim sets out six factors that can help us to understand the relevance of a politicians' private life to his actions.

To my mind the crucial thing to remember is that we are in a representative democracy.  We can't judge politicians entirely on their policies because we are not just electing a manifesto but a set of oligarchs to rule for four to five years.  Politicians can ignore what they have promised in their manifesto.  Beyond that, they may be faced with conditions that policy could not be formed for before hand.  Trusting someone with that kind of power is a big deal, advocates of mixing in some purer democracy might argue it is too much, and it is quite understandable that people should want to know the character of the person they are giving so much authority.

I think that actually presents something of an argument for ideology in politics.  While ideology might be seen to corrupt people's decision making by introducing concerns other than a simple balancing of evidence and expectations it does at least make politicians predictable.  Even if you don't completely embrace a politicians ideology if they take it seriously you do at least know where you stand.

Finally, I have to quickly respond to Tim's particular dislike of indifference (he laments that people are less infuriated by that than by hypocrisy).  I actually think he is wrong on this.  It would be a real shame if the Right were to replicate the Left's weakness for unserious 'caring'.  The idea that, for example, even if someone's prescriptions for responding to climate change are lunatic it is, at least, good that they care cannot be something the Right accepts.

Cross-posted from CentreRight.Com