Prosecution State

Law as tool; law as weapon

Law, considered merely as order, contains…its own implicit morality. This morality of order must be respected if we are to create anything that can be called law…

-Lon Fuller

It is a striking coincidence that, if Kamala Harris happens to win the US Presidential Election in November 2024, the President of the USA and the Prime Minister of the UK will both be former senior public prosecutors - Sir Keir Starmer having previously been Director of Public Prosecutions for England & Wales, and Harris having been Attorney General of California. I am not quite the first person to have observed this odd twist of happenstance, but its import has nowhere yet been elaborated as far as I can tell. I will therefore do so briefly here. Suffice to say, it is only a coincidence, but a deeply symbolic one, and holding it up for observation reveals some important things about the relationship between law and politics in the age in which we live.

First things first: Michael Oakeshott once called law ‘an exceedingly ambiguous phenomenon’. This is because, although in the English language it is one word, it operates in two rather distinct modes. On the one hand, law exists as a set of rules akin to a ‘grammar’. Just as the rules of French grammar govern how French people communicate (one may say ‘La plume de ma tante’, but one may not say ‘Bingly bongly boo’), law creates an order which governs how people conduct themselves in a given society (one may say that the Prime Minister is a prize baboon, but one may not steal his lunch).

On the other hand, law can be used to express and realise purposes as a tool of policy. Hence, for example, in Scotland there is such a thing as the Alcohol (Minimum Pricing) (Scotland) Act 2012, which has the explicit aim of reducing consumption of alcohol, and which puts in place a framework of licensing regimes and a mechanism for setting a price floor per unit of alcohol. Here, law is not neutral - it is designed to achieve a political objective.

The problem, as Oakeshott saw it, was that by calling these two things ‘law’, we were dangerously muddling our own thinking. They are really two different phenomena. One of them is a reflection of nomos, meaning settled custom, habit or morality (for instance, the prohibition of theft or murder), while the other is purposive and hence designed to realise a telos of some kind (such as a healthier and more fulfilled society which does not poison itself with the excessive consumption of foul, sinful, nasty, single malt whisky - if you’re in the market for a good independent bottler, I get a lot of mine at the ever-reliable and consistently excellent AD Rattray).

For Oakeshott, the fact that we conflate these two things under the heading of ‘law’ is not helpful, because it stretches the concept too far. The former, law-as-nomos, is rule-based: it makes clear to the population what they are not allowed to do, derived from their pre-existing moral sense and customary mode of living, but it otherwise leaves them alone to live their lives as they see fit. The latter, law-as-telos, however, is managerial: it creates the conditions within which executive decisions are legitimated in order to realise societal objectives. Hence, the Alcohol (Minimum Pricing) (Scotland) Act 2012 does not actually specify what the price floor for alcohol should be, but rather provides a formula for calculating it whose input values are determined by the Scottish government at any given moment. So while law-as-nomos is a relatively fixed, and relatively neutral, set of norms which the population do not particularly need to think about, law-as-telos produces ever-changing, unpredictable regulatory frameworks which act more like freestanding justifications for government to rule by decree. The former is orderly, but the latter is more aptly labelled disorder.

Oakeshott delivered important insights to us here, but he did not explicitly point out something rather important, which is that it is relatively easy to twist law-as-nomos in a ‘teleocratic’ direction simply by applying it politically or purposively. Rules such as the prohibition of murder, or theft, or discrimination, might seem neutral on paper, and merely reflective of given cultural norms. But the proof is in the pudding: how ‘neutral’ they are depends on how and when they are applied, who they are applied to, or even whether they are applied at all. Anyone can see that if theft is prohibited generally in theory, but in practice there are only certain types of people who tend to be successfully tried and convicted of that crime, then the rule prohibiting theft is in fact being used - whether consciously or not - to achieve a political, rather than a merely judicial or legal, outcome. (And, indeed, it is the stuff of Marxian cliché to observe that even the neutral application of rules can itself be political in certain circumstances: hence Anatole France’s hoary old line about how laws prohibiting begging, theft or sleeping under bridges, ‘in their majestic equality’, apply to rich and poor alike, though with clearly unequal real-world outcomes.)

This fact - that rules can readily be turned into tools of policy simply through selective application - makes decisions about how the law is applied intensely political, if those in charge of what common lawyers have traditionally called ‘the policy of the law’ do not keep a tight rein on themselves (a subject to which I will return towards the end of this post). This obviously applies to judges, but judges are at least somewhat constrained by precedent and by the rules of statutory interpretation; it applies much more nakedly to public prosecutors, whose job it is to decide who gets prosecuted, and for what. That places them at the heart of decision-making when it comes to the application of the law, and therefore makes their role - at least potentially - a highly politicised one.

That the heads of government of the USA and UK might both end up being former occupants of such a role is therefore filled with symbolic (one might even say ironic or satiric) importance. I do not suggest that either Sir Keir Starmer or Kamala Harris did anything untoward at any stage in their respective careers. Rather, I simply point out that the fact that both have suddenly risen to such prominence seems to rhyme with the cadence of the times in which we live, during which, on both sides of the Atlantic, law - whether public or private - has itself taken on a largely policy-based orientation, and is being increasingly wielded as a political tool for the manipulation and discipline of society, or even as a weapon against it.

Readers on either side of the Atlantic will be able to think of many superficial examples of this phenomenon, particularly in the realm of criminal law, in which prosecutions have been sought - or not sought, as the case may be - transparently on the basis of achieving a political objective of some kind, or in light of some political consideration. This has contributed to a widespread sense that the criminal justice system has itself become corrupted by double standards and weakness, and simply picks and chooses those who are punished, and on what basis, accordingly. And the idea that the UK already has a former public prosecutor as PM, and that the US might soon follow suit in the presidential election, is in this sense almost too obvious in the way that it speaks to the politicisation of justice - a satirist would have found these circumstances unsuitably ‘on the nose’.

But the symbolism of Starmer and Harris is communicative of a much deeper malaise at the heart of the relationship between law and politics. I earlier caveated my observation that the application of the law is an intensely political act by making clear that it is so unless those charged with applying it keep themselves under a tight rein. To understand this point we need to make a brief foray into legal philosophy, and the emphasis Lon Fuller laid on something called the ‘inner morality’ of law.

Fuller was concerned with a debate which preoccupied legal philosophers for much of the 20th century (and which has never really gone away), concerning the distinction between positivism and natural law. To greatly simplify, this was really an argument stemming from secularisation. Until the Enlightenment, everybody believed in ‘natural law’ in the sense that they understood law as reflecting immutable features of human nature and morality, and thought that human law was at its best when it reflected the moral laws which God had ordained to creation.

This obviously did not make sense to a secular audience, and secular thinkers therefore, as modernity advanced, began struggling with the problem of what law or ‘legal science’ should consist of. Over time, a series of ‘legal positivist’ thinkers - John Austin, Hans Kelsen, and HLA Hart being the most prominent - grappled with the subject of what made law ‘law’, and decided that since law had to be a social construct (how could it be anything otherwise?), then what made law ‘law’ was simply the belief on the part of those who were subject to it that it was indeed ‘law’. The accumulated effects of their immense erudition therefore resulted in the essentially tautological conclusion that law is law so long as people recognise it to have authority as such.

This meant that law in itself has no necessary connection to morality. To be understood as law, a legal system does not have to conform to any underlying or pre-existing framework of values. That does not mean, of course, that any of the positivists would have said that there is no such thing as morality, or that law ought not to reflect what people intuit about what is right or wrong. But what gives law its authority is not its connection to morality - it derives its authority solely from the fact that it is socially recognised to possess it.

This may sound terribly recherché to an audience of non-jurisprudes, but it is important to grasp its import. For, as Fuller pointed out, setting to one side whether or not law is merely a social construct or relies for its validity on how closely it reflects natural right or external morality, a legal system has at least to respect the mission of law as such - which he identified as the enterprise of ‘governing human conduct by rules’. And in order to govern human conduct by rules (in order to create order, as it were), there must be on the part of those engaged in the legal system a commitment to law’s own ‘inner morality’: an understanding that order is in fact, in its own right, moral.

This inner morality, according to Fuller, consisted of eight principles: law must be (1) of general application; (2) promulgated publicly; (3) prospective rather than retrospective in application; (4) intelligible to those addressed by it; (5) consistent; (6) practicably possible to comply with; (7) stable; and (8) ‘congruent’ (meaning that there should not be a gap between the law as it exists on paper and how it is applied in practice). The more that these principles are neglected within a legal system, the harder it is for people to know what the rules are or to predict how they will apply or what they will be in the future - and the harder it therefore becomes for people to plan their lives accordingly. They will in such conditions therefore not be subjecting their conduct to rules as such, but rather to the whim of those who govern them - and, of course, they will as a result therefore not be subject to law at all. This was deeply undesirable to Fuller, because, as he argued, governing human conduct by rules is the only real way to maintain social order while respecting individual autonomy: if people know what the rules are with relative certainty, can understand them, can see them to be consistent, and so on, then they can act freely within that framework, safe in the knowledge that their planned conduct will be lawful in the long-term, and are even free to (if they wish) break the rules and face the consequences.

For Fuller, then, it was imperative that those engaged in lawmaking, adjudication and enforcement were committed to law’s inner morality on the basis of the eight principles he laid out, because that was the only way that law could function as a system of order, and hence reconcile the need to maintain social stability with the desire to respect freedom. Another way of saying this, of course, is that those charged with oversight of the legal system must not allow themselves to become politicised, at least to the extent that law’s inner morality remains sacrosanct. If law’s inner morality is respected, then it is possible for its addresses to freely govern their conduct according to rules. Otherwise, law - and freedom itself - becomes degraded.

Fuller was, then, strongly critical of the legal positivists, because in focusing on law as a social construct, they had become preoccupied with authority: law is law because those subject to it recognise it to have that quality. But it is a short step from there to saying that authority as such is the heart of the matter; law is really just a set of commands or decrees that happen to have the veneer of legitimacy because people behave as though this is the case. And since this is all that law really is - a system of binding, authoritative command - then it is not a system of order, or for governing conduct through rules, but for achieving compliance. The unstated and inchoate ideal of the legal positivists, as Fuller saw it, was indeed one of total compliance: law is simply the expression of authority, and the addressee of the law is in this mode therefore not an autonomous agent but rather an obeyer of commands. One does what the law tells one to do, because law is really in the end just a system of subordination.

It also obviously follows that law in the positivist mode is instrumental. Since law has validity irrespective of the underlying morality, it definitionally does not exist to reflect any sort of inherent moral framework. It may be deployed to achieve morally good outcomes - and there have never been any legal positivists who would suggest otherwise. But the important point is that it is indeed ‘deployed’. It is a neutral tool that can be turned to good or bad purposes, in exactly the same way as a drill, hammer or pen. And the implication of this is that it is to be assessed primarily in respect of how well it achieves the outcomes that it is being deployed to realise - whether it is bringing about compliance - and whether those outcomes are desirable. It is not to be assessed on the basis of its adherence to Fuller’s ‘inner morality’, or the rather quaint and archaic notion that there is something valuable about the exercise of governing human conduct by rules - rules, that is, that are generally applicable, publicly promulgated, prospective, intelligible, consistent, etc. And it certainly is not to be assessed on the basis that is anything of value in the autonomy that the exercise of governing conduct according to rules enshrines.

We live, then, in the age of the positivists. Our attitude towards law is largely that it is simply something that is to be picked up and wielded to achieve an objective - whether by politicians trying to control how much alcohol people drink, by private individuals seeking to win essentially political victories through lawfare in the courts, or indeed by public prosecutors using their power to determine whether prosecution is in the public interest, or choosing indictments, according to particular aims. We do not appear to have a great deal of respect for law as a system of rules, and particularly not as a system of rules imbued with an ‘inner morality’ along the lines Fuller described. And the consequences of this is that we increasingly intuit that we are not really being governed in accordance with law as a framework of nomos, but rather by an unpredictable, politically motivated and arbitrary ‘teleocracy’, which only thinks in terms of grand, utopian purposes, which does not think of law as being valuable in its own right, and which has no real commitment to ‘the morality of order’ at all. We are not law’s addressee’s, in other words, but its subordinates, and our only duty in respect of it is construed as being to obey.

It is entirely fitting, then - and, again, I stress that I mean this in the semiotic, or satiric, sense - that two of the most important political figures of the current moment should have built their careers in part on the task of wielding law in its most instrumental form: to discipline and punish, or to refrain from doing so. And it seems entirely natural that this should be happening at a time at which politics is itself - globally - appearing to shift in the direction of command and subordination, and contempt for the autonomy which Fuller’s ‘inner morality’ of law is intended to secure. I make no accusations and identify no wrongdoing; but I observe the grim irony behind these developments, which are highly suggestive with respect to way in which the relationship between State and society is likely to evolve. In short, we are going to see law become increasingly utilised as a means of realising a system of command and obedience, and the space for individual autonomy diminish. And the matter of compliance - and therefore, naturally, of accusation and prosecution - is therefore also likely to grow in prominence. That we should find ourselves in our current predicament, with people like Starmer and Harris occupying such prominent positions in our respective societies, is therefore entirely apt. It is, to repeat, just a coincidence. But is a deeply symbolic and important one.