La Rule of law (malamente tradotto in italiano con “Stato di diritto”) letteralmente significa sovranità della legge ed è l’antitesi alla rule of men (la sovranità degli uomini). L’opposizione fra la rule of law e la rule of men è quindi quella che c’è fra una legge non arbitraria (la legge naturale) e una arbitraria (la “legge” positiva).
Purtroppo, oggi il termine rule of law ha cambiato significato e questo cambiamento di significato riflette quello del concetto di arbitrarietà della legge.
Una legge è logicamente non-arbitraria se non può essere fatta o disfatta per volontà di qualcuno, indipendentemente dal fatto che questo qualcuno sia una maggioranza (p. es. rappresentativa). Oggi, tuttavia, una legge viene generalmente considerata non-arbitraria (non se non può essere fatta o disfatta per volontà di qualcuno, ma) se è fatta da una maggioranza rappresentativa secondo le procedure burocratiche previste. Questo è logicamente assurdo in quanto non c’è nulla, nel fatto che una legge sia decisa da una maggioranza e seguendo particolari procedure burocratiche, che possa renderla meno arbitraria.
La rule of law (sovranità della legge) si oppone alla rule of men solo se la law in questione non è fatta dagli uomini: cioè solo se è la legge naturale. La sovranità della “legge” positiva, essendo questa sempre fatta dagli uomini, è sempre la rule of men, cioè l’antitesi della rule of law.
According to recent UK legislation imposed to enforce the new hotel quarantine rules, those who travel to red-listed countries such as Portugal, for example, and fail to report it, risk up to ten years in jail.
In a recent article, Lord Jonathan Sumption (a former judge of the UK Supreme Court) defined Matt Hancock, the minister who’s behind the hotel quarantine rules and this new legislation, a “tyrant”. Like all tyrants, Lord Sumption argues, Mr. Hancock believes that the end justifies the means: he will stop at nothing in order to pursue this end, whatever it takes (Draghi style): i.e. without any regard to the liberties, lives, wealth and humanity which are crushed in the process.
In a previous article, Lord Sumption had already pointed out that new Covid legislation made the UK a “police state” and was the expression of a collective “hysteria”: surely, these are words which must have not been easy to write for a person who until only a few years ago was a judge of the UK Supreme Court.
However laudable are Lord Sumption conclusions, his reasoning expresses some fundamental, logical inconsistencies which are quite typical of those who would like to defend liberty but cannot make the necessary intellectual step to actually do it.
In fact, at one point Lord Sumption states that “There are no absolute principles, but only pros and cons”.
In a truly beautiful article, Jonathan Sumption (a former judge of the UK supreme court) makes two statements.
The first is that today the UK is a police state: “What is a police state? It is a state in which individuals are answerable to the police for the most routine acts of daily life. It is a state in which the police and not the law decide what is allowed. It is a state in which people have to hide their doings from their neighbours for fear of the twitching curtain and anonymous call to the police. It is a state in which ministers denounce activities of which they disapprove and the police are their compliant instruments. … We are unfortunate to live at a time of national hysteria, when that tradition [of of rule of law] has been cast aside and every one of these classic symptoms of a police state can be seen all around us”
The second statement is that a police state is opposite to the rule of law: “If the law says that it is reasonable to go out to take exercise, it is not for a policeman to say that it isn’t. If the law does not forbid driving somewhere to take exercise, then it is not for the police to forbid it. … It is not the function [of the police] to enforce the wishes of ministers. It is not [its] function to do whatever is necessary to make government policy work. [Its] function is to apply the law. If the law is not tough enough, that is not a matter for them but for ministers and Parliament“.
While the first statement is not problematic, the second one in my opinion is.
Like many other articles of The Telegraph, this beautiful one by Allison Pearson, where she criticizes the government for violating liberty too much rather than too little, would be almost unthinkable in any Italian newspaper.
However, the very concept of violating liberty “too much” is part of a paradigm which itself is incompatible with liberty (scientifically defined) and which, in the long run, inevitably contributes to increase (and not to decrease) the legal violations of liberty.
For the same reasons why you cannot logically steal “too much” or “too little” (you can steal a lot or a little, but either you steal or you don’t), you cannot violate liberty “too much” or “too little”. Either you violate liberty or you don’t. Either you are in favour of a social structure in which the government can legally do things that individuals cannot do without committing a crime, or you’re against it. It’s not about seeing the world in black and white: it’s about applying logic where logic is needed. Continue reading →
While reading Edward Snowden’s Permanent Record, I was astonished by the qualities of the author. Notwithstanding his understatement, these qualities clearly emerged from the details of his story: his courage, above all. His intelligence. His computing abilities, which to me seem almost supernatural. His rectitude. His profound kindness that is revealed in every line of his book. His great humaneness.
While each one of these qualities in itself would have already been extraordinary because of its intensity, the contemporary presence of all of them in the same person at the same time made me rethink the limits of what I once considered to be humanly possible.
In this article I will not discuss these qualities. I think that the best way to appreciate them is to buy the book and read it.
I’m so much humbled by them and by Snowden’s purely heroic gesture that I’m instinctively inclined to censor my own criticism of some aspects of his thought that I believe are logically inconsistent. In fact, in relation to the choices, the capabilities, the actions and the qualities of a hero of this magnitude, these inconsistencies have such little importance that they appear to be almost negligible. However, they are about the very ideas on which his gesture was based: namely, the very concept of privacy and the difference between what is legal and what is right. Therefore, perhaps a discussion of these inconsistencies may be not entirely useless. In addition, I do not believe that self-censorship would be the best way to homage the person who, at the beginning all alone, has defied the most powerful nation in the world (and its allies) to denounce its mass surveillance programs and start a debate on these issues.
Criticizing from the comfort of one’s desk, on a theoretical level, the ideas of someone who risked his own life to defend them (and who’s living in exile for having defended them), is not usually an aesthetically beautiful thing to do, I believe. However, in this particular case, I consider this criticism a tribute to the man who has risked his own life to start a much-needed debate on privacy and on the difference between what is legal and what is right. This criticism is for me a way to acknowledge the debt that I, together with my family, have with Edward Snowden and that I know I will hardly ever manage to pay back.
“Banking secrecy has had its day,” declared Pierre Moscovici, the French minister for the economy, in support of the attempt by the governments of ten (for now) European countries to put in place, “possibly within the year,” as the La Stampa newspaper reported, “a multilateral platform for the automatic exchange of bank account information which will make it possible to effectively curb tax evasion.” The history of principles that have ‘had their day’ is a long one and it invariably marches to the beat of the States’ ever-increasing need for cash.
If every night at the same time you looked at a planet in the sky you would notice that, night after night, its position generally tends to move Eastwards. At a certain point, however, that planet will gradually stop, invert the direction of its motion (it will start moving Westwards), then it will stop again and invert once more the direction of its motion (it will start moving Eastwards again), creating a sort of loop. This phenomenon, which is called “retrogression of the planets”, is caused by the fact that that planet’s orbit is around the (“steady”) Sun, not around the (moving) Earth from which you are watching it. There is no retrogression: this phenomenon is created by a reference system centred on the Earth rather than on the Sun. Before Kepler, that is in the geocentric astronomic model, this phenomenon was a problem, a very serious one. (Geocentric) astronomy was resting on the Platonic assumption of uniform circular motions. If the retrogression of the planets could not be explained, and could not be explained within the limits of that assumption, the geocentric astronomic model would fall – and with it cosmology, physics, chemistry, religion, culture, political power, scientific authority, etc. Continue reading →