The Rule of Lawyers
Like the human hive of politics or the hunting grounds of the market economy, the legal landscape is an integral part of the institutional setting in which we live our lives. Like a true landscape, it is organic, the product of slow-moving historical processes – a kind of judicial geology. But it is also a landscape in the sense of ‘Capability’ Brown: it can be improved upon. And it can also be made hideous – even rendered a desert – by the rash imposition of utopian designs. Oriental gardens flourish in England and English gardens in the Orient. But there are limits to what transplantation can achieve.
Once-verdant landscapes can become desiccated through natural processes, too. Mancur Olson used to argue that, over time, all political systems are likely to succumb to sclerosis, mainly because of rent-seeking activities by organized interest groups.59 Perhaps that is what we see at work in the United States today. Americans could once boast proudly that their system set the benchmark for the world; the United States was the rule of law. But now what we see is the rule of lawyers, which is something different. It is surely no coincidence that lawyers are so over-represented in the US Congress. The share of senators who are lawyers is admittedly below its peak of 51 per cent in the early 1970s but it is still 37 per cent. Similarly, lawyers no longer account for 43 per cent of representatives in the House, as in the early 1960s, but at 24 per cent their share is still much larger than the equivalent figure for the House of Commons (14 per cent).60
Olson also argued that it can require an external shock – like a lost war – to sweep away the stifling residues of cronyism and corruption, and allow the rule of law in Bingham’s and Dworkin’s senses of the term to be re-established. It must fervently be hoped that the United States can avoid such a painful form of therapy. But how is the system to be reformed if, as I have argued, there is so much that is rotten within it: in the legislature, in the regulatory agencies, in the legal system itself?
The answer, as I shall argue in the next and final chapter, is that reform – whether in the English-speaking world or the Chinese-speaking – must come from outside the realm of public institutions. It must come from the associations of civil society. It must come, in short, from us: the citizens.
4. Civil and Uncivil Societies
Clearing the Beach
Nearly ten years ago I bought a house on the coast of South Wales. With its rugged, windswept Atlantic coastline, its rain-soaked golf courses, its remnants of industrial greatness and its green hills just visible through the drizzle, it reminded me a lot of where I grew up, in the West of Scotland: only slightly warmer, nearer Heathrow airport and with a rugby team more likely to beat England.
I bought the house mainly to be beside the sea. But there was a catch. The lovely stretch of coastline in front of it was hideously strewn with rubbish. Thousands of plastic bottles littered the sands and rocks. Plastic bags fluttered in the wind, caught on the thorns of the wild Burnet roses. Beer and soft-drink cans lay rusting in the dunes. Crisp packets floated in the waves like repulsive opaque jellyfish.
Where did it all come from? Some of it was clearly dropped by local youths, who seemed indifferent to the ruinous effect of their behaviour on the natural beauty of the land of their fathers. But much more seemed to come in from the sea. I began to read, with mounting horror, about the extent of offshore refuse dumping. It is a practice beyond the control of any government, regulator or law. Unlike a landfill site, the ocean is a free rubbish dump. Unlike the stuff earlier generations threw into it, plastic rubbish is neither biodegradable nor heavy enough to sink. Where it ends up is decided by the currents, tides and winds. Unfortunately for me, those of the Bristol Channel seemed intent on depositing a disproportionate share of all the trash in the North Atlantic in my backyard.
Dismayed, I asked the locals who was responsible for keeping the coastline clean. ‘The council is supposed to do it, down by here,’ one of them explained. ‘But they don’t do nothing about it, do they?’ This was not so much Under Milk Wood as Under Milk Carton. Infuriated, and perhaps evincing the first symptoms of an obsessive–compulsive disorder, I took to carrying and filling black bin-liners whenever I went for a walk. But it was a task far beyond the capacity of one man.
And that was when it happened. I asked for volunteers. The proposition was simple: come and help make this place look as it should; lunch provided. The first beach clear-up was a modest affair: no more than eight or nine people came, and not all of them stuck at the work, which involved backache and dirty fingers. The second was more of a success. The sun actually shone, as it sometimes – very occasionally – does.
It was when the local branch of the Lions Club got involved, however, that the breakthrough came. I had never heard of the Lions Club. I learned that it was originally an American association, not unlike the Rotary Club: both were founded by Chicago businessmen about a century ago, and both are secular networks whose members dedicate time to various good causes. The Lions brought a level of organization and motivation that far exceeded my earlier improvised efforts. As a result of their involvement, the shoreline was transformed. The plastic bottles were bagged and properly disposed of. The roses were freed from their ragged polythene wrappings. One measure of our success was a marked increase in the number of locals and visitors walking along the coastal path.
My Welsh experience taught me the power of the voluntary association as an institution. Together, spontaneously, without any public sector involvement, without any profit motive, without any legal obligation or power, we had turned a depressing dumping ground back into a beauty spot. And every time I wander down for a swim, I ask myself: how many other problems could be solved in this simple and yet satisfying way?
In the previous chapters, I have tried to prise open some tightly shut black boxes: the one labelled ‘democracy’, the one labelled ‘capitalism’ and the one labelled ‘the rule of law’. In this final chapter, I want to unlock the black box labelled ‘civil society’. I want to ask how far it is possible for a truly free nation to flourish in the absence of the kind of vibrant civil society we used to take for granted. I want to suggest that the opposite of civil society is uncivil society, where even the problem of anti-social behaviour becomes a problem for the state. And I want to cast doubt on the idea that the new social networks of the internet are in any sense a substitute for real networks of the sort that helped me clear my local beach.
The Rise and Fall of Social Capital
‘America is, among the countries of the world,’ declared Alexis de Tocqueville in the first book of his Democracy in America:
the one where they have taken most advantage of association and where they have applied that powerful mode of action to a greater diversity of objects.
Independent of the permanent associations created by law under the names of townships, cities and counties, there is a multitude of others that owe their birth and development only to individual will.
The inhabitant of the United States learns from birth that he must rely on himself to struggle against the evils and obstacles of life; he has only a defiant and restive regard for social authority and he appeals to its authority only when he cannot do without it . . . In the United States, they associate for the goals of public security, of commerce and industry, of morality and religion. There is nothing the human will despairs of attaining by the free action of the collective power of individuals.1
Tocqueville saw America’s political associations as an indispensable counterweight to the tyranny of the majority in modern democracy. But it was the non-political associations that really fascinated him:
Americans of all ages, all conditions, all minds constantly unite. Not only do they have commercial and industrial associations in which all take part, but they also have a thousand other kinds: religious, moral, grave, futile, very general and very particular, immense and very small; Americans use associations to give fêtes, to found seminaries,
to build inns, to raise churches, to distribute books, to send missionaries to the antipodes; in this manner they create hospitals, prisons, schools. Finally, if it is a question of bringing to light a truth or developing a sentiment with the support of a great example, they associate.2
This is a justly famous passage, as is Tocqueville’s amusing contrast between the way American citizens banded together to campaign against alcohol abuse and the approach to social problems in his native land: ‘if those hundred thousand [members of the American Temperance Society] had lived in France, each of them would have addressed himself individually to the government,’ begging it to oversee the nation’s wine bars.3
Tocqueville did not exaggerate nineteenth-century America’s love of voluntary associations. To give just a single example, from the historian Marvin Olasky, the associations affiliated with 112 Protestant churches in Manhattan and the Bronx at the turn of the twentieth century were responsible for forty-eight industrial schools, forty-five libraries or reading rooms, forty-four sewing schools, forty kindergartens, twenty-nine savings banks and loan associations, twenty-one employment offices, twenty gymnasia and swimming pools, eight medical dispensaries, seven full-day nurseries and four lodging houses. And this list excludes the activities of Roman Catholic, Jewish and secular voluntary associations, of which there were also plenty.4 Continental Europe, as Tocqueville rightly noted, was never like this. In his book The Moral Basis of a Backward Society, Edward Banfield contrasted the ‘amoral familism’ of a southern Italian town he called ‘Montegrano’ with the rich associational life of St George, Utah. Same terrain, same climate – different institutions. In Montegrano, there was just one association: a card-playing club to which twenty-five upper-class men belonged. There was also an orphanage, run by an order of nuns in an ancient monastery, but the local townspeople did nothing to assist their efforts or help maintain the crumbling cloister.5
Yet, just as Tocqueville had feared, the associational vitality of the early United States has since significantly diminished. In his best-selling book Bowling Alone, Robert Putnam detailed the drastic declines, between around 1960 or 1970 and the late 1990s, in a long list of indicators of ‘social capital’:
attendance at a public meeting on town or school affairs: down 35 per cent;
service as an officer of a club or organization: down 42 per cent;
service on a committee for a local organization: down 39 per cent;
membership of parent–teacher associations: down 61 per cent;
the average membership rate for thirty-two national chapter-based associations: down almost 50 per cent; and
membership rates for men’s bowling leagues: down 73 per cent.6
As Theda Skocpol argued in her 2003 study Diminished Democracy, organizations like the Elks, the Moose, the Rotarians and indeed my friends the Lions – which once did so much to bring together Americans of different income groups and classes – are in decline in the United States.7 In a similar vein (though from a very different ideological point of origin), Charles Murray’s superb 2012 book Coming Apart makes the argument that the breakdown of both religious and secular associational life in working-class communities is one of the key drivers of social immobility and widening inequality in the United States today.8
If the decline of American civil society is so far advanced, what hope is there for Europeans? Britain has sometimes been represented as the exception to Putnam’s ‘law’ of declining social capital. Like the United States, the United Kingdom experienced a golden age of associational life in the nineteenth century, ‘the age [in the historian G. M. Trevelyan’s words] of Trade Unions, Cooperative and Benefit Societies, Leagues, Boards, Commissions, Committees for every conceivable purpose of philanthropy and culture’. As Trevelyan joked, ‘not even the dumb animals were left unorganized’.9 In 1911 the gross annual receipts of registered charities exceeded national public expenditure on the Poor Law.10 The absolute number of cases of hardship reviewed by charities was remarkably constant between 1871 and 1945.11 The implementation of William Beveridge’s recommendation for a centrally administered system of national insurance and healthcare radically altered the role of many British ‘friendly societies’, either turning them into agencies of government welfare or rendering them obsolete.12 But in other ways British associational life remained vital. In the 1950s sociologists were still impressed by the resilience of this network of voluntary societies. Indeed, according to Peter Hall, it largely survived even the 1980s, the sole exceptions being traditional women’s organizations, some youth organizations and service organizations like the Red Cross, which did suffer declines of membership.13
However, on closer inspection, this story of resilience looks questionable. The reports of the Registrar of Friendly Societies, which began in 1875 and continued until 2001, allow us to trace over the long run the number and membership of friendly societies (such as working men’s clubs), industrial and provident societies (such as co-operatives) and building societies (mutually owned saving and mortgage-lending associations). In absolute terms, the peak in the number of such societies was in 1914 (36,010) and the peak in membership in 1908 (33.8 million) – at a time when the population of the United Kingdom was just over 44 million. By contrast, there were just over 12,000 societies in 2001. Membership figures for that year are available only for the 9,000 industrial and provident societies and amount to 10.5 million, compared with a total population of 59.7 million.14 The Manchester Unity of Oddfellows, an umbrella organization for friendly societies, had 713,000 members in 1899, compared with 230,000 today.15 Moreover, a comparative study based on the World Values Survey showed Britain slipping from ninth to twelfth place in the international league table for voluntarism, as the share of the population claiming to be members of one or more voluntary associations fell from 52 per cent in 1981 to 43 per cent in 1991.16 The most recent survey data indicates a further decline (see Figure 4.1) and indeed suggests that even more Britons than Americans are now ‘bowling alone’.
Figure 4.1 Membership of voluntary organizations in the UK and US, 2005–2006
Source: World Values Survey Association, World Value Survey, 1981–2008, official aggregate v.20090902 (2009): http://www.wvsevsdb.com/wvs/WVSIntegratedEVSWVSvariables.jsp?Idioma=I.
The decline of British ‘social capital’ has manifestly accelerated. Not only has membership of political parties and trade unions plummeted, long-established charities have seen ‘a marked drop in numbers’. Membership of any type of organization was also lower in 2007 than in 1997. Remarkably, according to the National Council of Voluntary Organizations, just ‘8 per cent of the population [accounts] for almost half of all volunteer hours’.17 Charitable donations show a similar trend. Although the average donation has gone up, the percentage of households giving to charity has fallen since 1978 and more than a third of donations now come from the over-sixty-fives, compared with less than a quarter some thirty years ago. (In the same period, the elderly have gone from 14 per cent to 17 per cent of the population.)18 The final publications of the Citizenship Survey for England made for truly dismal reading.19 In 2009–10:
Only one in ten people had any involvement in decision-making about local services or in the provision of these services (for example, being a school governor or a magistrate).
Only a quarter of people participated in any kind of formal volunteering at least once a month (of which most either organized or helped to run an event – usually a sporting event – or participated in raising money for one).
The share of people informally volunteering at least once a month (for example, to help elderly neighbours) fell to 29 per cent, down from 35 per cent the previous year. The share giving informal help at least once a year fell from 62 to 54 per cent.
Charitable giving continued its decline since 2005.
What is happening? For Putnam, it is primarily technology – first television, then the inter
net – that has been the death of traditional associational life in America. But I take a different view. Facebook and its ilk create social networks that are huge but weak. With 900 million active users – nine times the number in 2008 – Facebook’s network is a vast tool enabling like-minded people to exchange like-minded opinions about, well, what they like. Maybe, as Jared Cohen and Eric Schmidt argue, the consequences of such exchanges will indeed be revolutionary – though just how far Google or Facebook really played a decisive role in the Arab Spring is debatable.20 (After all, Libyans did more than just unfriend Colonel Gaddafi.) But I doubt very much that online communities are a substitute for traditional forms of association.
Could I have cleared the beach by ‘poking’ my Facebook friends or creating a new Facebook group? I doubt it. A 2007 study revealed that most users in fact treat Facebook as a way to maintain contact with existing friends, often ones they no longer see regularly because they no longer live near by. The students surveyed were two and half times more likely to use Facebook this way than to initiate connections with strangers – which is what I had to do to clear the beach.21
It is not technology that has hollowed out civil society. It is something Tocqueville himself anticipated, in what is perhaps the most powerful passage in Democracy in America. Here, he vividly imagines a future society in which associational life has died:
I see an innumerable crowd of like and equal men who revolve on themselves without repose, procuring the small and vulgar pleasures with which they fill their souls. Each of them, withdrawn and apart, is like a stranger to the destiny of all the others: his children and his particular friends form the whole human species for him; as for dwelling with his fellow citizens, he is beside them, but he does not see them; he touches them and does not feel them; he exists only in himself and for himself alone . . .
The Great Degeneration: How Institutions Decay and Economies Die Page 9
