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Interpretation

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One of those books that have been lying around my house for a while without my being able to get to them is a volume from the Yale University Press of the major works of John Locke.  The first of these is the First Treatise of Government, which is one of those odd things.

I don’t mean the book is itself odd, although it would probably sound odd to most modern readers.  I mean that it exists in the Canon in a kind of limbo.

The Two Treatises of Government were published more or less together and were considered, in their time, to be a whole. 

The Second Treatise of Government is the work that outlines Locke’s political theory, and that is the first expression of the idea of the social contract–a social contract with as many distinct differences with Rousseau’s later one as the American Revolution had with the French.

The First Treatise of Government is something else.  It is Locke’s attempt to systematically disprove the idea that Scripture supports that theory of government we call the “divine right of kings.”

And that’s where the book lands in limbo.  Virtually anybody who makes his way through a halfway decent education in the West will have been asked to read the Second Treatise of Government, but almost nobody will have been asked to read the First.

And you can see why that would be so.  For the past century or so, and into the foreseeable future, the issue of the divine right of kings has been definitively settled.  No developed country on earth considers monarchy to be an acceptable and legitimate form of government, except in extremely attentuated forms.  We can describe the reign of Queen Elizabeth II of England a lot of ways, but “divinely instituted absolute power over her realm” is not one of them.

Still, the work is interesting to read, and for reasons that can sometimes be tangential to Locke’s main point.  For instance–if Queen Victoria wanted some back up for her position that the use of anesthetics in childbirth was not contrary to Scripture, she could have found it here.  The early feminists could have found here an argument against the idea that the Bible granted men power over their wives in perpetuity, too.

What interests me here, however, is that the book progresses in the way that all works of literary criticism and textual interpretation progress, and it therefore has some bearing on the post yesterday, and the replies to it.

So I’ll try to use Locke’s method, and start here.

The first thing concerns the contention that the phrase “Products must be safe and effective” constitutes a law in clear and simple language.

It doesn’t.

As the writers themselves said, the possibilities for interpretation are endless.

No statement for which the possibilities of interpretation are substantial is “clear” in any sense whatsoever.

And what should have been clear was the statement in my post the aim of the kind of legislation I’m asking for is to limit possible interpretations to the smallest number possible. 

“Products must be safe and effective” is not a law written in clear and simple language.  “Mayonaisse must be kept refrigerator at a temperature of 40 degrees Fahrenheit” is.

There is only one reason to write a law like “Products must be safe and effective,” and only one reason why the US Courts would allow it to stand–to give the regulatory agencies scope to write regulations.

But in what I suggested, regulatory agencies would not have the power to issue regulations.  All regulations would have to be passed by Congress.

In such a situation, the Courts would most likely do what they do with other vague legislation–strike it down as impossibly obscure and broad.

And, of course, no method is perfect–I’m not suggesting that this one is.  What I do think it is, is far less liable to being corrupted, and to facilitating corruption.

Corruption begins in interpretation. 

For society to function well, citizens must be able to read their laws, and understand them, and know what they have to do and how they have to behave to avoid committing a crime or a violation.

If they can’t do that, then the law is whatever the latest functionary says it is, and every one of us is liable for arrest and punishment at any time.

That’s a government of men and not of laws.

At the moment, huge whacking hunks of the US system operate in this way.  Did you abuse your child when you denied him television for a week because he  brought home an F in sixth grade math?  It’s up to the social worker’s “best professional judgment.”  Did you discriminate on the basis of race by insisting on an employment test that requires higher level mathematics to pass, which then rejects a larger percentage of black applicants than white ones?  It’s up to the EEOC to decide.  You can’t anticipate what their ruling will be, because it will be based not on facts but on the “best professional judgment” of individuals.

Such a system will, I guarantee you, be corrupt.  It is  not a disaster waiting to happen, but a disaster in progress.  It is the reason why nobody will prosecute the Wall Street bankers and the kid on your block who was carrying a little baggie of marijuana will go to jail for five years.

It is what causes inequality in the only way in which inequality really matters in a political sense.

Interpretation is what causes us to be unequal before the law. 

And yes, of course, I know that some interpretation will always be necessary, and that we will never get rid of it altogether.

That doesn’t mean we shouldn’t be trying to get rid of it altogether, and to get rid of it as far as possible, starting now.

 

Written by janeh

August 20th, 2012 at 8:52 am

Posted in Uncategorized

5 Responses to 'Interpretation'

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  1. Hear, hear! As perhaps an amplification: for the first century or century and a half of US history YHE big bill was the tariff–thousands of items listed individually, and different rates depending on what country the stuff came from. It was notorious. It slanted toward or away from regions, states and congressional districts. Congressmen took bribes from interested parties, or acted out of sheer ignorance.

    But once the bill was passed, everyone knew what the rules were.

    Suppose today instead of shoving the whole business over to the FDA, once every two or three years, Congress had to vote item by item on “controlled substances?” Boffins could testify on why exactly the nation should ban ecstacy, cyclamates and LSD, restrict heroin, tobacco and alcohol and leave chocolate, white sugar and funnel cakes open to all parties. It would be messy. It would be corrupt and a certain amount of the results would be just plain wrong. But it would be settled, and former FDA amployees might whistle for private-sector jobs speaking fees “cosultations.” And the congressmen who voted for especially preposterous restrictions would have to answer for then in their next campaigns.

    And keep in mind that while tariffs were probably the dirtiest part of the national government in 1900, “controlled substances” are about the cleanest part of the present mess. The banking and accounting rules are much worse.

    robert_piepenbrink

    20 Aug 12 at 7:15 pm

  2. What I find hard to understand about the American system is the “earmark” system which, if I understand it correctly, enables congressmen to direct government funds to their own constituencies’ pet projects by burying the provision in seemingly totally unrelated legislation.

    That seems to me to be the very foundation of corruption.

    Mique

    20 Aug 12 at 7:48 pm

  3. Mique? If you look back at the post before this one, you’ll see that one of the pts was that bills would have to be short so that nobody could bury little off-topic provisions in them. In other words, no earmarks.

    janeh

    20 Aug 12 at 8:00 pm

  4. We got an entire government out of about 8000 words (Dec of Ind, Constitution & amendments). I think bills should be no longer than that.

    In addition to having all laws passed by legislatures, and leaving all interpretation to the courts, where it belongs, we should insist that our government, all three branches, be subject to EXACTLY the same conditions and laws as the rest of us. No exempting Congress from the minimum wage law, no special health care, etc.

    And I think we’d be a lot better off if we returned to amateur government, as exemplified by the founding fathers. No one should be able to make a career out of “public service.” One job, pick it, run for it, serve out terms, and go back into private life.

    Oh, and I”m in total favor of reducing the presidency to one six-year term. We only get six good years out of them anyway, what with re-election campaigning.

    There. All fixed. ;)

    Lymaree

    20 Aug 12 at 10:26 pm

  5. Thanks, Jane. I must have missed that bit.

    Mique

    20 Aug 12 at 11:18 pm

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