Hildegarde

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.