Wednesday, June 21, 2006

Legal and moral plunder

Where it had once been understood that to abide in society one must accommodate one's own judgment of society to the diversity of individual preferences and choices contained therein, the past century has seen an inversion of that accord — one is now invited to understand that individual preferences and choices can be compelled to accommodate to a monopolistic judgment of society. The art of arguing the merits of one's moral judgment to others is only desultorily practiced now in lip service to democratic notions of government by consent, but a government bloated with unelected officials and undemocratic institutions finds that it obliges the reach of its own monopoly of legal authority by obliging the moral monopolist — the objectives of both parties are mutually sympathetic and reinforcing. So it comes about that the activist reformer has so many democratic-in-name-only and outright undemocratic methods at his disposal that the reward of appropriating moral authority as a legally enforced default makes their use much more tempting and profitable than any attempt at moral persuasion.

For example, the London Free Press reports that anti-smoking advocates in Ontario are pushing the provincial government to sue tobacco companies for smoking-related health costs. London area activists are among those who signed a letter agitating for the action, including Graham Pollett, medical officer of health for Middlesex-London, UWO law professor Robert Solomon, and Perth County medical officer of health Rosanna Pellizzari who said:

"It's a matter of justice."
Litigation has become one such popular technique of subverting democracy to enforce moral claims on society. But while litigation has a positive role and a proper place in common law as an instrument of obtaining justice and protecting individual property and liberty, the procedural and conventional restraints that once bound it to those goals have been abandoned. Contrary to Pellizzari's claim, anti-smoking advocates are pursuing anything but justice. Garfield Mahood, spokesman for the Non-Smokers' Rights Association, is at least inadvertently honest about it:
"This is not a legal problem. It's a problem involving the need for political leadership."
…by "political leadership" he means political agendas pursued through the courts because the legal problem has already been worked out in advance in favour of the agenda. Mahood demonstrates that the activists serve their political masters, in return for dominion in the pronunciation of public morality.

Jurisprudence in common law, descended from the Magna Carta, strived to protect liberties while pursuing justice by removing accused parties from the hands of legislative powers into the hands of peers of the accused — trial by peers — who determine whether conviction under the legislative power is an article of consent rather than of arbitrary tyranny. First, what justice can be recovered if the legislative powers are themselves a litigant in a process under which they control the laws of evidence and instruction, effectively requiring a jury or panel to decide conviction on whatever evidence it pleases to give or withhold? Second, while this right to a trial by peers under common law has been procedurally weakened for everyone, corporations are particularly not afforded the least opportunity to one. If corporations are to be regarded as single entities for the purpose of litigation, consent to the law must be abetted and tyranny hindered by a trial by similar entities, and if this seems an absurd proposition, a reasonable facsimile can be provided by entrusting individual representatives of similar entities with the task. Juries or panels composed of anyone else cannot consent to legislative powers that do not compel themselves as well if consent is to have any meaning. Otherwise, the exercise invites — purposefully, in most instances — deliberation founded on sentimentality or anti-corporate prejudices rather than reason. Third, the legislative powers have facilitated the prosecution of third parties in disputes, contesting of course any notion that the exercise was founded on reason in the first place. Spurious associations between cause and effect are encouraged by legislation and courts to permit third parties like tobacco companies to absorb and absolve responsibility for the actions of others, like smokers. No amount of propaganda can attribute the choices of smokers to the actions of tobacco companies without suggesting that individuals are possessed of no will or rational judgment of their own — which would make them incapable of deciding the question of consent to legislative powers anywhere else but the modern courtroom.

These corruptions of justice lend tobacco company lawsuits the same air of farce about them as Soviet showtrials. The inevitable outcomes of these lawsuits serve to legitimize the government's role in spheres outside its proper function, public morality and public health care. A monopoly interest in the health of its citizens becomes the rationalization for acting as a litigant on behalf of its interest in an exercise set up in advance to decide in its favour, which in vicious turn rationalizes the monopoly interest in the first place. There is no place for debate on the place of legislative powers in public morality or public health care in these venues, and there is no escape from it either.

In addition, the government responds to and perpetuates its own incentives by using these lawsuits to cover the costs of its interests. Mahood continues:
"We have to say, 'You have our money, and we want it back.'"
Tobacco companies have their own money, and using a corrupted legal system over which the government has no small measure of authority to lay claim to that money is nothing less than an attempt at legal plunder. One thing is certain: we will never see any of that money.

In related news, Kentucky Fried Chicken is being sued in the United States for using partially hydrogenated oil.

1 Comment:

Anonymous said...

By shortening the life of smokers the tobacco companies have actually saved the taxpayers money. Better to have smokers die at a relitively early age than live to be old and need all types of surgeries for joints and long term care in hospitals and nursing homes.