Culture War · Liberalism

The problems with legalism

We live in a country in which state and federal governments constantly pass new laws. At time of writing, the federal government has passed 24 Acts for the year, this being exclusive of amendments made to other Acts and legislative instruments.

These laws are passed not only with frequency but copious detail. The Fair Work Act 2009 (Cth), for instance, is Australia’s leading source of employment and industrial relations law. From the beginning of this Act, up until section 536H, are 135 542 words contained therein. Bear in mind this Act continues to section 800, before there is further space for various regulations. The total number of words in the Fair Work Act thus far exceeds this figure cited.

Such laws are so expansive, essentially, as to comprise an attempt by government to wholly prescribe the bounds for human actions in the field of which they deal. In the Fair Work Act, these bounds on our actions are expressed in the form of entitlements and obligations: to employers, employees, unions, independent contractors and other relevant actors.

The problems which stem from government putting a boundless range of matters to law–legalism–have been starkly brought home by recent events at work. There is a client, who:

  • Is an honest, simple and small businessman, who for some time paid his employees a substantial and comfortable living wage, through a flat rate;
  • This client was not aware of the full range of employee entitlements flowing from Modern Awards established by the Fair Work Act;
  • Some of his employees were made genuinely redundant during the *government induced* economic recession of 2020;
  • Upon being made redundant, these employees brought underpayment claims for years worth of Award entitlements; and
  • These claims are the result of trade union involvement, who as to be expected, are self-righteous about the entire affair.

This file was redolent of the criticisms which Patrick Deneen applied to legalism, in Why Liberalism Failed:

Delinked from any conception of “completion”–telos or flourishing–and dissociated from norms of natural law, legalism results in a widespread effort to pursue desires as full as possible while minimally observing any legal prohibition. As Solzhenitsyn noted, “If one is right from a legal point of view, nothing more is required, nobody may mention that one could still not be entirely right, and urge self-restraint or a renunciation of these rights, call for sacrifice and selfless risk: this would simply sound absurd. Voluntary self-restraint is almost unheard of: everyone strives toward further expansion to the extreme limit of legal frames.” Solzhenitsyn cut to the heart of liberalism’s great failing and ultimate weakness: its incapacity to foster self-governance.

These remarks, considered alongside the aforementioned underpayment file, bring to mind some major issues with legalism. These issues include:

1. Because our legislative framework is so expansive, people take it as a sufficient guide to moral behaviour. Taking the law as a sufficient guide to moral behaviour, in their actions, people exclusively follow the letter of the law.

2. Lying, greed, disloyalty and acquisitiveness are incentivised on the part of participants in the legal system, in so far as these traits are not inconsistent with their legislative entitlements and obligations.

3. The complexity of human affairs renders it impossible to put to writing any law covering and prohibiting the full range of socially harmful behaviours.

For these reasons, the solution to our culture rot is clearly not to pass further laws. Laws passed tend to undermine our capacity for self-governance; subsequently, they continually erode the remaining social fabric.

Instead and if there can be a solution to our culture rot, it would likely involve renewing the current sources of cultural malaise–the media, ABC, big business, universities, schools, movies, sporting codes, bookstores and religious institutions.

2 thoughts on “The problems with legalism

  1. When you look at Roman law, it was based on custom and was more based on moral code: in other words, laws were so general and so widely applicable that there were no holes in the law to negotiate. But modern understanding of law is literal and particular, leading to rather excessive legislation.

    1. Yes in modern times, everything that is unlawful is particularised as such.

      By omission, our legal system thus incites many negative behaviours that are not particularised eg. Acquisitveness, dishonesty, disloyalty, greed, etc.

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