An Idea of Law

One of the terrifying things, for me at least, about the smoking ban has been the ease with which non-smokers have been prepared to use the law to enforce their personal preferences. They didn’t like smoking, and so were happy to see it banned.

This has always struck me as a remarkably casual attitude towards law. And perhaps it goes some way towards explaining why we have so many laws these days. For many people, the law is just a way to get what they want. Don’t like smoking? Ban it. Don’t like drinking? Ban it. Don’t like this or that? Ban it with the full force of the law.

I don’t share this casual attitude to law. I tend to think that the use of the law is a nuclear option. It should only be used as a last resort, as a matter of dire necessity. Accordingly, I tend to think that there should be as few laws as possible.

Most of my thinking about law grows out of Idle Theory. In that view of life, human time is divided into busy necessary work time and idle free time. It’s only in their idle time that people are free to do what they like. The ‘idleness’ of anyone, or of a society, is the fraction of their time which is idle time. Economic growth is essentially growth in idleness. This is mostly achieved by developing tools which increase idleness. It was easier to chop down trees with stone axes than it was without them, and so our stone age ancestors lived idler lives than their untooled precursors. It’s even easier using a power chainsaw, as I witnessed just a couple of days ago, watching a man using one to slice through foot-thick trees in seconds like they were made of warm butter. The same is true of other technologies. It’s quicker to go from A to B by horse than it is on foot. It’s quicker still in a Ferrari. It was quicker to communicate by mail with somebody, than by travelling to meet them. It’s quicker still with a mobile phone. And so on. The use of these and other tools increases human idleness. And in their idle time people can, if they want, make and sell each other luxuries of one sort or other. Like art, music, literature, fashion clothes, etc. These luxuries don’t save anyone any time. Instead they use it up. But in our relatively idle modern society, it’s why we have all these luxuries. If we didn’t have any idle time, there would be none of them.

Morality, as I conceived it within this scheme of things, was all about trying to increase people’s idleness, or at least trying not to reduce it. ‘Good’ was whatever increased idleness. ‘Evil’ was whatever reduced it. To kill someone was to deprive them of all the remaining idle time in their life. To injure them was to make life harder and more painful for them. So also was it to rob them or defraud them or lie to them.

And the law was all about making restitution for injuries caused (i.e. reductions in idleness). If someone blocked a road, forcing travellers to take a longer way round, then the malefactor owed them restitution for their lost idle time.

But as this notion of law developed, it began to diverge from actual law as we moderns know it. There would, in the first place, be only One Law, which would be, very roughly, Don’t Cost Anyone Else Their Idle Time – Because If You Do You’ll Have To Pay It Back. There would not be a labyrinthine profusion of laws. All individual law suits would be about particular cases of the application of The One Law. e.g. as it applied to blocking roads. If a body of ‘case law’ arose about blocked roads, it would be because this happened so frequently as to have become routine, and could be dealt with expediently (i.e. quickly). By reference to previous cases, the trial would be over in 10 minutes rather than 10 days.

This sort of law also meant that something didn’t have to be specifically made illegal. There didn’t need to be a specific law which said: “Don’t block roads” before this became illegal. All that ever needed to be shown was that somebody had been cost their idle time. The case law that dealt with the specific case of blocked roads was just something lawyers used to speed up the judicial process.

There were other differences. Idle Theory’s emerging notion of law was not punitive. It did not demand an eye for an eye. There were no executions or floggings or prison sentences, because such punishments themselves further reduced the idleness of society over and above the original misdeed, and were a further crime.

Also, the malefactor’s intentions were of no consequence. It did not matter whether you intended to block the road, or did so inadvertently. All that mattered was that you did so, and it had cost other people some amount of their idle time.

Trivial infractions of the law would not be punished. If you stop your car in a road to let somebody out, you will cost the drivers delayed behind you only a few seconds of their time. It is a waste of the courts’ time to deal with such trivial cases.

There were other differences. There would, for example, be no libel laws. Anyone could say anything about anyone, because mere words have no direct effects on anyone’s idleness.

And a further difference would be that there would be no laws restricting what people did in their idle time. They could do anything they liked, so long as it did not breach the One Law. For any restriction upon idle time activities was a restriction upon freedom, and amounted to a reduction in idle time.

I did think that, beneath the One Law, there could be any number of lesser “club rules” that govern idle time activities, like playing football. People who join a football club agree to obey the rules of football: one single football, eleven players each side, no handling of the ball permitted, etc, etc. But breach of club rules would never result in anyone being brought before a court of Law. The most that could happen would be that people who broke club rules would be expelled from the club.

Anyway, that’s an incomplete outline of my own theory of law. And in some measure it explains why I so utterly condemn the smoking ban. For the smoking ban, as it affects pubs, is clearly a restriction on the idle time activity of pub-going. People in pubs should be able to do whatever the hell they like. Or, they should only be constrained to obey the “club rules” that apply to particular pubs. It should be no business of The Law to meddle in such affairs. It is the purpose of The Law to give people as much freedom (in the form of idle time) as possible, and then leave them to do what they will with it.

And in the case of the supposed health risks of passive smoking, which can be (if proven) construed to be injurious, these would almost certainly be classed as trivial infractions of the law, and not worthy of its attention. Nor would any blanket ban be allowable, even if it were sufficiently injurious to merit the formal attention of the judiciary. At most, smokers in pubs would be required to fork out a few pennies to visiting non-smokers to compensate them for their future lost life.

Nor could it be said that the bartenders in pubs are ‘workers’ performing necessary work. They are not. A bartender, in Idle Theory, is not a worker doing any sort of necessary work. He is an idler employed by other idlers, much like the referee on a football field.

I can’t pretend that I have developed a full and comprehensive theory of law. My idea of law is one which is full of all sorts of unanswered questions. e.g. exactly how does a murderer provide compensation to those he has murdered? And there remain deeper questions, like “What Is Justice?” Is justice restitution?

But, for all these flaws, I think it is a rather better idea of law than one which simply makes laws out of personal preferences (e.g. for no smoking).

About Frank Davis

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8 Responses to An Idea of Law

  1. Anonymous says:

    Ranty notes…
    …that it is even more frustrating when one discovers that all laws since 2000 are illegal. (Some say since 1911).
    When the House of Lords Act (1999) was given Assent, it instantly denied some hereditary Peers access to their seats in the House. This is contrary to Magna Carta 1297 and the Bill of Rights 1689. The outcome of this is to render all statutes passed by the HoL null and void.
    The short story? We are all blindly obeying a statute that has no basis in law.

  2. Anonymous says:

    Let me play devil’s advocate.
    1. It can’t just be idle time, there must be an element of quality. If I am robbed of money I still have the same idle time but I can’t enjoy certain activities that I might have done. [You might argue that the person robbed has to work longer to replace the stolen money – less idle time]
    2. In a comparable way, illness detracts from idle time quality. Fatal illness detracts from idle time.
    3. If someone makes me ill, they have robbed me of idle time or quality of idle time.
    4. If passive smoking makes people ill they have been robbed of idle time time etc.
    The issue here is that given your first principle, it is fairly easy to construct an argument to ban smoking in pubs.

  3. Frank Davis says:

    1. I’m not sure why you want to introduce an idea of quality. Is it necessary? As far as I’m concerned there’s just idle time and its negation, and they alternate with one another. Usually I think of them as each being long blocks of time, like the working week and idle weekend. But they often alternate with each other very rapidly. For example somebody who is busy driving a car is often able to conduct an idle conversation with a passenger at the same time. In doing so, they alternate between the two tasks, from one second to the next. ‘High quality’ idle time might be regarded as uninterrupted idle time, during which complete attention can be devoted to one activity. But this sort of ‘quality’ isn’t something separate and apart from idle and busy time. It’s just how they are blended together.
    2. A painful illness costs people their idle time. Pain is a sort of involuntary busyness. I suppose that one might speak of the ‘quality’ of a pain. A thumping headache is a slow drum beat of pain. Other pains may be sharper and more insistent. But once again there is an alternation of busyness with idleness, where ‘wellness’ is absence of busy, insistent pain.
    3. If someone robs me of something, they have taken it for their own use. This doesn’t happen if someone makes me ill. They don’t get better off at my expense like a robber does. It’s simply a loss to me, and not a gain to them.
    4. Some people don’t like the odour of tobacco smoke. It may make them feel ill, nauseated, choking, breathless, etc. That’s an immediate and temporary effect, which usually ends as soon as they leave. It isn’t usually this temporary effect that is classed as ‘unhealthy’, but the supposed long term consequences of breathing such smoke, in the form of subsequent cancer, heart disease, etc. Most people aren’t bothered about these supposed long term effects, for which there is little or no firm evidence anyway. It’s the immediate effects they don’t like. But what they don’t like is what other people (like me) actually do like. I like the smell of tobacco smoke.
    If they don’t like the smell of tobacco smoke, they may well not like the sound or content of other people’s loud conversation, which interrupts and distresses them just as much as tobacco smoke. They may not like the sound of the music playing on the juke box. That may make them feel ill too (There are a number of pieces of music I really hate). Is conversation and music also to be banned in pubs because some people don’t like it?
    But the main point is that sitting in a pub smoking and drinking and talking and listening to music is an idle time activity. It’s what people freely choose to do. If they don’t like those things, they don’t need to go to such noisy, smoky places. The same isn’t true of a working environment in which people are obliged to work. In such places it’s often reasonable to ban smoking, drinking, talking, and playing music, so that people can get on with their work without these interruptions. And very often all these things are prohibited in workplaces. Antismokers are always trying to make out that convivial pubs are just like workplaces, when they are not.
    Antismokers are like non-swimmers who go to swimming pools and demand that the pools be emptied of water, because they don’t like water which makes them cough and splutter just like tobacco smoke, and because deep water is very dangerous stuff in which people can (and very often do) drown. In this manner they negate the purpose of a swimming pools. And in this manner they can negate the purpose of more or less any similar establishment. e.g. a dance hall, or skating rink.
    Finally, is there ever a case for a complete ban on anything? People who live next to a noisy pub may be continually interrupted by noise, kept awake, stressed, and made unwell. But is the only solution a ban? Another solution might be for such noisy establishments to pay regular compensation to their neighbours for distress caused. The same might apply to airports. Or to any other activity which causes distress in the form of sounds or odours or vibrations.

  4. Frank Davis says:

    Re: Ranty notes…
    You may well be right. But you’re invoking yet another, and possibly completely different, idea of law here.

  5. Anonymous says:

    1. I introduce the idea of quality because I want to record that idle time can be differentiated by other factors than the purely temporal. I thought that you might object so I added the bit in brackets in an attempt to convert “quality” to lost idle time. If I intended to go to the cinema but am now unable, because of being robbed, then I am robbed of the idle time to replace the lost money.
    The point here is that idle time in and of itself is constrained by the accumulated resources that might be used to enjoy it. eg. There’s no point in celebrating 20 years of retirement if I haven’t accumulated sufficient pension to live.
    2. you acknowledge that illness detracts from idle time
    3. I’m not sure why the fact that the robber does not benefit makes any difference. The point at issue is that the person made ill was not consensually involved.
    And that’s the nub. Whilst I acknowledge that a person who knowingly enters a building where smoking is know to occur has usually given consent, the do-gooders develop elaborate explanations to explain why certain people’s consent (for the disapproved activity) can be discounted.
    And that’s precisely why the ban succeeded – it was argued that pub workers do not have the freedom to choose where they work and consequently cannot give consent. The argument about patrons was sidelined.
    I’m not trying to argue against your smoking stance. I’m trying to illustrate how idle time calculus doesn’t really help us escape from the do-gooder.
    More generally, I dislike the idea that we can improve mankind by some kind of moral or social calculus. The first thought that struck me was “idle time” is a form of utilitarianism. I’m haven’t thought enough to develop that idea, but it clearly shares in reductionism.

  6. Frank Davis says:

    And that’s precisely why the ban succeeded – it was argued that pub workers do not have the freedom to choose where they work and consequently cannot give consent. The argument about patrons was sidelined.
    Yet this ‘place of work’ is actually a place of leisure, and it is the job of bar staff to provide a convivial environment, serving people with drinks. To return to the swimming pool comparison, it’s like saying that lifeguards and swimming instructors can’t be allowed to do their jobs, because in so doing they put their life at risk. Which is far more true of swimming pools than it is smoky bars.
    I sometimes wonder whether there could be self-service bars in which all drinks are dispensed by machine. But the aim of the do-gooders has never been to protect bar staff, but instead to stop people smoking, and eventually, stop them drinking as well.
    I’m trying to illustrate how idle time calculus doesn’t really help us escape from the do-gooder.
    I wasn’t arguing that it did. I didn’t attempt to address that problem.
    More generally, I dislike the idea that we can improve mankind by some kind of moral or social calculus. The first thought that struck me was “idle time” is a form of utilitarianism. I’m haven’t thought enough to develop that idea, but it clearly shares in reductionism.
    Idle Theory most definitely is a form of Utilitarianism. It’s one in which ‘happiness’ has been replaced by ‘idleness’.
    And it is reductionist as well.
    But I don’t see it as a moral calculus that can ‘improve’ mankind. It just offers, in my view, another way of thinking about human life. I think that whenever anyone thinks about anything, they are always engaged in simplifying the picture before them in some way or other. And this is a form of reductionism. The real question is whether one form of reductionism is better or more instructive and useful than another. The alternative is to simply declare that the world is too complicated and variegated to ever be comprehended by any reductionist project, and that we will never be able to understand it, or do anything about it, and it will forever be whatever it is.

  7. Anonymous says:

    Don’t you think, though, Frank, that this tendency to expect “them” (whoever this mysterious “them” is whenever they are referred to) to sort out each and every little problem, grievance and argument is just a symptom of how infantilised supposed adults have become these days? It’s almost as if they don’t have the emotional or mental capacity to do anything even remotely difficult or awkward these days – whether it’s chastising their children, sorting out disputes with their neighbours, or negotiating their way round tricky work situations – without running off to get Mummy to sort it all out for them, or without whining so incessantly that Mummy goes off to sort it out just to shut them up. And of course, it suits all those tin-Hitlers in Parliament, local councils, the courts, the NHS and the police force etc only too well to be asked to look after all those poor, little, helpless proles, because that way they can impose all the laws, rules and regulations they want in the knowledge that those very same proles won’t complain, because they were the ones who demanded that “something should be done.”
    I was thinking the other day about how people keep saying how much more quickly children grow up these days, and it occurred to me that maybe children aren’t actually growing up any quicker than they ever did – it’s just that the adults have somehow got stuck in a rather childish way of thinking about life, and thus the gap appears to be becoming worryingly small. Which it is – not because children are growing up any faster, but because for a generation or so, many adults haven’t had to progress emotionally much beyond childhood themselves.

  8. Frank Davis says:

    Yes, adults have been infantilised. And children have been promoted to adulthood, handing out parking tickets. It’s an upside down world.

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