Open letter in response to a Radio 4 talk by Helena Kennedy – 6th Aug 2012
Dear Helena Kennedy,
Your intriguing talk on "Capital Justice" must (I think) have been chopped around by the producers, inserting unnecessary quotes and bits of even less necessary music. I suggest this with some humility for I acknowledge my weak ability to follow a complex argument at first hearing (and with enormous respect for your integrity, and expertise).
I suppose you might have started your essay with a question like one of the following:
[a] Could the law have prevented (or punished) the injustices of the financial crash?
[b] Surely it is (or could be made to be) illegal for clever people to take money off foolish people (as, for example, laws that regulate the sale of patent medicines).
You might have decided early on that you would end your piece with the Adam Smith quote: "Beneficence....is less essential to the existence of society than justice." This especially as the other authors you quote en route tend to contradict each other.
I think you hinted at, but did not state, another proposition that deserves italics: Commercial companies must never be allowed to get bigger than the Nation State; if they cannot be confined (and controlled), the Nation States must themselves combine till they have sufficient power to exercise control.
You (successfully) pointed out that people cannot be punished for behaving badly; only for breaking the law; and that the law is made by judges. Yet I would offer another proposition which I submit you significantly fudged: Democracy and "Mob-Rule" are not in conflict; they are in fact the same thing. Justice and morality are generated by the 'demos'. Laws are made by judges in response to justice and morality.
How might you traverse successfully from the question at the beginning to the Adam Smith quote at the end without creating the feeling of wandering in a dark forest seeming to pass the same landmarks over and over? No doubt you wanted to incorporate the quotations you had collected on your tape-recorder; but should you try to contrive a sequence progressively driving at one conclusion, or pair the quotations off so that they negate each other and amount to nothing, while successfully indicating the complexity of the situation?
Much of the miss-selling of mortgages and miss-classification of risk, the ill-considered acquisitions, investments and reward systems — perhaps these do not break the law. It is (after all) still legal to offer money at high interest (because at high risk) against the surety of title deeds (which bear no risk; you win if they continue to pay, you win even better if they default). It is still legal to sell lottery tickets (which is simply taking money off people, giving half back and keeping the other half). Why is this not made illegal? Probably because it is too difficult to make laws that control all the tricky ways of making money, though there may be some lack of will among the law-makers.
However, there are laws against fraud in the United States of America (we heard), so surely also in Britain. And, if not, why not? To rate, as AAA, a bond that is plainly irrecoverable bad-debt, would seem to be fraudulent; so why no prosecutions in Britain? (Here you could usefully inform the lay listener: does the law have to show knowledge of the fraud to make it criminal? Is that impossible? Are there any prosecutions pending?) Paying taxes is legally required; are these taxes being rigorously pursued? If a bank is given public money, is that money ever returned to the State, with appropriate interest? (In which case, what is the problem?)
Could it be that Government is too friendly with the bankers, or too much in awe, or too dependent? Any such suggestion should be taken very seriously, and acted upon. But that (you might say) is a matter of politics, not law. Helena Kennedy loves the law. Some 200 years ago it was perfectly legal to drive a whole countryside to starvation simply by raising rents, and outlawing vagrancy. At the same time poaching a rabbit was made a serious crime simply by declaring the wild game on land to belong, not to nature, nor to the tenant farmer who raised the corn, but to the 'gentleman' who owned the land. Because the law was in the hands of the gentry. However, the law was changed; changed by the demos; changed painfully slowly, and only when the pain became unbearable. The law must go on changing.
Yours sincerely, Cawstein,