Managerialism versus the rule of law

Two stories:
1. Blair  "wants to lower from £5,000 to £1,000 the minimum amount of money or assets police can seize from criminals - even if they have not been convicted." (via Talk Politics).
2. Police have investigated an innocent woman for making homophobic remarks, even though no-one alleged she had committed any crimes. (via Natalie Solent.)
The link between the two is that both undermine the rule of law - the principles that people should be punished only after being found guilty of a crime, and that the police should investigate alleged crimes, and not harrass people for expressing an opinion.
But why is the rule of law under attack? At risk of sounding monomaniac, I blame managerialism.
Put it this way. In many walks of life, not just economic policy-making, there is a choice between using rules and using discretion*. The choice often depends upon how much confidence you have in your ability to think rationally. If you think rationally is unbounded, you'll want to make ad hoc decisions, and use your discretion. If, though, you believe, with Herbert Simon, that rationality is limited, you'll not trust discretion, and will prefer simple rules.
It's no coincidence, therefore, that one of the staunchest defenders of the rule of law - Friedrich Hayek - was also one of the strongest advocates of the notion of limited rationality and knowledge. Central authorities, he believed, simply do not have the requisite knowledge to make good ad hoc interventions into social life and the economy. The best the state could do, therefore, was set and uphold rules of law.
Blair, however, seems to reject the premise of bounded rationality and limited knowledge. He therefore thinks the state needn't be constrained by the rule of law, as it can do better by ad hoc interventions.
But it's not just Blair who's guilty here. He's merely acting in accordance with his nature. What I find more obnoxious is the Stupid party's apparent silence.
I remember Thatcher and her minions screaming about the need for the rule of law in the late 70s and early 80s, when  trades unions, she thought, were running amok. Why, when it believed so much in the rule of law 20-30 years ago, does the Stupid party's commitment seem weaker now?
Could it be that its support for the rule of law, like its alleged belief in free markets, was merely a stick with which to attack the working class?
* Two examples should suffice. Old football coaches say: "if in doubt, put it out" - meaning don't waste time thinking what to do. If, like Rio Ferdinand, you have limitless confidence in your ability, you'll ignore this rule. And an old currency trader I used to know would say "never buy a pound you have not already sold" - which was a great rule from 1971-96.

Comments

[dsquared]

[Police have investigated an innocent woman for making homophobic remarks, even though no-one alleged she had committed any crimes. (via Natalie Solent.)]

Not so. She said on the radio that homosexuals were paedophiles. In the right context this could definitely have been incitement to a public order offence; remember that the recent Birmingham riots were largely kicked off by "remarks" and "opinions" on radio stations (so, in part, were the Sydney ones). So it's not exactly surprising that someone - maybe an enraged queen, maybe not - made a complaint to the police.

Having received the complaint, it's not surprising that the police decided that in context, it wasn't an offence (note that there's no "investigation" that's gone on here; you don't exactly need to be Hercules Poirot to work out the facts of what happened). They then made a courtesy call to the author to tell her that a complaint had been made against her but no action was being taken. In many ways, it was a good idea that they did this; the UK is certainly prone to paedophile scares and it's a good idea to encourage people not to create them.

She then grabbed hold of the wrong end of the stick and the Telegraph put an entirely dishonest spin on the story, which got picked up by Natalie and thence to you. How News Is Made, part XXVI. I see that Mark Steyn even managed to suggest that being called up by a policewoman who expressly tells you it's not a crime, is the equivalent of what happened to Salman Rushdie.

Look, if someone in my street started going round saying that the gays at number 34 were filthy perverts who couldn't be trusted with little children, then I would actually be quite happy to hear that our local bobby had gone round and had a word with them saying "not really a crime, but kindly turn it in". So I don't really see why Radio Five Live should be any different. This isn't a "threat to the rule of law" in any sense at all; the only lesson to be learned here is that Mark Steyn's a fool which I hope everyone knew anyway.

[dearieme]

"Why, when it believed so much in the rule of law 20-30 years ago, does the Stupid party's commitment seem weaker now?" Oh, let me guess: because politicians of the calibre of The Lady are rare birds whereas little quasi-fascists like Tonito are ten-a-penny.

[pedanto the great]

"from 1971-96"? Uh? From 1971-96 to what other period?
Oh, I see .. You meant "from 1971 to 1996". Admonisher, admonish thyself.

[John East]

Dsquared, The newspaper quoted above reports:

….and (Lynette Borrows) expressed her opinion - politely, no intemperate words - that the adoption of children by homosexuals was "a risk".

which agrees with the reports I have seen on other blogs.

So why are you promoting the untruth, ”She said on the radio that homosexuals were paedophiles.”

You had better be careful. Whilst what she said was legal, your words could end up with you being sued for damages.

I can't help wondering where is the evidence that the adopted children of gays would be any more at risk than the adopted children of heterosexual couples. Maybe Lynette Burrows should be asked to put up or shut up, but misreporting her is not the way forwards.

[Kevin Carson]

On the civil forfeiture thing, there's no law on the books that says its a crime to carry a certain amount of cash on you. But a cop can still use large sums of cash as a pretext to rob you. There are no laws in Oceania--or if there are, you only know you've broken one when you find yourself doing 20 in a forced labor camp.

[JuliaM]

So all that happened in this case, according to dsquared, is that the police "made a courtesy call..."

No, sorry, a 'courtesy call' is when your garage rings you to remind your your MOT is due, or your vet calls to say that your dog's annual injections are due!

It is expressly NOT when the police call to say that a member of the public has made a complaint & they are bound to call you about it.....that's actually more like a veiled threat from the police to 'watch it, sunshine..'...!

Members of the public exercising their right to say what they want, unless it is expressly against a particular law (which this wasn't, by the policewoman's own admission) should NOT be subjected to this type of call by the police.