There are dark mutterings in countryside circles of civil disobedience if the Bill in the House of Lords to ban hunting with dogs, going through the committee stage later this month, becomes law.
On the face of it, this seems absurd. Foxhunting is not a great cause like those that occasioned past campaigns of civil disobedience; nor would its disappearance be a great harm.
However, civil disobedience has little to do with the nobility of the cause or the gravity of the offence. It arises when people feel that the laws they are required to obey are invalid or illegitimate. A ban on foxhunting will lead to civil disobedience if enough people affected by it, directly or indirectly, feel strongly that it breaches some norm of law-making which is required for laws to be obeyed.
At first blush, it is hard to understand how the banning of foxhunting could justify a campaign of overt and deliberate law-breaking. We are a democratic society and surely democracy makes laws legitimate? The House of Lords is always being told that it is not “legitimate” because it is not elected. It does have a power of delay, but the Government can always get its legislation through by invoking the Parliament Acts.
Labour’s last election manifesto promised that the question of hunting with dogs would be decided by a “free vote” in the Commons. A Labour government was elected with a huge majority. The Commons has voted overwhelmingly to ban hunting. The chain of democratic accountability seems about as secure as it reasonably could be.
Moreover, it is part of the logic of British democracy that no Parliament can bind its successor. The Conservatives have already promised to reverse any law banning hunting with dogs when they return to power. Some day, no doubt, they will. With democratic mechanisms in place for making and unmaking laws, there should therefore be no call to break the law. Constitutional lawyers would go further: there is no right to civil disobedience when laws are made in accordance with generally accepted procedures.
However, a moment’s reflection will show that an appeal to democratic procedure cannot itself settle the question of the legitimacy of any particular law. A law supported by a majority will still be considered illegitimate by a minority if it lacks moral or rational justification. We do not accept the right of Parliament to pass any law, even if a majority wants it.
In fact, the reverse has often been true: laws decriminalising homosexual acts and abolishing hanging were passed in the teeth of popular disapproval. Today, laws discriminating on grounds of sex, race, colour, language, religion, political opinion, social origin and so on, would be illegal under the Human Rights Act of 1998.
The truth is that a simple appeal to the “prejudices of the people” cannot be a basis for acceptable law-making in any but a very simple, homogeneous society. In a complex, modern society such as Britain, which is full of minorities doing things of which majorities disapprove – in which the very concept of a “majority” is doubtful – laws must be backed by reason as well as by votes.
Here is the problem. The pro-banning movement is based entirely on prejudice: at least, I have been unable to discover a single good that banning will produce beyond the satisfaction of prejudice. It is said that hunting with dogs is cruel. But once it is accepted that foxes are pests whose numbers need to be controlled, this is simply a statement of fact, not an argument. An argument would be that hunting with dogs is more cruel to foxes than other forms of culling, such as trapping or shooting.
Unfortunately we cannot line up a sample of foxes and ask them by which method they would prefer to be killed. Having looked into the matter, Lord Burns, in his authoritative report, admitted that hunting “seriously compromises the welfare of the fox”. But he goes on to state that other methods can also have “serious adverse welfare implications”.
The Burns Report never goes beyond this hedging conclusion, for the obvious reason that one cannot measure the suffering caused by different methods of culling. Nor will welfare logic ever produce a positive argument in favour of banning, unless a much less painful way of controlling pests is discovered. If the argument leads anywhere, it is towards regulation of hunting – a position that the Government itself adopted, before its Bill was amended by the “free vote” in the Commons.
The central philosophic issue is clear enough. On the one side is the majority in Parliament, which claims it has a “mandate” from the people to ban hunting, and that is the end of it. On the other side are those who say that people cannot validly be deprived of a liberty they enjoy without good reason, and that no good reason for banning has been given.
But what of the Conservative promise to reverse the ban? Does that not make civil disobedience unnecessary? Those who contemplate civil disobedience need to distinguish between the right to break the law and the usefulness of doing so.
I would say that a law is invalid, giving rise to a right of resistance, if it is simply based on prejudice. The right of resistance, that is, is independent of the electoral cycle. It is based on the nature of the law, not on the chances of its being repealed. The usefulness of civil disobedience, on the other hand, must rest on a careful judgment about the chances of its success in making the law inoperable.
Not least of the paradoxes of the line-up on hunting is that the Left, which championed reason against prejudice, should now be relying on prejudice to get hunting banned: while the traditional Right, which lived off prejudice, should now be discovering the attractions of reason. There is a lesson in this that almost certainly will not be learnt.