Using principles and the making of laws

Otago Daily Times

3 days ago

Where principles and law-making meet. Photo: ODT files
What are we to make of the various principles we have been hearing about recently: a principle of neutrality that is supposed to support the principle of free speech; a principle of tolerance; three principles in the Treaty Principles Bill; the Waitangi Tribunal's Treaty principles; and the principles of the Act New Zealand party.
Some try to live by the principle of moderation in all things, others by the 10 pre-eminent biblical principles.
Many would apply the principle of equality as equal pay for equal work. Then there are the principles of human rights and indigenous rights.
It would seem that a majority of people write and speak of principles as if they are infallible statements to be read off verbatim — and that is usually the intention.
It was United States psychologist Lawrence Kohlberg who formally reinforced a belief that acting in accordance with universal principles is the highest level of moral development.
But since 1958, Kohlberg's claim has been thoroughly criticised, especially for being more characteristic of a male way of thinking about the world, contrary to a caring approach.
Kohlberg's claim also presupposes that universal principles override particular facts and feelings which are fundamental to moral, legal and scientific considerations.
In this short space, I aim to pour doubt on uncritical confidence in the wide use of principles to steer decision-making.
To do that, I would like to consider two basic characteristics of principles that such use tends to run slipshod over. They amount to an inescapable interplay of faith and reason.
The first characteristic of principles is that they are expressions of beliefs. Belief is another way of looking at faith commitment, irrespective of what that commitment might be anchored in: a deity, tradition, philosophical ideology or a particular interpretation of nature.
We necessarily put our trust in principles in order to guide us in decision-making because there never is access to all the facts and feelings surrounding any particular matter.
However, the irony here is that although principled thinking is a key tool in rational thought, it is also essentially founded on belief that cannot be fully justified. Principles are adopted in faith.
Where then do principles come from? Being beliefs, they have no observable physical existence as objects or behaviours.
They exist merely as ideas, even as very useful ideas. So we always need to ask, "whose ideas?"
People usually invent principles to exert power and dominate, forcing others to bend to their way of thinking — what they consider "right".
Therefore, we always also need to ask, "on whose authority?" and "will I accept or challenge that authority?"
Like assumptions and other beliefs, principles are not a suitable basis for discussion. Unless they are widely held, they are divisive.
The idea that overarching principles can act as a check on all other principles illustrates the reality that they are designed to constrain and prevent open discussion and promote conformity.
On the other hand, some other overarching principles, such as the twin principles of love God and love thy neighbour, can promote wide open inclusive discussion.
It is well to acknowledge that some people presume universal principles actually do exist, somewhere out there, or within the human psyche; a core suite of affirmations about what is right and wrong (moral knowledge) that all of humanity can comprehend.
Unfortunately, cultures and individuals continually disagree about which principles count because there is no aspect of reality against which to verify them.
Yet, as biological beings inhabiting a global environment, the principle of interdependence is hard to beat.
A second characteristic of principles that also brings into question their usefulness, is that they are generalisations. This means that they result from reflection on a host of particular situations.
The important point here is that it is nonsense to suppose that generalisations, such as principles, will apply in all relevant situations. Exceptions are the rule.
When considering how to legislate, act or adjudicate in a situation, particular facts and feelings are crucial.
The relative importance of generalisations and particulars in discussion and decision-making is disputed territory.
While some believe in the supposed authority of a generalisation (a principle or law), others believe in the supposed authority that the particulars of a case provide.
Alternatively, consider scientific principles and their applicability. It is often pointed out that science cannot to be trusted because scientific knowledge keeps on changing.
This happens because scientific generalisations (principles and laws) are based not on beliefs as much as they are based on data sets (grassroots information, so-called facts) which keep on changing due to new observations about a changing world, and are more often than not, generated by new technologies.
A good example is the recent article in Nature that discusses the use of satellite imagery and Argo floats instead of random sampling, to determine the saltiness of the Southern Ocean.
This has provided a new understanding of sea ice melting. Here, there is a fit between particulars and generalisations which the use of principles per se cannot provide.
I leave the following chicken and egg conundrum: do particular observations of objects and behaviours come first, or the generalisations generated by many such observations?
In any case, the solution is not straightforward, and more so when we realise, as British historian Agnes Arber brought to our attention in 1954 in The Mind and the Eye, that the observer's mind brings generalisations and ideologies to observation through their eyes.
Principled thinking is then, fraught with difficulty.
The introduction of overarching principles as proposed by the Regulatory Standards Bill is, according to this analysis, a serious step backwards into denial of the status of such principles as power-mongering beliefs.
Such a check on existing and new legislation by overarching principles is an unnecessary, if not mischievous, rationalisation.
There are so many issues in health, education, corrections, welfare and the environment that elected members can surely troubleshoot through robust discussion with a commitment to co-operative non-partisan governance, without entertaining the Act party's divisive, road-blocking principles.
• Ron Adams is a former teacher of ethics and theology in Dunedin.