Collective Law-Breaking – A Threat to Liberty
COLLECTIVE LAW-BREAKING - A THREAT TO LIBERTY
The phenomenon of collective law-breaking is the central issue in this volume, confronting the question to what extent our society observes principles and laws. Therefore, it is illuminated which law-breaking is committed as a collective. The focus lies not only on collective individual behavior but also on collective state action, with a special emphasis on the European economic and monetary union.
This volume combines the thoughts and perspectives of various authors from different disciplines. Next to legal questions and aspects, economic and philosophical dimensions of collective law-breaking are explored.
The concept of democracy suggests a correspondence between normative collective will and actual collective action. But when law is handed over to state institutions, the threat of collective law-breaking increases. This can be a sign of social progress, but can also appear as a constitutionally alarming lack of law enforcement. The state should aim at a correspondence between norm and action, either by pursuing the implementation of the diktat of norms “educationally”, or by wisely abandoning the notion of perfect normative standards. It is crucial that the legal system remain credible and does not lose consistency over the course of time.
It is important to recognize that it is in the individual’s self-interest to submit to regulations that restrict his or her personal sovereignty, but which offer protection and security in exchange. The law can only fulfill its civilizing role when it reflects the ethical and moral requirements of a society, and both reflects and works alongside technical, social, and societal changes. Only then can we expect observance of the law.
Corinne M. Flick
The reasons for collective law-breaking are to a great degree determined by the historical context as well as the horizon of meaning and standpoint of the actors. Examples of collective law-breaking can be necessary for the development of human rights. But they can also damage the foundations of individual and collective human rights. In many cases their significance remains ambivalent. It is one of the tasks of philosophy and history to analyze systematically, conceptually, critically, and empirically the social and cultural preconditions, forms, and consequences of collective law-breaking.
Hannes Siegrist & Pirmin Stekeler-Weithofer
Examples of collective law-breaking have existed since ancient times. Seneca recognized that the larger the number of perpetrators, the more lacking in scruples the individual becomes. The law is clearly an inalienable desideratum of human society. Anthropologically and sociologically it has an undisputed raison d’être. However legal history teaches us that the law may not stray too far from what is socially acceptable if it wants to be observed.
This implies an understanding of the “substance of the law” that says that the law should be observed just because it is the law. If a citizen can make a distinction between the law as enshrined in statute and what he perceives to be the law, then the law is no longer identical with its mandatory observance. The result is collective law-breaking.
Christoph G. Paulus
The root of the problem the world is facing today lay in a lack of regulation in complex areas of the financial industry. However, the fact is that the problems that led to the crisis were being uncovered and dealt with in countries that are constantly undergoing critical examination. It is the mark of a mature citizenry that its members are able to look themselves collectively in the mirror, and honestly identify their own faults as a society, rather than blame their problems on others. The desire for constant progress, development, and improvement is the hallmark of a mature, democratic society.
Collective law-breaking means that factual behavior opposes the kind of behavior that is expected under the rule of law. It requires a certain degree of commonality of purpose between several law-breakers. Collective law-breaking has no meaning in law, but it does have a social and therefore a political meaning.
At a European level we identify collective law-breaking in the disregard of obligations that the governments of the Member States imposed upon themselves under the Maastricht Treaty. The Member States should have honored the trust they had placed in the observance of the law in order to prevent the edifice of Maastricht from collapsing. Today the financial crisis in Europe demonstrates the devastating consequences that collective law-breaking can have.
The law cannot protect us from collective law-breaking. Defending the regulating effect of the law and its observance is the task of the individual and lies in all our interests. The law is the condition of freedom, just as a functioning economic and monetary union is a prerequisite for the protection of assets in Europe.
The regulatory principles of the economic and monetary union have not only been treated in a lax manner, they have been disregarded. These principles were regarded as formulae that could be interpreted flexibly, and not as central regulatory stipulations. Principles and rules that should be regarded as guidelines for political action at all times and not only in “fair weather” were regarded as onerous, as they restrict the political sphere of maneuver. But it is precisely during times of crisis that such principles should provide some orientation in the medium term. We can see here clear differences in legal understanding and sense of right and wrong between the Member States and within the European institutions.
A way out of the crisis and the state of illegality is offered by a politically monitored but privately financed growth program that will create, strengthen, and modernize Europe’s infrastructure. The job of the politicians, I suggest, would be to bring these infrastructure needs together with the investment requirements of private capital.
Every general program of “just saving”, every austerity program always goes hand in hand with recession and its consequences such as unemployment, devaluation of assets, increasing social security costs, even to the extent of social unrest.