(Image above: The Bench by William Hogarth, Public Domain)
The rise of what is often called “judicial activism” in the United States is part of a much wider phenomenon in which the roles of democratic legislatures and lawmakers have come, increasingly, to be circumscribed by the Courts, which often perform this role citing a seemingly ever expanding domain of human rights in justification.
The recent series of lectures by a distinguished British Appellate Judge and Law Lord, Jonathan Sumption has provoked a great deal of interest and debate on the complex web of interconnected issues that this terrain raises.
From the religious perspective, it has long been striking that Human Rights have recently seemed to be given an almost religious aura of respect at a time of increasingly exclusive civil secularism, even though the wider intellectual climate is deeply hostile to the kinds metaphysical and epistemic claims such a status would seem to require. Then again, the putative status of such rights as exceptionalness moral norms has left ever less room for the individual conscience and been used to imply that the individual, as such, has in any case, little room to resolve moral matters when the State, via the courts, seeks to be the exclusive arbiter in that space. This complex array of issues has many implications also for the place of the church in the public square and the analysis of Lord Sumption is most helpful in the way it opens up the way for a more fruitful discussion of this terrain.
The following is a summary form of two of the lectures which will be followed in stages by notes covering the others.
A. M-R
Notes upon the The 2019 Reith Lectures
(See below for more information upon these)
Law and the Decline of Politics
by Jonathan Sumption
— on the place of law in public life and the twin themes of the decline of politics and the rise of law
Part I: Law’sExpandingEmpire
“In the final part of Aeschylus’s great trilogy, the oresteia, the Goddess (Athena) justifies her intervention in the world of mortals with these words,
“Let no man live uncurbed by law or curbed by tyranny.”
That was written in the 5th century BC but the message is timeless and universal. Law is not just an instrument of corrective or distributive justice, it is an expression of collective values and an alternative to violence and capricious despotism.
Law does not occupy a world of its own. It is part of a larger system of public decision making, –the rest is politics.
The subject here, is the place of law in public life and the twin themes of the decline of politics and the rise of law to fill the void and to ask: ‘What ought to be the role of law in a represent-ative democracy?… What do we mean by the rule of law, and is it, even, as cynics have sometimes suggested, merely a euphemism for the rule of lawyers?
Until the 19th century, most human interactions were governed by custom and convention. The law dealt with a narrow range of human problems such as title to property, enforcement of contracts, and protection of people’s lives, persons, liberty and property against arbitrary wrongs. Today, law penetrates every corner of human life….The standard modern edition of the English statutes fills about 50 stout volumes, with more than 30 volumes of supplements. In addition, there are currently about 21,000 regulations made by ministers under statutory powers and nearly 12,000 regulations made by the European Union, which will continue to apply unless and until they are repealed or replaced by domestic legislation…. In a single year, ending in May 2010, more than 700 new criminal offences were created, three-quarters of them by government regulation…” And, “Above all, since 2000, a code of legally enforceable human rights has opened up vast new areas to judicial regulation. The impact of these changes can be gauged by the growth of the legal profession. In 1911 there was one solicitor in England for every 3000 inhabitants. Just over a century later, there is about one in 400, a sevenfold increase.”
But what does the rule of law mean? First, that ‘public authorities have no power to coerce us, except what the law gives them. Secondly, people must have the minimum of basic legal rights including at least protection from physical violence and from arbitrary interference with life, liberty and property (as without these, social existence is no more than a crude contest in the deployment of force). Thirdly, there must be access to independent judges to vindicate these rights, to administer the criminal law and to enforce the limits of State power…..”
Then, there are areas where the intervention of the law has been voluntarily embraced in consequence of changes in attitude such as “a growing moral and social absolutism which looks to law to produce conformity” and a “constant quest for greater security” and wish “to reduce risk in our daily lives”. Then again:
“The law regulated religious worship until the 18th century. It discriminated between different religious denominations until the 19th century. It regulated private and consensual sexual relations until quite recently. Homosexual acts were criminal until 1967. Today the law has almost entirely withdrawn from all of these areas. Indeed, it’s moved to the opposite extreme and banned the discrimination that was once compulsory.
Yet, in other respects, we have moved back to the much older idea that law exists to impose conformity. We live in a censorious age…”
While Mill argued that law exists to protect us from harm and not to recruit us to moral conformity today the press and social media, “generate a powerful herd instinct which suppresses, not just dissent but even doubt and nuance… Advertisers pressurise editors…Student organisations can prevent unorthodox speakers from being heard” so, “the pressure to conform (is) far more intense than it ever was in Mill’s day.”
Now, “the same mentality looks to law to regulate areas of life that once belonged exclusively to the domain of personal judgment. We are a lot less ready than we were to respect the autonomy of individual choices. We tend to regard social and moral values as belonging to the community as a whole, as matters for collective and not personal decision.”
In the case of the case of a baby, Charlie Gard, born with a rare and fatal genetic disease, the hospital where he was being treated applied to the High Court for permission to withdraw treatment and allow him to die. The parents wished to move him to the United States so that he could receive an untested experimental treatment there. The decision of the courts was to authorise the hospital to withdraw therapeutic treatment and the child died. This happened despite the decision as to whether or not to continue treatment was a matter of clinical judgment, but the clinicians involved were unwilling to make that judgment on their own, as they might have a generation before wanted instead the endorsement of a judge, “because judges have a power of absolution. By passing the matter to the Courts, the doctors sheltered themselves from legal liability” (which exposure itself reflects a new willingness to see the domain of such decision making as one for the courts). But the courts went further still, in holding that, despite seeking to make a decision within the range of those that responsible parents could reasonably take, the parents should not be permitted to take the chance of a cure elsewhere. In deciding thus, the courts made it clear that such decisions were ultimately for them and the State and not the parents. This highlights an important consequence in that,
“Rules of law and the discretionary powers which the law confers on judges, limit the scope for autonomous decision making by individuals. They cut down the area within which citizens take personal responsibility for their own decisions and those of their families.”
In a growing number of areas from fur farming to the docking of dogs’ tails and beyond,
“laws are addressed to moral issues on which people hold a variety of different views but the law regulates their choices on the principle that there ought to be only one collective moral judgment and not a multiplicity of individual ones.
This reflects a change of societal attitudes entailing,
“the expansion of the public space at the expense of the private space that was once thought sacrosanct. Even where there are no compelling welfare considerations involved, we resort to law to impose uniform solutions in areas where we once contemplated a diversity of judgment and behaviour. We are afraid to let people be guided by their own moral judgments in case they arrive at judgments which we (as represented by the courts and the state) do not agree with.
Turning to the quest for greater security and reduced risk people sometimes seem to suppose that the elimination of risk to life, health and wellbeing is an absolute value when in fact we don’t really act on that principle. Thus we allow cars to travel at speeds, on account of the wider convenience, even though we know this must entail many people being killed or injured and this shows that reducing risk is a matter of degree and not an absolute.
In addition, particular compensation claim cases have made clear that, “Every time…a public authority is blamed for failing to prevent some tragedy….it will tend to respond by restricting the liberty of the public at large in order to deprive them of the opportunity to harm themselves. It’s the only sure way to deflect criticism.”[1]
In this way too, we“have expanded the range of individual rights, while at the same time drastically curtailing the scope of individual choice”. And we are we coming to “regard physical, financial and emotional security not just as a normal state of affairs but as an entitlement.” “Misfortunes, which seemed unavoidable to our ancestors, seem eminently avoidable to us. Once they are seen to be avoidable consequences of human agency, they tend to become a proper subject for the attribution of legal responsibility. So, after every disaster we are apt to think that the law must either have been broken or be insufficiently robust.”
Yet all this has consequences:
“We cannot have more law without more State power to apply it.” This is of greaT significance and is “why most of us are so ambivalent about it. We resent its power, we object to its intrusiveness,…but our collective expectations depend for their fulfilment on its persistent intervention in almost every area of our lives. We don’t like it but we want it. The danger is that the demands of democratic majorities for State action may take forms which are profoundly objectionable, even oppressive, to individuals or to whole sectors of our society.
PART II
In praise of politics
In a democracy the State is ultimately in the hands of electoral majorities. This creates the challenge of how to control the potentially oppressive power of democratic majorities without undermining democracy itself.
Fundamentally, we obey the State not so much from fear of doing otherwise but because we acknowledge its legitimacy which is therefore a vital but elusive concept. It is less than law but it is more than opinion. It is “a collective instinct that we owe it to each other to accept the authority of our institutions, even when we don’t like what they are doing” and is “…the result of common historical attachments, of language, place and culture. In short, of collective identity.”
The collapse of the communist governments of Eastern Europe at the end of the last century shows that even in a totalitarian State, civil government breaks down at the point where tacit consent fails and ideology cannot fill the gap. This his has to be even more true in relatively free societies such as that of Britain. State action in a democracy depends on a general acceptance of its decision-making processes, even though not necessarily of all of the decisions themselves but at least of the method of making them.
In a free society with countless individuals and groups with conflicting opinions and interests… the “first task of any political system is to accommodate these differences so that people can live together in a single community without the systematic application of force’. In this context “differences are transcended by….(the) common acceptance of the legitimacy of (the) decision-making processes”. Yet, while “a majority is enough to authorise the State’s acts. It isn’t enough to make them legitimate.” majority rule is no more than a rule of decision. It does nothing to accommodate our differences, it simply restates them in numerical terms but no democracy can allow a bare majority to takes all of the political spoils in peril of unsustainable alienation and disaffection. And democracies have therefore evolved methods of limiting or diluting the power of majorities through representative politics and the law in particular.
While for the first time since ancient Athens it would be technically feasible to have the entire electorate vote on every measure in fact democracies operate through elected legislatures and they do this on the basis of a principle James Madison, the chief draftsman of the US Constitution, captured in saying, ‘it may well happen that the public voice pronounced by the representatives of the people will be more consonant to the public good than if pronounced by the people themselves.’ And further, in the words of Edmund Burke ‘Parliament, was not a congress of ambassadors. Its members were there to represent the national interest and not the opinions of their constituents.’ Professional politicians after all may be expected to bring a more reflective approach, a broader outlook and a lot more information than their electors to the task while I addition nations have collective interests that endure over a longer time and a wider geographical range than are likely to be reflected in public opinion at any one moment – upon which as David Hume observed there is apt to be an ‘incurable narrowness of soul that makes people prefer the immediate to the remote.’
The most effective way of accommodating the many differences among people has been through political parties which as coalitions of opinion, are united by a loose consistency of outlook and the desire to win elections. This they attempt to do by offering a slate of policies in their manifestos which, perhaps, only a minority would have chosen as their preferred option but which the broadest possible range of people can live with.
Europe has become in Britain of late a defining issue that has divided both the main parties which, having previously supported membership of the European Union might have been expected to adjust their policy positions to the new reality leading eventually to some form of compromise. But this has not happened and “The fundamental reason is the referendum. A referendum is a device for bypassing the ordinary political process. It takes decision-making out of the hands of politicians, whose interest is generally to accommodate the widest possible range of opinion, and places it in the hands of individual electors who have no reason to consider any opinion but their own. The very object of a referendum is to inhibit an independent assessment of the national interest by professional politicians..”, and, “A referendum obstructs compromise” since the winning majority no matter what the margin, feels entitled to speak for the whole nation, and creating thus the impression at least that all the other voters matter not at all. However, arguably the last six months have seen a gradual reassertion of those who would seek compromise…. But this process has been slow. In part this reflects the decline of political parties in Britain which in 1950s were the largest membership organisations in Britain, whereas today “the Royal Society for the Protection of Birds has a larger membership than all three national political parties combined”. Membership of political parties has fallen disproportionately to small numbers of activists who more willing to obstruct the ability of parties to function as instruments of compromise.
While it may be “uncomfortable to admit…an important object of modern democratic constitutions is to treat the people as a source of legitimacy while placing barriers between them and the direct operation of the levers of power.”
If one barrier is the concept of representation. The other is law. “But we need to understand the limits of what law can achieve in controlling majorities and the price to be paid if it tries too hard.”
While the, “ judicial process is animated by a combination of abstract reasoning, social observation and ethical value judgment that seems, to many people, to introduce a higher morality into public decision-making” politics, by contrast, “has lost its prestige” and “judges have been ready to fill the gap”.
The “catchphrase that justifies this is ‘the rule of law’” and in recent decades, “The Courts have developed a broader concept of the rule of law which greatly enlarges their own constitutional role. They have claimed a wider supervisory authority over other organs of the State.” They have moved “towards a notion of fundamental law overriding the ordinary processes of political decision-making”. This has “inevitably carried them into the realms of legislative and ministerial policy and (after Clausewitz), “law is now the continuation of politics by other means”.
A central principal upon which courts operate is one they call legality but is more easily understood as ‘legitimacy’ where, “Some things are regarded as inherently illegitimate. For example, retrospective legislation, oppression of individuals, obstructing access to a Court, acts contrary to international law, and so on.”
The principle of legitimacy, “is a very valuable technique for ascertaining what parliament really intended, but it puts great power into the hands of judges. Judges decide what are the norms by which to identify particular actions as illegitimate” and “what language is clear enough”.
But, “These are elastic concepts. There are usually no clear legal principles to shape them. The answer depends on a subjective judgment in which a judge’s personal opinion is always influential and often decisive. Yet the assertion by judges of a power to give legal effect to their own opinions and values, what is that if not a claim to political power?” [2]
Over the last half century, “the Courts have thus applied values of their own” over an ever wider array of matters from education to social security benefits, the use of overseas development funds and more “which are different from policies adopted with strong public support by parliament and successive governments”.
“We ought to ask whether litigation is the right way to resolve differences of opinion among citizens about what are really questions of policy…..there is a price to be paid for resolving debatable policy issues in that way.”
‘It is the proper function of the Courts to stop governments exceeding or abusing their legal powers. But allowing judges to circumvent parliamentary legislation or review the merits of policy decisions for which ministers are answerable to parliament, raises quite different issues. It confers vast discretionary powers on a body of people who are not constitutionally accountable to anyone for what they do. It also undermines the single biggest advantage of the political process, which is to accommodate the divergent interests and opinions of citizens.
It is true, politics do not always perform that function very well but judges will never be able to perform it. Litigation can rarely mediate differences”….
To be continued….
[1]Thus too by parallel reasoning, “Everytimethatwecriticisesocialworkersforfailingtostopsometerribleinstanceofchildabuseweare,ineffect,invitingthemtointervenemorereadilyinthelivesofinnocentparentsincasetheirchildrentoomaybeatrisk”.
[2]An illustration is provided by the case of The Freedom of Information Act, which, “entitles people to see certain categories of documents held by public bodies, unless there is an overriding interest in there being withheld. The Act also conferred on the Court a power to order disclosure but in addition to those, it gave minister save to if they felt that they could justify that in parliament. In other words, it empowered them to impose a political rather than a legal solution. However, in the case of certain letters of the Prince of Wales, when the Attorney General issued a certificate under the Act overriding the decision of a tribunal to disclose these letters the Guardian newspaper, the British Supreme court by a majority of five to two quashed his decision, saying in their judgement in essence that, “they didn’t approve of the power that parliament had, on the face of it, conferred on ministers.Three of the judges thought that it was such a bad idea that parliament could not possibly have meant what it plainly said.”. Against this view,“one of the two dissenting judges pointed out, the rule of law is not the same as the rule that the Courts must alway prevail, whatever the statute says. No other modern case so clearly revealsthejudge’s expansive view of the rule of law”.
About the Reith Lecturer see
https://www.theguardian.com/law/2015/aug/06/jonathan-sumption-brain-of-britain
About the Reith Lectures
The Reith Lectures are a series of very notable Radio lectures which have been commissioned by the BBC from a notable figure of the day every year since 1948. They commemorate Lord Reith the first Director General of the BBC. He established the BBC in 1922, in the firm belief that it should be a public service that enriches the cultural and intellectual life of the nation and the lectures are intended to advance public understanding and debate about significant issues of contemporary interest.
Whether the BBC, now the largest broadcasting organization in the world by number of employees (currently approaching 36,000 in total), and annual gross revenue of just under 5bn (GBP) truly fulfills the intent behind its foundation, as it currently operates, is a matter that is increasingly subject to debate.
While a quarter or more of its income derives from its commercial operations and sales of programmes and services around the world, the rest mostly comes from the licence fee of 154.50 GBP required by almost all those persons and organizations who receive live television. The organisation has just rolled out plans to expand the grasp of this levy to include all those over 75 years of age who were previously exempt – a move that has caused further controversy at a time when revelations have disclosed that its highest earning presenters can earn up to 2.25m and the levy takes no account of how little income the pensioners paying may have.