Free – what ?

10 Mar

My usual warm recommendation of Nick Cartwright’s blog applies as fully as ever – this is in lieu of my remembering how the Comment function works – and yes, I’ve tried ‘Leave a Comment’ :-).

Nick’s reflections on Markets and Morals prompt me to muse about the two different things he discusses as potentially free – free morals (liberalism, to use the more usual term) and free markets (which Marx calls capitalism).

Is there a reason to differentiate between them and have one free-er than the other ? If so, which should be the free-er one ?

Would it be surprising if the State were to held to have a legitimate interest in regulating further the content of cheap beefburgers, but not in regulating morals more generally ? Since it is the writer’s impression that horsemeat is not thought harmful – and so perhaps no crime has been committed ? – what then is the basis for objecting to cheap burgers from cheap shops, if not a moral one ?

Since these debates are often about sexual morality, perhaps that is the real distinction – between (say) commercial morality and sexual morality ? But which has more potential for social damage – sexual immorality, surely ? So you’d think that *that* is more legitimately the State’s concern – but for an intuition that that is (somehow) ‘private’ – so is that the true distinction ? Or just one of a number of factors ?

As I say, a very thought-provoking post – paste this into your browser …

http://nicholascartwright.co.uk/?p=82

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Stacking the Supremes

27 Feb

The appointment of three new UK Supreme Court judges has been announced, after the customary advance leaking tipping and briefing.

There is some discussion about whether the Government was pushing for another female Supreme Court Judge: some might say,  ‘If not – why not ?’ – and given that Mr Cameron’s ecclesiological analysis famously includes female bishops, this must seem plausible. Since Lady Arden is obviously able and available, can it really be a sufficient explanation that ‘But Lord Mance her husband is already on the Court’ ? Perhaps there is a ‘You don’t push us around’ message being sent out here, given recent Government murmurings against Judicial Review ?

Neglected Perspectives on Law ?

27 Feb

The writer has been reflecting on the idea that Law is per se a good rather than a neutral thing. This appears to be assumed or stated by Aristotle in the Politics, and is presumably – tho’ I’m certainly open to counter-citations – adopted by his successors like St Thomas Aquinas.

Of course the idea is controversial, but it is striking how much theoretical work it does – so it may be worth reconsidering – or at least using it to clarify why we are so sure that Law is evil or at best neutral, and so needs separate justification.

If so, then some of the difficulties positivists pose to Natural Law theories are addressed – as are indeed some of the difficulties positivists face themselves. Living under laws is a good thing, and so obedience to those laws in force here and now is at least to be presumed.

This needs some examples to play with …

Easing the Passing

25 Feb

It would be remiss of us, in returning to active service (see previous post), not to note the death of the eminent Anglo-American* jurist Ronald Dworkin. See here for his obituary in The Guardian.

Dworkin is to be remembered for taking up the challenge of giving an account of why the Law deserves to be obeyed – and (in effect – they are close enough to the same thing, perhaps) thus justifying its enforcement. More than that, he sought to justify the system of common-law precedent, and in particular the way that Judges would give decisions that seemed in advance of public/parliamentary/both opinion at the time – a phenomenon we can see on both sides of the Atlantic, albeit more famously common in America eg Roe v Wade where the US Supreme Court discerned latent in their Constitution a Right to Privacy (via the ban on arbitrary official searches) and thence in effect a right to an abortion without state interference. In doing so he also showed a way to account for legal change in a common law system in a rather more detailed way than ‘law changes with society’ – indeed, that might seem (see above) to see Law as a leader of social change.

Whether this is a beneficial legacy may be another matter – Judges have not often noticeably needed much encouragement to see themselves as knowing better than everyone else – but it is certainly a very significant achievement in contemporary jurisprudence, and at least arguably gives a much fuller and more plausible account of common law judging than HLA Hart and the positivists did. For that his memory is to be saluted.

*Really American-Anglo – but the word doesn’t seem to exist.

Reviewing the Situation

25 Feb

Difficilior est non bloggere, as an ancient writer almost observed.

We had been reflecting during the marking season on the purpose of this blog. On the one hand, it is very nice for (Prof) Gavin Phillipson of the University of Durham and Adam Wagner of 1 Crown Office Row to pass by and offer comments – which we gratefully receive. Thankyou to them and to all our commenteers. On the other hand, this blog is not – in the nicest possible way – for these luminaries’ benefit. It is meant to be for a Law student audience – probably undergraduates, probably studying in a UK or otherwise common law / Westminster-influenced jurisdiction.

So we will try to re-focus more specifically on what may reasonably be of interest to them. All visitors will always remain welcome, and we hope never to need to reject a comment, but it seems only fair to flag up that re-concentration of focus here and now. We will continue to encourage our readers to read other relevant blogs, but we may be more wary of offering direct links to specific items.

Back Where We Belong

2 Jan

Speaking of tabloid misunderstanding, it wouldn’t be New Year without the Daily Mail’s return to the UK Human Rights Blog’s Naughty Step (or this time the New Year Dishonours List) for another piece of lowbrow coverage of subtle constitutional issues.

The curious thing is, the UKHRB’s coverage of the Mail‘s article strengthens a feeling this writer has had before, that both sides of the HRs debate are actually quite comfortable in their positions and familiar moves – and indeed with the characteristic moves of each other side. The Mail feels good because some people it loathes (Human Rights lawyers) have put it on the Naughty Step. The UKHRB folks feel good because something they loathe (the Mail) has said something they can nominate for the Naughty Step (again). It’s a win-win.

Well, possibly.

Might I suggest that the reader read the Mail article first ? Bear in mind that the UKHRB regard it as not just wrong (we know that already) but also call it ‘weird.’ Does that strike you as a fair description ? Not just ‘tabloid,’ not just ‘incomplete,’ not just ‘mixing up unrelated things,’ but ‘weird.’

Perhaps it does. OK, then. Now consider which fact or couple of facts in the Mail article you would omit from a summary if you wanted to make it sound ‘weird.’

Now read the UKHRB write-up. Did you guess rightly ?

As Adam Wagner rightly points out in his Comments, ‘£500K on HRs claims’ is straightforward rotten reporting – that’s pretty clearly wrong – but the rest of the article gives rather more detail, and it’s actually not hard to see what provoked the Mail‘s interest.

With doubtless a bit of rounding (and none for inflation), they report that in (apparently) 1999 Legal Aid for prisoners cost £1m, and for the last few years has been £20-£25m. Even making the obvious ‘What about inflation ?’ point – and noting the Legal Services Commission’s response that ‘We’ve tightened the rules now’ – this is a striking increase. The Daily Mail (or the MoJ / HO on their behalf) has apparently excluded from this criminal appeals so that this is an ‘internal affairs only’ figure.

As UKHRB would say – and are entitled to repeat as often as they like – this climb from £1m a year to £20m a year in the HRA’s lifetime is not necessarily all about HRs claims – post hoc is not necessarily propter hoc. However, the question is not – with all due respect – an improper one. Rather than treat the Mail (of course under massive and repeated provocation) as they treat everyone else, wouldn’t it be better to have a go at working out about what proportion are HRs claims ?

Of course that would not be easy. We would have to have a debate about how far legal representation at Prison Disciplinary Hearings is an HRs thing or not (some of the cases, like Tarrant and St Germain in the early 1980s, long predate the HRA), and that might not quickly or definitively be resolved. We could then go on to discuss what would count as an appropriate amount to be spent thus – maybe more than that, who knows ? – and we know how unsympathetically the Mail would report that one. But it might set the Mail and its (many) readers a better example.

At the Movies

28 Dec

If our readers wish any entertainment advice for the festive season, then we advise that they consider Skyfall (the latest James Bond) and The Hobbit: An Unexpected Journey (the first of three) as possibilities. Constitutional lawyers will find much to enjoy in Skyfall (it’s also a pretty decent action film) while those who prefer Land Law or Equity will probably incline to the themes and gentler pace of Hobbit I.

We will have to wait until Hobbit III in two years’ time to see whether Peter Jackson’s updating of Smaug includes his putting in a claim for Adverse Possession of the Lonely Mountain. Tempting as it is to suggest that Smaug sue Bilbo for violating his Privacy, the risk of tabloid misunderstanding is just too great …

Dancing on the Edge ?

27 Dec

The writer has read with interest for a while now Press references to a body called The Marriage Foundation, founded by the High Court (Family Division) Judge Sir Paul Coleridge. One might say that for a Family Judge to favour marriage is a bit like a Chancery Judge favouring property – yes, of course, and are you now going to tell me about bears’ personal hygiene habits ? However, marriage is fairly obviously a controversial matter at the moment, and even an organisation that simply says it promotes marriage is going to be treated with suspicion: the whole topic is so politically loaded – however broad the range of legal luminaries cited as supporters.

The writer was not therefore surprised to find that there had been a complaint to the Office of Judicial Complaints about Sir Paul Coleridge’s involvement – controversial topic (however anodyne the group’s aims) and serving High Court Judge, surely not an A1 plan ? The official notice of their decision says little, beyond observing that Sir P had agreed that a lower profile for him personally be appropriate. That must have been before yesterday’s headlines about his thoughts on the Government’s plans to adjust the legal definition of ‘marriage,’ then ? Or does that oh-so-short decision notice cover an interview in which he told the LC and the QB Pres to ‘Go on, make my day’ ? Curiouser and curiouser …

Did the Crits Have a Point After All ?

26 Dec

The writer was reflecting recently on the USA’s gun laws and the Second Amendment – especially of course in the light of that primary school shooting a week or two ago. (If – hypothetically – some future reader is alas wondering ‘Which primary school shooting ?’ – try this link here to an angle on it)

Before we say more, here’s a link to a (Prof) Duncan Kennedy essay called ‘Freedom and Constraint in Adjudication: A Critical Phenomenology’ 36 (1986) Journal of Legal Education 518 – yes, I know that’s a long title, that’s why I don’t want you to read it yet. It’s also a big pdf, so please start it uploading and read the rest of this while you wait.

Discussion of such incidents quickly moves to the Second Amendment to the US Constitution. The text follows, but Cornell Uni’s annotated version is warmly recommended.

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

The leading case on this is District of Columbia v Heller (2008) (US Supreme Court). In Heller, the Supremes decide by a narrow 5-4 margin that a DC law that (more-or-less) totally bans handguns is unconstitutional.

Justice Scalia gives the lead judgement, for the majority, and there are dissents by Justice Stevens and Justice Breyer.

Recall, the DC law was a virtual ban on handguns. So – how did the minority explain that it was constitutional ? If one sets aside the merits of the Second Amendment, it is difficult (with all due respect) to see how
the dissenters achieve their outcome. The Justice Scalia approach has difficulties (a right to your own musket ?), for sure – but doesn’t it mean what it says ? If the consequences are tragic (discuss … – are they ?), the solution is a further amendment.

Of course, it may be that in Consti cases one is allowed (required ?) to have a view of the proposed rule’s merits, and decide accordingly. But it may be that it is also unwise/unpopular/both to say so. Back to Prof Duncan … and a future post …

Season’s Greetings !

26 Dec

A Merry Christmas, Happy Hanukkah, Delightful Diwali, Righteous Ramadan, Joyeux Noel, Feliz Nadividad and Maligayang Pasko, Bonne Annee and Blessed New Year to all our Readers!

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