Magazine article The Spectator

Do We Need a Legal Philosophy? If So, What Should It Be?

Magazine article The Spectator

Do We Need a Legal Philosophy? If So, What Should It Be?

Article excerpt

What should the law be about? Even lawyers seldom ask this question, and it ought to be asked from time to time. So I was glad to attend the inaugural lecture last week, at University College, of London's new Professor of Legal Philosophy, Stephen Guest. In his discourse, 'Why the Law is Just', this young but formidably accomplished New Zealander not only asked the question but gave an emphatic answer. The law, he said, must promote justice, and the most decisive way it can do this is by favouring equality. By equality he meant not just equality before the law (that was taken for granted) but equality in a more general sense. Moreover, he drew attention to John Stuart Mill's argument that one of the worst of tyrannies is the tyranny of the majority, which was legitimised by democracy and often expressed itself in legislation by elected tyrants. Hence the law, that is to say the judges, who have the advantage in this context that they are not elected, have a professional moral duty on occasion to correct the majoritarian bias by upholding the principle of equality. I hope my brief summary does not do injustice to a subtle and beautifully crafted argument which left me at the end saying to myself, 'Well said, and quite wrong.'

Lawyers are often condemned, especially by intellectuals, for being too narrowminded. I am more worried when lawyers become broad-minded and start to set themselves up as legal philosophers, rather than sticking to the law as it stands. I am not happy when lawyers play a determining role in imposing a framework of government. They were prominent, for instance, in shaping Mussolini's Italy in accordance with his formula, 'Everything within the state, nothing outside the state, nothing against the state'. They were invaluable to Hitler in giving legal substance to his race philosophy: the Nuremberg Laws were a classic example of a legal system designed to attain political ends rather than impartial justice. Apartheid in South Africa was another instance of a system of justice being crafted to secure specific ends. It was a philosophical enterprise, being largely the creation of the ideologist H.F. Verwoerd, formerly professor of social psychology at Stellenbosch University. When he became premier in 1958 he made use of his academic colleagues, notably the lawyers, to unify haphazard forms of legal discrimination into a complete system of law. It is no use replying that the objects of these systems were themselves evil. After all, the Soviet system of law was, and the current Chinese legal code is, deliberately designed to promote equality. Yet Soviet law produced perhaps even greater injustice than the Nazi system, and under the Chinese code more than 60 million individuals have been killed and about 20 million are currently in labour camps. When law strays from jurisprudence into politics, there is always trouble, often of the kind produced by Karl Popper's 'Law of Unintended Effect'.

Nor am I happy with the idea of judges stepping in to make good the failures of the politicians in the pursuit of philosophical or political ends. There is a case of it in Israel at the moment, where the Chief Justice, a judicial triumphalist, is determined to curb the political power of the religious parties. I predict it will end in disaster, of precisely the kind Israeli society can least afford. One of the more disturbing aspects of American life in the last half-century has been the Supreme Court's adventurism in rewriting, as opposed to interpreting, the Constitution. No doubt the more aggressive justices would say equality is their object. …

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