December 01 2023

Can law ever just be law?

Can law ever just be law?

Justice in a time of austerity: a Justice Gap series

Law has perhaps never been more relevant to the UK constitution.  For decades, the UK’s political constitutional bent, favouring the authority and the actions of parliament and the government, left the courts in the shade.  Limelight was briefly splashed on the characters passing in and out of the Royal Courts of Justice’s gates when a celebrity trial hit the front pages, or when a political scandal erupted in a courtroom deep in the building’s bowels. But other than that, for those seeking political news and gossip, the goings-on of Britain’s legal class was a wasteland. 

The situation is very different today. Yes, we still have the celebrity trials, with Colleen Rooney and Rebecca Vardy’s ‘Wagatha Christie’ lawsuit coming hot on the heels of Johnny Depp and Amber Heard’s libel trial, keeping the paparazzi’s cameras flashing on Fleet Street.  And yes, we still have the political scandals – Claudia Webbe, the Labour MP is still using the courts to fight for her political life, while the former MP Imran Khan has just been sent down for child molestation.  I could go on. 

But these aren’t the bread and butter legal stories, but the exceptions to the rule. Today, headlines attack lawyers for helping asylum seekers, justices hear arguments on whether the prime minister has to sack his Home Secretary, and judges have been condemned as the ‘enemies of the people’.  Elsewhere, when the papers write damningly of Strasbourg, people know what they mean – the pesky judges at the European Court of Human Rights are getting above themselves again. Our membership of the EU, introduction of the Human Rights Act, and construction of the UK Supreme Court has brought the law into our political life.  And perhaps Brexit, more than anything else, showed how far the law has come to play a part in politics.

Law emerging from its chrysalis is a development that should be welcomed.  It means that people have a more substantive understanding about a part of the state that makes decisions that may be as crucial to their lives as elected politicians do. But also because it reflects the growing role of the courts as a power that recognises, defends and upholds peoples’ rights. Without the law and the courts, minorities would often be left vulnerable, women would be left unable to fight for their rights in the workplace, and governments would rule by political expediency alone. Anyone who thinks that the government doesn’t need this oversight should have a chat with Sue Gray.  

The blossoming of law makes accurate reporting and commentary on it more valuable than ever.  To the outsider, law is a maze, an archaic mix of anachronism, tradition and principle designed to trip up and confuse the lay person.  To them, the complexity is a feature, not a glitch.  Legal reporting – what little of it remains – is an invaluable tool.  Court reporters and sketch artists distill the legal arguments put to the judge or jury into a few pithy paragraphs, draw back the curtain on the court, and summarise a judgment for the law reports. They don’t put their personal slant on the events taking place.  But they also don’t develop or explain the law, offering clarification of what the law means, how the court may have got the law wrong, or how the law may change.  

Some may argue that this is all that reporting should seek to do.  Unlike politics, law is supposed to be pure. It is not an art, but a social science – and this theoretically entails the existence of a ‘right’ answer. This means there must be an objectivity to the law- something that it simply ‘means’.  HLA Hart, the esteemed legal philosopher, put this argument forward in a famous thought experiment.  In this experiment, there is a sign forbidding ‘vehicles’ from entering a public park.   Hart believed that there was a core of objectivity to this rule, with self-propelled means of transport, like cars, forbidden.  On its face, the language alone was enough.  

But this clarity is beguiling.  Pausing to think about the rule for any time at all reveals the complexity within it.  What about park vehicles? What about battery-aided bicycles? What about automobiles erected as monuments?  It was this latter example that one of Hart’s contemporaries, the recently deceased Lon Fuller, seized upon.  What if a group of patriotic soldiers erected a decommissioned military vehicle as a war memorial?  It would be absurd to say that this violated the rule, but on a plain reading of the text, it does.  Fuller argued instead that you couldn’t just look at what the text said, but why it was introduced.  What was – or is – the rule’s purpose?

Once purpose has entered the equation, difficulties run rampant.  People may have different interpretations about what the purpose of a regulation is, no matter how banal the issue it regulates.  Some may argue that the purpose of this rule is to keep visitors to the park safe.  Others may suggest it is to preserve an air of tranquillity, or to minimise pollution.  And once you have these different interpretations, you come to different conclusions on what the law proscribes and prescribes.  Proponents of the ‘safe’ argument may suggest that any mode of transport, whether a truck or a skateboard, is forbidden.  Those for tranquility may only exclude vehicles that make noise, and those for the climate those that emit pollution.  Nor are these the only arguments that can be made, with others perhaps advocating for an ‘original intent’ interpretation of the regulations, or a dignity-orientated approach, to name but two.  

Until a court rules on the matter, there is no right – or wrong – answer to the question.  It is a matter of opinion.  And even after a judgment is handed down, people are free to disagree, debating and discussing how and why the court got the answer so wrong – or so right.  Those who write on the law participate in this dialogue, although have an obligation to write in good faith, explaining what the law is, and why they believe it to be what they say. 

For instance, if you are are writing about the prime minister’s misdemeanours, but believe that they fall within the lawful bounds the regulation sets, that is a perfectly legitimate argument to make.  Most people would probably consider a regulation limiting in-person working to circumstances where it is ‘reasonably necessary’ to forbid a gathering to eat cake.   If a writer thinks that the prime minister eating cake with others on his birthday is ‘reasonably necessary’ for him to govern the country, by all means believe it, and then explain why.   

What is wrong, however, is to claim that such an argument is just ‘doing law’, or that it is somehow objectively true.  Setting aside the fact that the defence of cake above is absurd – it would have been wonderful to see a judge’s expression upon being told that the prime minister’s birthday cake was necessary for him to do his job, as though he was some sort of overly coddled toddler – the argument is subjective.  What is ‘reasonable’ is a matter of opinion by any measure, while what the regulations mean, as Hart and Fuller show us, depends on how you approach the law.  And these different approaches to the law are a matter of politics as well as a matter of law. 

Any commentary on law, provided it is done in good faith, accurately summarising the facts and legal arguments, is valuable.  It lets readers understand the arguments and make their own minds up.  And with the constitutional role of the courts growing in the public’s consciousness it is more important than ever.  Writers who put themselves on a plinth, presenting themselves as delphic oracles rather than as part of the hoi polloi, do their readers a disservice. They don’t persuade on the basis of their argument, but on how they wrap it up. If they believe their arguments to be right, they should have faith in their arguments alone.  Much like the prime minister, they shouldn’t try to have their cake and eat it.