The Hamlyn Lectures 2010: Lawyers and the Public Good: Democracy in Action?, byALAN PATERSON.Cambridge: Cambridge University Press, 2012, 240pp (£17.99 paperback). ISBN:9781107626287.
Across the world, the last few decades have been ones of dramatic change, transform-ing the nature of democracies and their core social institutions.1 Law’s status as the‘highest norm in secular democracies’2 makes the impact of this turbulence on thejustice system especially pertinent. Alan Paterson’s focus on three key dimensions ofthe justice system – namely the profession, access to justice and the judiciary – in thecontext of the changed nature of democracy is therefore extremely welcome. The factthat he is able to speak with authority not only about the English and Welsh system,but also to provide a comparator by basing his discussion primarily on Scotland addsto the interest of these lectures.
The reflections on the reflexive relationship between law and lawyers, on the onehand, and (changing) social, political and economic institutions, on the other, aregrounded in Paterson’s theorisation of professionalism as ‘neo-contractualism’. As heexplains,3 in this he follows the functionalist view of professions as key agents infulfilling the functions necessary to social order.4 However, whereas classical func-tionalists describe the relationship between the profession and wider society as asocial bargain, Paterson prefers the term ‘contract’ since for him this better conveys itscontingency and, consequently, the dynamic nature of the concept of legal profession-alism which, ‘being socially constructed . . . evolves over time’.5 Its most recent,dramatic evolution is the consequence of the challenge posed by ‘other bodies claim-ing to represent the public interest’ to the ‘benign paternalism’6 and relative autonomywhich characterised lawyers’ ‘traditional’ relationship with society. The resulting
1. An extensive literature, across the humanities, engages with this change. See, eg, AGiddens Modernity and Self-Identity: Self and Society in the Late Modern Age (Cambridge:Polity Press, 1991); U Beck Risk Society: Towards a New Modernity (London: Sage, 1992); RSennett The Corrosion of Character (New York: Norton, 1999); and Z Bauman Liquid Moder-nity (Cambridge: Polity Press, 2000).2. R Abel English Lawyers between Market and State (Oxford: Oxford University Press,2003) p xv.3. A Paterson Lawyers and the Public Good: Democracy in Action? (Cambridge: CambridgeUniversity Press 2012) p 16.4. Exemplified by Talcott Parsons’ contention that ‘law when developed to the requisitelevel, furthers the independence of the normative components of the social structure from theexigencies of political and economic interests and from the personal, organic and physicalenvironmental factors operating through them’. T Parsons Societies: Evolutionary and Com-parative Perspectives (Englewood Cliffs, NJ: Prentice-Hall, 1966) p 37. The neo-Weberianunderstanding of professionalism as a collective mobility project (see, eg, MS Larson The Riseof Professionalism: A Sociological Analysis (Berkeley, CA: University of California Press,1977)) may be understood in part as a reaction to this essentially conservative perspective.5. Paterson, above n 3, p 16.6. Ibid, p 3.
Legal Studies, Vol. 32 No. 4, December 2012, pp. 661–692DOI: 10.1111/j.1748-121X.2012.00260.x
renegotiation of the profession’s ‘tacit concordat with the state’7 has reshaped themeaning of legal professionalism, leading to, inter alia, the loss of self-regulation andcontrol over legal aid and an increased emphasis on judicial accountability and socialrepresentativeness.
It is implicit to Paterson’s neo-contractualist frame that the contemporary meaningof legal professionalism is a co-construction between the profession and society.His exploration in Chapter 2 (entitled ‘Professionalism re-assessed: what now forlawyers?’) of what this has meant in practice begins with a critical analysis of someof the assertions that legal professionalism is in crisis, thereby enabling Paterson alsoto supply a brief sketch of the major changes that have transformed the profession inrecent years. Thus he notes that the ongoing commoditisation of legal work leadsRichard Susskind to predict a process of incremental deprofessionalisation and theultimate (possibly imminent) demise of ‘outdated lawyers’.8 For other scholars thefocus has been on the ubiquity and consequent devaluation of the term ‘profession-alism’, fulfilling Wilensky’s prediction that anyone with a claim to specialised knowl-edge would be able to describe themself as professional,9 thereby emptying the termof its status value. This point is highly significant, too, for those who conceptualiseprofessionalism as a collective mobility project; however, as Paterson explains, neo-Weberians also see the loss of control over supply markets as a major factor in thedecline of professionalism.10 Others are rather concerned with the destructive impactof specialisation and diversification of work settings on the profession’s traditionalcollegiate model.11 Paterson concludes this survey with what he sees as the mostsustained critique of the contemporary profession – namely that the commercial andconsumerist ethos resulting from the deregulation of the legal services market has hada corrosive impact on traditional ideals.
These various predictions of the demise of legal professionalism are countered bynoting that several of them appear to fall into the ‘golden age’ trap, and to take at facevalue the stereotype of the homogenous, collegiate nineteenth-century profession.12
By contrast, Paterson’s conceptualisation of professionalism as necessarily sociallyconstructed and hence inherently plastic leads him to argue that what is happeningshould rather be interpreted as the ‘replacement of an outmoded model of profession-alism’13 by one which is more entrepreneurial and consumer focused. He also resiststhe pessimism that pervades many commentaries on the commercialised profession-alism. This is in part because, alongside those he describes as ‘the ethicists’,14 he
7. Ibid.8. R Susskind The End of Lawyers? (Oxford: Oxford University Press, 2008) p 3, cited inPaterson, above n 3, p 6.9. HL Wilensky ‘The professionalization of everyone? (1964) 70 American Journal ofSociology 137. And see Fournier who interprets this development from a Foucaultian perspec-tive as a means of ‘governing employees from a distance’: V Fournier ‘The appeal to “profes-sionalism” as a disciplinary mechanism’ (1999) 47 Sociological Review 280.10. R Abel English Lawyers between Market and State (Oxford: Oxford University Press,2003) p 475.11. R Nelson et al Lawyers’ Ideals/Lawyers’ Practices: Transformations in the AmericanLegal Profession (Ithaca, NY: Cornell University Press, 1992), cited in Paterson, above n 3, p9.12. However, given that these predictions are concerned precisely with the end of this ‘idealtype’ of professionalism, this observation does not diminish their significance.13. Paterson, above n 3, p 53.14. Ibid, p 12.
considers that the dichotomy between being a profession and a business is a false one‘(since) professionalism is a Janus faced concept’15 which combines the traditionaltraits (expertise, service ethic and so on) and ‘a range of largely self orientedattributes’.16 For Paterson not only is this ‘dialectical tension between self interest andother related values . . . healthy and normal’, but it can also be interpreted in terms ofthe contract: ‘[I]t has always been in the public interest for lawyers to make areasonable living in return for serving their clients and the wider community.’17 Inother words, the profession’s business model is functional to the social contract sinceit entails the marketing and sale of its special traits, such as the service ethic andexpertise, a situation which, following American ethicists, Paterson sums up as ‘rela-tional self-interest’.18
The changes entailed by the renegotiated contract – aspects of which Alan Patersonapplauds as exemplifying the decline of professional paternalism – are then exploredthrough a close and detailed scrutiny of their main features. These include the removalof most of the elements of the market shelter which solicitors once enjoyed (and whichwas a central component of the contract, supporting the autonomy of the legaluniverse and thus generating the philosophy of legalism and associated jurisprudenceof legal positivism), and the authorisation of Alternative Business Structures (ABS). Itis interesting to learn that whereas it is now possible for non-lawyers to own andcontrol English law firms in their entirety, Scotland requires 51% of the capital ofScottish firms to remain in the hands of lawyers and ‘other regulated professionals’,19
suggesting a greater concern to retain a degree of professional distinctiveness. On theother hand, the moral hazard attaching to referral fees appears to have generatedgreater caution in England than in Scotland: whereas in England there is a code ofpractice requiring that clients be made aware of these fees and research has beencommissioned into this area, in Scotland we are told ‘we have yet to hear the first wordon the subject’.20
Alan Paterson is less sanguine about the regulatory move from individual regula-tion (as a result of the advent of ABS) to entity regulation and the development ofprinciple-based regulation, warning that it was this form of regulation that failed sosignally to police bankers, and he explicitly regrets the abandonment of the Solicitors’Code of Conduct 2007. As he points out, citing Julia Black, without these detailedrules, the general principles will be incapable of forming the basis for disciplinaryprosecutions.21 On the other hand, as he goes on to explore, a range of developmentswhich exemplify the renegotiation of the ‘pact between the profession and the com-munity’22 have tended to enhance the skills and attributes which the professiontraditionally offered, such as expertise, a service ethic and public protection. Aprimary example here is the development of quality assurance schemes. However, ashe also makes clear, there is a great deal of room for improvement. Thus, while theintroduction of mandatory continuing professional development (CPD) did much tomaintain levels of expertise, Paterson notes that little has been done to advance this
15. Ibid, p 15.16. Ibid.17. Ibid.18. Ibid.19. Ibid, p 23.20. Ibid.21. Ibid, p 33.22. Ibid. p 34.
work on professional standards, and that similarly there is a need for more rigorousassessment of specialists. In terms of public protection, it is argued that the ‘re-writingof the contract between lawyer and client’ generated by the consumer society hasmeant that, on the one hand, lawyers have been obliged to act less like ‘hired guns’ fortheir clients and, on the other, they have extended their duty of care to others. Hisreflections on the implications of this ‘ethic of care’ – for instance, the possibility thata third party could complain about the service provided by the other side’s lawyer –lead him to conclude that it poses a significant problem for today’s regulators of theprofession.23
Chapter 3 explores the future of legal aid and hence of access to justice. It beginsby noting the essential ambiguity of the phrase ‘access to justice’ and providing auseful summary of its various meanings. The definition which Paterson deploys –access to affordable publicly funded legal assistance – makes clear its political nature,thereby foregrounding his central theme of who is to define the public good. Then,through an excellent summary of the history of legal aid, he proceeds to show howlawyers not only originally dominated the policy debate, but have as recently as 2007successfully lobbied to exclude the layperson’s voice,24 and how this resulted in a‘judicare’ system geared to the profession’s interests. This narration of the profes-sion’s resistance to many of the access to justice developments (such as the establish-ment of law centres) until it was able to co-opt them, underscores his central theme ofthe need for a public dialogue on what is in the public interest. This leads in turn to abiting critique of current government policy on legal aid, central to which is Paterson’sargument that ‘assisting people to vindicate their legal rights is a societal or a publicgood every bit as much as it is an individual or private one.’25 These points arefollowed by a clear and extremely useful discussion of the history of the reform oflegal aid, grounded in a comparison of the frequently contrasting strategies adopted inScotland and England. This is a field in which Alan Paterson has almost unparalleledexpertise, and the chapter is a must read for anyone who wishes to understand how wehave arrived at the current point, and also what options we now have. He concludesthat in future access to justice will depend on a partnership between all stakeholders,reiterating his call for dialogue and democratic engagement.26
Continuing the theme of the relationship between legal institutions and ‘a properlyfunctioning democracy’, Chapter 4 is dedicated to the final institution ‘vital fordemocracy’. As he has argued with respect to legal professionalism and access tojustice, Paterson’s starting point is that the ‘courts are not just for the judiciary andlawyers – they are part of the constitutional fabric of the country’.27 Recent decades,however, have seen what is described as a ‘new form of constitutionalism’ as thepower of the judiciary vis-à-vis the executive and the legislature has grown signifi-cantly.28 Paterson sees dangers in this enhanced capacity of the judiciary to makedeterminations of the public interest (exemplified by the expansion of legal remediesand of judicial review, the development of judicial case management, and the incor-poration of the European Charter of Human Rights into domestic law), and reflects on
23. Ibid, p 43.24. Lord Gill, Scottish Civil Courts Review (2009), cited in Paterson, above n 3, p 62.25. Paterson, above n 3, p 69.26. Ibid, pp 120–124.27. Ibid, p 128.28. As Professor Paterson acknowledges, this point was made by Genn in her 2008 HamlynLectures. H Genn Judging Civil Justice (Cambridge: Cambridge University Press, 2010) p 148.
examples of where the judiciary may have got the public interest wrong.29 The detaileddiscussion of contemporary engagements between government and the judiciary isenlivened by reference to historical instances and other jurisdictions. His concernabout the expansion and politicisation of judicial power and the consequent need toensure accountability while maintaining independence is consonant with his neo-contractualist/functionalist position since this envisages a primary function of thejustice system as integrative and hence legitimising, entailing its clear separation fromthe political system. However, Paterson finds solace in the developing dialogue withthe state and other stakeholders over complaints, training and other matters of publicconcern. His reflections on these issues, which range over questions of selection anddiversity, mechanisms to enhance disclosure and transparency, a fascinating discus-sion of judicial decision making and a concluding section on Belmarsh, make for aparticularly rich chapter.
Much of the interest of these lectures is supplied by the forensic detail with whichaspects of the contemporary justice system are discussed, such as the distinctionsbetween the Scottish and English legal aid systems and the fascinating description ofthe Scottish Bar. The range and depth of the discussion is the result of a deep andmultifaceted engagement with these issues, and the pleasure of reading it is enhancedby Alan Paterson’s unique voice, which includes the conclusion of reflections onvarious points with such characteristic pronouncements as ‘we have been warned’. Asa result, what we have is both an enjoyable read and an extremely informative andinsightful analysis of the state of the justice system today. It is also a timely warningagainst uncritical nostalgia for traditional professionalism.
On the other hand, those who do not share Alan Paterson’s belief in neo-contractualism may find some of his interpretations of developments overly optimis-tic, especially when it comes to his view of the impact of the market. For instance, thequestion of whether there are too many lawyers is approached as follows:
‘[W]ho will decide what is in the public interest in this area? The Government?The profession? The judiciary? The universities? None of them: it should be thepublic in the shape of the market.’30
Yet to take up this example, this surely begs the question of what constitutes themarket since, despite classical economic theory, markets do not in practice operate insplendid isolation. Thus, as Alan Paterson as chair of the International Legal AidGroup knows better than most, and as he makes clears in his Chapter 4 on legal aid,there has long been and remains a market for legal services for the poor; indeed, thisis another sense in which we may conceptualise law and the profession as Janus-facedentities. On the one hand, they are the servants, the engineers even, of capitalism,31 yettheir other face is that of the providers of justice. However, as Paterson points out atthe start of Chapter 4, the provision of publicly funded legal services always entails ajudgement on what is the appropriate use of government resources which means that
29. Paterson, above n 3, pp 126–127. One example he gives is R (Morgan Grenfell & Co) vSpecial Commissioners of Income Tax [2002] UKHL 21.30. Ibid, p 24.31. The literature on the role of law and lawyers in both constituting the forms of capital andadvancing its interest is voluminous, but see, eg, M. Cain ‘The symbol traders’ in M Cain andC Harrington Lawyers in a Postmodern World (Buckingham: Open University Press, 1994); YDezalay ‘Professional competition and the social construction of markets’ in Y Dezalay and DSugarman (eds) Professional Competition and Professional Power (London: Routledge, 1995).
‘we are in the realm of power and politics’.32 The current government decisiondrastically to cut those resources means that the market for social justice is beingevacuated by lawyers, despite the fact that, as he also reports, a recent opinion pollfound a huge majority of people across all social classes in favour of free civil legaladvice for people on average incomes and below.33 Evidently, therefore, a similarobjection may be raised to the apparently unproblematic use of terms such as ‘thepublic’, ‘community’ and ‘society’. Despite the pervasive theme of democracy/dialogue and, consequently, the frequent discussions of who it is who defines thepublic good, there is less reference to the numerous competing interests and powerblocs which comprise society, especially at a time of increasing inequalities. Arguably,this difficulty is intrinsic to a contractualist position since functionalism assumes avalue consensus within society so that the question of who or what is meant by societytends to be sidelined.
If we instead take a ‘power’ view of society, then, of course, we would interpretsome of the changes that have occurred in recent years rather differently. Again, the‘too many lawyers’ discussion and the difficulties experienced by many in obtainingtraining contracts provides an example. Alan Paterson suggests that expectations ofhigh earnings might be one reason senior partners are increasingly choosing parale-gals.34 He also writes that creating paralegal jobs with a ceiling of £30,000 salarymight suit many indebted law and LPC graduates.35 Of course, high wages may wellbe deterring some employers from taking on trainees; on the other hand, the researchsuggests a more complicated picture in which, as part of the process of becoming anincreasingly commoditised and entrepreneurial profession, law firms have come toresemble other capitalist enterprises, characterised by multiple hierarchies.36 Theresearch further indicates that this development, together with the routinisation ofcertain types of work, is making possible the creation within the profession of whatcan be ghettos, largely populated by non-normative professionals.37 Here I would alsonote the potentially detrimental effects on quality assurance of exploitative workingconditions, which can mean that in some firms clients are served by poorly paid andpoorly supervised paralegals.38
This is not to suggest that Alan Paterson’s generally optimistic interpretation of therenegotiation of professionalism is not tempered. He outlines four possible futures forlegal professionalism: the triumph of commercialism; the breakdown of profession-alism as a compact as a consequence of the attenuation of its meaning; professional
32. Paterson, above n 3, p 62.33. The poll was commissioned by the Legal Action Group (LAG) in November 2010.S Hynes ‘Publicly funded legal advice gets a ringing endorsement’ Law Society Gazette,11 November 2010, cited in Paterson, above n 3, p 63.34. Paterson, above n 3, p 25.35. Ibid, pp 25–26.36. See, eg, S Ackroyd and D Muzio ‘The reconstructed professional firm: explaining changein English legal practices’ (2007) 48 Organization Studies 1.37. See, eg, H Sommerlad, L Webley, D Muzio, J Tomlinson and E Duff Diversity in the LegalProfession in England and Wales (London: Legal Services Board, 2010); and H Sommerlad‘The commercialisation of law and the enterprising legal practitioner: continuity and change(2011) 18 International Journal of the Legal Profession 73.38. H Sommerlad ‘The professional precariat: the case of law’. Paper presented at thePROPEL Conference, May 2012, available at: http://www.propel.stir.ac.uk/downloads/HilarySommerlad-FullPaper.pdf
fragmentation; and the proliferation of sub-specialisms.39 While suggesting that onepossibility is that the future will entail a combination of all these potential scenarios,he is clear that the approach of the large law firms will be decisive, and finds that ‘thisis not altogether a comforting thought’.40 Further, the dangers inherent in the marke-tisation of the profession are alluded to as he continues by commenting that the‘behaviour of City firms over the conflict of interest rules has been unedifying’.41 Thispoint illuminates, I think, the current vulnerability of professionalism as an occupa-tional value. While, of course, Paterson is quite right to remind us that it must changein response to changed social conditions, a functionalist perspective also requires thatthese changes do not destroy those aspects of professionalism which enable the justicesystem to fulfil its social function.
I would argue, in line with some of those who Paterson describes as ‘doomsmiths’,that this is what may be happening and, further, that a functionalist-based analysisshould be more sensitive to the dangers posed to the ‘public good’ by the increasingdominance of the big firms and the commercialised ethos of professionalism. One ofthe central tenets of functionalist theorising was that the profession’s relativeautonomy was fundamental to its ability to fulfil its socially integrative function,supporting in turn the autonomy of the legal universe and thus generating the phi-losophy of legalism and associated jurisprudence of legal positivism. The marketisa-tion of the profession as a result of the renegotiated social contract has eroded thisautonomy and therefore ultimately threatens its capacity to maintain its distinctivetraits and fulfil its legitimating function. This is not to argue for an unaccountableprofession; as Alan Paterson convincingly shows, benign paternalism is no longeracceptable. Nevertheless, I would suggest that his clear and detailed delineation of thechanges that have transformed the justice system in recent years recalls the insight ofthe foremost functionalist theorist about the key function of the profession in main-taining what he described as a highly fragile social order.42 Parsons argued that thestability of the normative order depended on a balance between the capitalisteconomy, the rational-legal social order (of Weber) and the modern professions. Asimilar point was made by the father of functionalism, Emil Durkheim, when, duringthe course of his promotion of the role of professional ethics in civic life, he bitterlycriticised the ‘moral anarchy’ which accompanied nineteenth-century economic life asa ‘self-delusion’ of classical economists ‘because the economic functions were studiedas if they were an end in themselves, without considering what further reaction theymight have on the whole social order’.43 The most fundamental change of recent yearshas been the marketisation of the profession – or what has been termed the ‘capitali-sation of everything’.44 I would suggest that the impact this is having on the socialorder resembles more closely Durkheim’s moral anarchy than productive democraticdialogue.
HILARY SOMMERLAD45
39. Paterson, above n 3, pp 56–58.40. Ibid, p 57.41. Ibid.42. T Parsons ‘The professions and social structure’ (1939) 17 Social Forces 45743. E Durkheim Professional Ethics and Civic Morals (London: Routledge, 1992) p 15.44. F Jameson ‘Five theses on actually existing Marxism’ Monthly Review, April 1996, at 1.45. University of Leicester.
Human Dignity in Bioethics and Law, by CHARLES FOSTER. Oxford: Hart, 2011, xxxi +178 + (index) 5pp (£30.00 paperback). ISBN 978-1-84946-177-1.
In this ambitious book, Charles Foster builds on his previous argument about thelimitations of autonomy in medical ethics and law.46 In a similarly polemical style, heprovides what he describes as the new bioethical ‘theory of everything’ – namely aconcept of human dignity that has substantive meaning for both health and legalpractitioners. The crux of the argument Foster seeks to make is that a ‘transactionalmodel’ of understanding human dignity can resolve every dilemma in medical ethics.All we must do whenever a difficult issue of bioethics or law comes up, argues Foster,is ask ‘is that the solution that maximises the amount of dignity in the world?’. Clearly,given the quantity and quality of academic thought that has been expended onunderstanding the difficult bioethical dilemmas of our time, the viability of such asimple solution is unlikely, yet strangely desirable. Students, in particular, wouldappreciate the availability of such a straightforward approach that would cover, asFoster seeks to do in just 66 pages, the intractable dilemmas associated with: consent,confidentiality, privacy, medical research and resources (Chapter 8); human enhance-ment and cloning technologies (Chapter 9); reproductive choice and the unborn(Chapter 10); the end of life (Chapter 11); and the use and abuse of body parts(Chapter 12).
In Chapter 1, Foster sets out his arguments around the centrality of human dignityin bioethics. Chapter 2 provides an historical overview of the conceptual developmentof ‘dignity’, particularly through Judaeo-Christian values, towards Kant’s complexelucidation of the concept. Chapter 3 shifts the focus to a variety of contemporarycommentators on the concept of ‘dignity’. Foster focuses on the limitations of each ofthese commentators, in particular identifying and demonstrating where each of themfall foul of either the ‘old war between dignity as constraint and dignity as empow-erment’, or the problems of adopting a Kantian notion of dignity as inalienable.Chapter 4 provides a similarly rapid tour through the literature that dismisses ‘dignityas useless’ alongside those bioethicists who consider dignity to be best considered tofall within the concept of ‘autonomy’, or who jettison it in favour of a rights analysis.Perhaps most superficial of all is a brief acknowledgement of literature which critiquesdignity as an essentially religious concept. This amounts to little more than a sentenceand associated footnote. This is disappointing given that the nuances of those argu-ments have the potential to undermine much of Foster’s later application of hisconcept of dignity to contemporary bioethical dilemmas.
Chapter 5 turns to non-lawyers’ and non-philosophers’ accounts of dignity, anddemonstrates the empirical complexity of understanding and protecting dignity along-side the practical distinction between dignity as a status and dignity as a quality.Chapter 6 provides a brief restatement of Foster’s key argument (presumably in casehis reader has, by this point, forgotten it). Chapter 7 describes some relevant legalauthorities, none of which support Foster’s formulation of human dignity. Unfortu-nately, because so much of Chapter 7 is concerned with reproducing extracts frominternational legal instruments and judgments, there is a surprising lack of analysis ofthese legal approaches to dignity. It may have been more useful and persuasive tosee Foster’s analysis of how his argument for dignity as the bioethical ‘theory of
46. C Foster Choosing Life, Choosing Death: The Tyranny of Autonomy in Medical Law andEthics (Oxford: Hart, 2009).
everything’ actually fits with the domestic and supranational jurisprudence on theinterplay of autonomy, dignity and human rights, rather than simply being told:
‘as to the meaning of dignity, it was not open to Munby J to concur with myformulation. That formulation is not implicit in the judicial authorities. But nor isit excluded by them.’47
In the remainder of the book, Foster ‘applies’ his ‘human-dignity-as-theory-of-everything’ argument to the domains set out above. He concludes that ‘everyoneinvolved in bioethics and bio-law will have to come to terms with the fact that dignityis going to be the ruling paradigm.’48 A bold claim indeed.
Given the range of topics engaged with by Foster in this book, there are manyaspects which would merit further interrogation, if we were to be persuaded by hisargument. Perhaps first it is important to give a little more by way of detail on thesubstance of Foster’s primary argument. ‘Dignity’, to Foster, is ‘to be a member of thespecies wholly distinct from all other members’49 or, in other words, to be an indi-vidual. This approach seems to require humanity, which is perhaps not entirelyunsurprising, given the title of the book. Foster does seek to argue that he can ‘seenothing in [his] conception of dignity that might not apply to a dolphin or a tree’,50 buthis notion of the dignity of non-humans is also given a fairly expansive caveat:
‘[I]t may be difficult to quantify the dignity interests of a non-human withsufficient certainty to warrant them having a place in the equation at all. And evenwhen they do have a place, surely their interest would carry relatively little weightbeside competing human dignity interests.’51
My concern with this caveat is that it may be similarly difficult to quantify the dignityof patients in a persistent vegetative state (PVS) or people with severe dementia, orothers who cannot express their own version of a ‘good life’. By assuming that thereis some inherent human-ness that is shared by all, we run the risk of erasing thedifferences of conscience and culture that allow different humans the scope to realisetheir own version of ‘the good life’ and live to their own moral codes. Foster’sargument for membership of the human species as the basis of dignity inevitablyrequires some kind of (presumably religious) shared conception of the good. Hence itis frustrating that Foster chooses not to substantively engage with the critiques ofdignity as having unhelpfully religious undertones.52 To make his argument about thefundamental nature of dignity more convincing, he needs to address these critiqueshead on.
Foster’s version of human dignity is relational in that it requires a consideration notjust of the individual who is to be, for example, given or denied a form of treatment,but also everyone else who is involved. As such, Foster would argue that an autono-mous decision to end one’s own life offends dignity because it fails to take account of
47. C Foster Human Dignity in Bioethics and Law (Oxford: Hart, 2011) p 110.48. Ibid, pp 177–178.49. Ibid, p 6.50. Ibid, p 8.51. Ibid, p 18.52. See, eg, PS Churchland ‘Human dignity from a neurophilosophical perspective’ in EDPellegrino, A Schulman and TW Merrill (eds) Human Dignity and Bioethics (Notre Dame, IN:University of Notre Dame Press, 2009) pp 99–121.
others’ value or investment in that life. He works this up in a ‘transactional model’,asking how to maximise dignity for all those involved at the nexus of a particularbioethical transaction:
‘The dignity claims of all parties to the transaction are of course taken intoaccount. In practice those of the patient are likely to be predominant. But that doesnot mean that the others are ignored. This is not, or not necessarily, a “first past thepost” system. It will often be possible to negotiate a solution that allows for thepreservation and expression, within the confines of practicality, of the dignity of allor most of the stakeholders.’53
Foster’s boldest claim, and one that even he admits ‘sounds hysterically grandi-ose’,54 is for dignity as the bioethical ‘theory of everything’. Here, he argues that ratherthan dignity being one of many ways of understanding bioethics, it should be con-sidered the approach to understanding the human condition. He urges us to ask ‘whatis good for man?’, noting the metaphysical and religious connotations of such aquestion. This is a contentious claim, not because dignity is not, potentially, a usefulconceptual tool, but rather because by asking a singular question there is likely to bea singular answer (even if this answer varies according to the context in which aquestion is asked). Singularity like this, while theoretically neat and nicely straight-forward for the creation of a logical, stepwise argument, is far from reflective ofhumanity in its broadest sense. The diverse forms of life and culture that intersect,even in just one contemporary geographical domain (whether that be a country, a city,or a village), render the question ‘what is good for man?’ meaningless. To take just oneexample, sociologists have empirically demonstrated that (heterosexual) marriage isgood for men. They have also comprehensively demonstrated that (heterosexual)marriage is at best, neutral, and, at worst, bad for women.55 So while encouragingmarriage may be ‘good for man’ and may even be the best way of optimising man’sdignity, it is likely not the best approach to maximising woman’s dignity. Evenseeking a ‘theory of everything’ is therefore problematic in its inability to adequatelyaccount for difference.
In the later chapters, Foster seeks to argue (in contrast to Chapter 7’s outline of thelack of support for or decisions against his approach to dignity in bioethics and law)that his bioethical theory-of-everything transactional view of dignity is encapsulatedby Art 8 of the European Convention on Human Rights:
‘My contention simply is, then, that the thesis I advanced in Chapter 1 (namelythat dignity is the most fundamental bioethical principle from which all rightprinciples derive, and that in analysing bioethical problems one should look at thedignity of everyone affected by an action or inaction, and decide on the right courseby seeing whether the net amount of dignity is increased or decreased by the actionor inaction) is legally old hat. It is what judges do anyway (and clinicians shoulddo anyway) when they look at bioethical problems (as they should) through theprism of Article 8. Article 8 is all about dignity; Article 8(2) demands that the
53. Foster, above n 47, p 15.54. Ibid, p 19.55. K Dempsey ‘Who gets the best deal from marriage: women or men?’ (2002) 38 Journal ofSociology 91.
dignity interests of all conceivable stakeholders be assessed and a decision made inlight of that assessment.’56
It is hard to be persuaded by this argument. Foster essentially attempts to argue thatprivacy interests are necessarily dignity interests and that in conceiving Art 8 in thisway we can allow for dignity judgments both explicitly and transactionally in the waythat he suggests is appropriate. I fail to see how it is possible to concretise what is, atbest, a vague ethical principle (dignity) by saying that there is a law (Art 8 ECHR)which does what you argue dignity does. To do so successfully, one would have to firstdraw on a ‘law’ that is concrete (rather than terminally fluid or vague, as Art 8undoubtedly is).57 Secondly, it would be necessary to subscribe to a particular view of‘law’ as being separate from, and ruling over, something called ‘society’ – what legalconsciousness scholars have called ‘law’s own story of its own awesome grandeur’.58
By attempting to concretise dignity by recourse to Art 8, Foster implicitly argues thatArt 8 has some intrinsic worth as a ‘law’ that dignity (as a moral or ethical principle)does not have. Perhaps this takes his argument too far away from his own use of it,which I sense is simply to argue for how ‘transactional’ decision making could bedone. Even so, such an approach fails when confronted with some of the most difficultquestions that Foster tries to explain using it.
Take, for example, his discussion of dementia, advance decisions and medicaltreatment. Foster explores end of life issues and dignity in death in Chapter 11. Heargues that his approach to dignity is an argument against euthanasia because heargues that dignity requires people live their whole story, rather than bring it to anabrupt end:
‘If dying is part of living, then, is one thriving when one is dying? Yes indeed.As we’ve noted, the end of the story is often the best bit. It might be painful orfrightening, but the whole story would be different – wouldn’t be a story all –without it.’59
To make his point about dignity at the end of life, he engages in a discussionconcerning the validity of an advance directive not to give live sustaining treatment (inthis case, antibiotics for a chest infection) to a person with dementia, where thatperson has experienced a profound personality change such that she is happy andcontented at the time in question.60 The example is very similar to Dworkin’s,61 thoughFoster comes to the frustratingly equivocal decision that it would be unlawful both togive antibiotics for a chest infection62 and to withhold them.63 Clearly this is incorrectas a matter of law: if an advance decision is valid, it must be followed and best
56. Foster, above n 47, p 125.57. See R Harding ‘Sir Mark Potter and the protection of the traditional family: why same sexmarriage is (still) a feminist issue’ (2007) 15 Feminist Legal Studies 223, for an argument aboutthe limitations of Art 8.58. P Ewick and S Silbey The Common Place of Law (Chicago, IL: University of ChicagoPress, 1998) p 47.59. Foster, above n 47, p 167.60. Ibid, p 169.61. R Dworkin Life’s Dominion: An Argument about Abortion, Euthanasia and IndividualFreedom (New York: Knopf, 1993) ch 8.62. Mental Capacity Act 2005, s 26 (hereafter ‘MCA’)63. Ibid, s 4.
interests are not considered.64 As such, this one example challenges the utility ofFoster’s transactional approach in providing a practical resolution to even a relativelycommonplace bioethical dilemma.
It is unfortunate that the question of antibiotics for a chest infection to treat thehappy dementia patient is always the example provided in these types of evaluation.This is because this type of medical care is not ‘life sustaining treatment’ in anysignificant sense, and as such it misses the point about dementia, dignity and dying.Many older people with dementia are likely to succumb to another physical illnessbefore they reach the end stages of dementia itself. Where a person does reach the verysevere, end stages of dementia, they are likely to be doubly incontinent, unable tocommunicate, unable to walk or move independently, unable to feed themselves or toswallow effectively. They may be unable to smile, to sit up without support, or to holdtheir head up. Their dignity interests, or the dignity interests of those around them, areunlikely to be advanced through the administration of aggressive medical care (includ-ing, eg, artificial respiration, hydration or nutrition) but may well be advanced throughpalliative care which eases pain or discomfort without prolonging life. In the unlikelyevent that a person has a valid advance directive refusing all medical treatment for allinfections, however minor, after a diagnosis of dementia and after she has lost thecapacity to consent to such treatment at the time, then it should be followed.
In most situations, it is highly likely that a person with mild enough dementia to be‘blissfully demented . . . , beaming at his fellow patients and rejoicing in the veryworst of daytime TV’65 would also have capacity to consent to such minor medicaltreatment.66 Importantly, for an otherwise physically well person with dementia,antibiotics for a chest infection are a pain and/or complication-preventative measurerather than a life-sustaining treatment measure. In contrast, in the UK the question ofwhether to follow an advance directive to refuse treatment would come at the pointwhen a person with dementia is unable, under the terms of the Mental Capacity Act2005,67 to make a decision to consent to or refuse treatment, at which point theadvance directive should be followed, unless that person has done anything ‘clearlyinconsistent with the advance decision remaining his fixed decision’.68 This may seemlike a minor difference, but my aim here is to make the point that, as a matter of law,dignity interests are protected through the autonomy interests secured through theMental Capacity Act. Foster’s transactional approach to dignity therefore has no placein this equation. Advance directives have been given legal force specifically to allowindividuals, when they have the mental capacity to do so, in the interests of their ownunderstanding of human dignity (rather than the understandings of their family or theirdoctors, or any others who purport to have an interest) to refuse treatment that wouldotherwise prolong their lives.
Certainly, dignity is worth considering as an important principle, and may well beone of the ethical principles to be considered in complex dilemmas such as end-of-lifecare, but it cannot replace or trump the other established and important bioethicalprinciples that guide our bioethical and medico-legal decision making. More specifi-cally, dignity as human thriving, considered in a relational and transactional sense, isfar too limited and specific a definition of dignity to be useful as the bioethical theory
64. Ibid, s 25(1).65. Foster, above n 47, p 169.66. MCA s 25(3).67. Ibid, s 368. Ibid, s 25(2)(c).
of everything. Why? Because to use this as the only way of making the hard decisionscould very well lead us to the wrong decisions, and those wrong decisions mightundermine autonomy and leave the door open for maleficence.
In Human Dignity, Foster makes a compelling case for more attention to be paid tothe concept of ‘human dignity’. He falls short, however, of persuading us to jettisonother helpful bioethical concepts in favour of his ‘theory of everything’. It seemsunlikely that dignity will ever become the ruling paradigm in bioethics or medical law,in spite of its usefulness as protection against those things which may be experiencedas an affront to individual or collective values. Rather, the place of human dignity inbioethical decision making must be one which can reflect the multiplicitous nature ofthe concept itself. If ‘dignity’ were easy to define in singular sense, then it wouldneither have the practical and conceptual uses that it does, nor the advocates anddetractors that it needs.
Like Foster’s recent book on the ‘tyranny of autonomy’, Human Dignity requiresa response.69 That response may well be a reinvigoration of debate around the utilityof the concept of ‘dignity’ in bioethics and law. Such a revitalised debate wouldcertainly be a good thing, especially given recent judicial decisions concerningdignity, where individual understandings of how to best support it seem to have beensacrificed by the majority of the Supreme Court in favour of resource allocation.70
Through this book, Foster has succeeded in provoking further consideration of theutility of dignity in bioethics and law, but ultimately fails to persuade that dignityshould be the new ‘theory of everything’ to which we all must turn.
ROSIE HARDING71
The 9/11 Effect: Comparative Counter-Terrorism by KENT ROACH. Cambridge: Cam-bridge University Press, 2011 xiv + 462 + (index) 14pp (£19.99 paperback). ISBN: 13:9780521185059.
Since the events of 11 September 2001, the extent of legal scholarship in the field ofcounter-terrorism has bordered on the overwhelming. In the face of a global convul-sion of lawmaking and extraordinary executive action under the since discardedslogan of the ‘war on terror’, the legal academy in many jurisdictions rushed torespond. That such an outpouring of research in the space of just a few years shouldbe so variable in quality was hardly surprising. Quite a lot of what was produced waspedestrian, repetitive and forgettable. But there was also much of great value fromwhich those working in this burgeoning area could draw sharp insights, methodologi-cal cues and comparative perspectives.
Over this period, University of Toronto Professor Kent Roach has been one of thesteadfast contributors to the body of literature that forms the latter category. He hascombined a remarkable capacity for timely and prodigious output with originality andthe complementary virtues of both breadth and precision. Roach was one of thosebehind what was surely the first scholarly publication on the post-9/11 challenges tothe rule of law: a major collection of essays critiquing Bill C-36 (Canada’s initial
69. J Herring ‘Review of C Foster Choosing Life, Choosing Death, The Tyranny of Autonomyin Medical Law and Ethics’ (2010) 30 Legal Studies 330.70. Eg R (On the application of McDonald)(Appellant) v Royal Borough of Kensington andChelsea (Respondent) [2011] UKSC 33.71. University of Birmingham.
legislative response to the terrorist attacks), published in November 2001.72 Since thenhe has not stopped. Yet to praise the consistency of his work is not simply toacknowledge the regular frequency with which it has appeared, but to remark on thedepth of its intellectual contribution to the field. Roach’s earlier research experiencein both public law and criminal justice well equipped him for the multifaceted natureof counter-terrorism and he has been able to apply both in equal measure and withsubtle yet effective force to his analysis of developments in terrorism law.
Roach’s new book, The 9/11 Effect: Comparative Counter-Terrorism, is the cul-mination, and indeed a distillation, of the vast knowledge he has gained through adecade’s research and teaching in this area. The importance of Roach’s teaching isworth emphasising. He has taught comparative counter-terrorism courses not just inhis native Canada, but also the UK, Singapore and Australia. That provides a uniqueopportunity to explore directly the transjurisdictional trends and local variations anddistinctions that might escape the attention of those trying to engage in comparativeresearch from afar. Roach’s travels have, of course, taken him to rather more juris-dictions than just those in which he has taught, and the value of this is also apparentin what the reader finds in this book. It is thoroughly informed by the author’ssustained dialogue with those who have an intimate knowledge of their own jurisdic-tion’s counter-terrorism laws and who are, crucially, able to explain the social andconstitutional settings that have dictated the form those laws have taken.
Given both this background and the title itself, the value of the comparativeexercise is, unsurprisingly, central to the book. It is also the key yardstick againstwhich its success must be measured. Although Roach is surely correct when he opensby saying that ‘9/11 produced a horrible natural experiment’73 in comparative law, theconfluence of anti-terrorism law over this period does not, by itself, ensure that this isa straightforward or necessarily meaningful exercise. Earlier attempts to present asustained comparative study of counter-terrorism have highlighted the extent of thischallenge.74
The structure that Roach has settled on, while hardly astoundingly innovative, isnevertheless that which is most apt for the job. By considering the responses of variousjurisdictions sequentially – first through the five parts of one chapter on countries thatdid not make an immediate response to 9/11, and then through separate chapters on theUSA, UK, Australia and Canada – he enables the reader to explore the connections,similarities and differences between each in a way that avoids jostling all the materialon specific issues – be it detention or surveillance – too closely together. The seamless-ness of a single authorial voice also means the book succeeds far more effectively as acomparative exercise than the numerous edited collections which attempt multijuris-dictional coverage. Regardless of the high quality of their individual chapters, thoseworks often require rather more effort from their readers in extracting the comparativelessons.75
72. RJ Daniels, P Macklem and K Roach The Security of Freedom: Essays on Canada’sAnti-Terrorism Bill (Toronto: University of Toronto Press, 2001).73. K Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge: Cambridge Uni-versity Press, 2011) p 1.74. See, eg, LK Donohue The Cost of Counter-Terrorism: Power, Politics and Liberty (Cam-bridge: Cambridge University Press, 2008).75. Of which, the leading title is co-edited by Roach: V Ramraj et al (eds) Global Anti-Terrorism Law and Policy (New York: Cambridge University Press, 2nd edn, 2012). See also A
‘to provide both a relatively detailed, nuanced, and contextual examination ofanti-terrorism law and policy in particular countries and a sense of the global sweepof the 9/11 effect on anti-terrorism law and policy, the rule of law, anddemocracy’.76
Citing as an inspiration David Garland’s approach to writing a ‘history of thepresent’,77 Roach explains his methodology as
‘rooted in a new legal process and institutionalist approach to scholarship thatfocuses on the interplay of multiple forms of law and the dialogues or interchangesthat have occurred between courts and other branches of government and societyover the legality and proportionality of counter-terrorism measures’.78
As such, he is alive to what Kim Lane Scheppele has called the ‘three-dimensionalpolitical space’ in which the global anti-terrorism campaign of the last decade hastaken place.79 That space, which she likens to ‘a three-dimensional chessboard wherea piece from one level can knock out a piece from another or where a particularlyimportant player can escape to another level for safety’, is occupied by transnational,national and sub-national political actors and courts.
What renders this three-dimensional game particularly complex are the extensiveand diverse rules used by the players. Roach emphasises the importance of the‘whole-of-government’ response to the threat of terrorism.80 Traversing foreign policy,crime and policing, intelligence gathering and immigration controls, the actions of thestate do not permit compartmentalisation of the disparate parts of the law that directlyunderpin these measures, and also obviously involve others such as public, adminis-trative and evidence law. Through his various country studies, Roach argues that thewhole-of-government approach, especially accompanied by transnational dealings(most obviously illustrated by rendition), creates ‘dangerous accountability gaps’.81
While there have been some welcome judicial interventions, it is very clear that thecourts enjoy only a limited capacity to fill those gaps.82 The need to create ad hocinquiries in many countries to get to the bottom of controversial actions taken by thestate in respect of certain individuals has demonstrated the deficiencies of manyexisting accountability mechanisms.
An interesting aspect of this issue is the attention that Roach gives to the Australianexperience. Alone of the four jurisdictions given detailed treatment in the book,Australia has no national bill or charter of rights. Consequently, its courts have played
Siniver (ed) International Terrorism Post-9/11: Comparative Dynamics and Responses(London: Routledge, 2010).76. Roach, above n 73, p 5.77. D Garland The Culture of Control: Crime and Social Order in Contemporary Society(Chicago, IL: University of Chicago Press, 2001) p 2.78. Roach, above n 73, p 6.79. KL Scheppele ‘The constitutional role of transnational courts: principled legal ideas inthree-dimensional political space’ (2010) 28 Penn State International Law Review 451 at 452.80. Roach, above n 73, p 6. See also K Roach ‘The criminal law and its less restrainedalternatives’ in Ramraj et al, above n 75, p 117.81. Roach, above n 73, p 19.82. See also M Tushnet ‘The political constitution of emergency powers: parliamentary andseparation-of-powers regulation’ (2007) 3 International Journal of Law in Context 275.
a fairly minimal role in checking state power, though this is undoubtedly also aproduct of the dominance of criminal prosecution in Australia rather than measuressuch as administrative detention or control orders which have tended to provoke rightsclaims elsewhere.83 Roach compares the parliamentary oversight and that also ofindependent statutory bodies in Australia favourably with the powers and effective-ness of similar review mechanisms in the UK and Canada. In particular, he praises thecapacity of review in Australia to break down the silos of law and departmentalauthority so as to truly assess the use of the ‘whole-of-government’ approach by thestate.84 A clear example of this is the very broad purpose of the office of IndependentNational Security Legislation Monitor, created in 2010, which is to report on both theefficacy and rights impact of the full gamut of Australian anti-terrorism law.85 Theclarity and comprehensiveness with which this potentially powerful watchdog hasbeen established may be contrasted with that of the UK’s Independent Reviewer ofTerrorism Law, upon which the Monitor is based.
While one might concede the benefits of accountability checks that are not inhib-ited by boundaries between different elements of the legal system, it is arguablewhether Australia has been well-served by the quality of its reviews any more thanother jurisdictions have been by equivalent processes.86 The effectiveness of non-judicial controls upon executive government is undeniably more susceptible toevasion and obfuscation than those which courts are able to wield. The part played bythe judicial arm is not, then, to be too heavily discounted. This is especially so whenone acknowledges, as Roach does, the unexpectedly direct intervention of the judi-ciary through cases such as A v Secretary of State87 and Charkaoui v Canada (Citi-zenship and Immigration).88 The slow burn of litigation in the US Supreme Courtconcerning the rights of persons detained at Guantanamo Bay may have been lessspectacular than these single decisions from the UK and Canada, respectively, but alsodemonstrated a judicial assertion of legality – and in perhaps the most hostile ofcontexts.89
To expand upon that last point, America is, of course, the great anomaly in thisstudy. Its pursuit of an executive-based war model in responding to the terrorist attacksof 9/11 means that it fundamentally jars with those chapters examining the legisla-tively driven approaches through criminal justice and immigration law of the UK,Australia and Canada. Roach highlights the comparative restraint displayed by muchof the USA Patriot Act when placed alongside the broadly framed restrictions onspeech and association under the statutes of other countries. This just serves, though,to underscore the stark contrast between America’s constitutionally constraineddomestic response to terrorism and the aggressive prosecution of the ‘war on terror’outside its borders. Roach spends a great deal of time teasing out the delicate paradoxof America’s rampant culture of legalism having been pressed into the defence of
83. On the significance of Australia’s criminal trials of persons for terrorism-related activity,see N McGarrity “Testing’ our counter-terrorism laws’ (2010) 34 Criminal Law Journal 92.84. Roach, above n 75, p 356.85. Independent National Security Legislation Monitor Act 2010 (Cth), s 3.86. See A Lynch ‘The impact of post-enactment review on anti-terrorism laws: four jurisdic-tions compared’ (2012) 18 Journal of Legislative Studies 63.87. A v Secretary of State [2004] UKHL 56.88. Charkaoui v Canada (Citizenship and Immigration) [2007] 1 SCR 350.89. Especially Hamdan v Rumsfeld [2006] 548 US 557; Boumediene v. Bush [2008] 553 US723.
patently extralegal measures. In doing so he draws frequently on what must rank asone of the most clear-sighted insider accounts of everything that was wrong with theBush administration’s approach: Jack Goldsmith’s The Terror Presidency.90 As Gold-smith said pithily, ‘lawyers had a huge impact on terrorism policy, and much of itwasn’t salutary’.91 Roach’s treatment of this issue is admirable if for no other reasonthan it is ground upon which non-Americans usually fear to tread. This is so for tworeasons. First, as he acknowledges, US law is flat out ‘dauntingly complex andidiosyncratic’.92 Second, it is hard to get a sufficient sense of the political culturewhich infused debate about the extent of presidential power and the administration’sstrong reluctance to work more constructively with Congress. Even when the latterfurnished the necessary authority for specific action (eg electronic surveillance), thereremained a clear preference for executive unilateralism. The chapter on the USinevitably stands on its own terms in the broader context of this work, despite someclear connections with counter-terrorism in Israel being made. But Roach has encap-sulated the American experience in a profoundly accessible and useful way for thoseof us who have been attempting to understand it at some remove.
While these considerations have meant that America’s influence upon global anti-terrorism law has been more atmospheric than direct, the same cannot be said for therole played by the UN. The significance of UN Security Council Resolution 1373upon the domestic legislative agendas of many jurisdictions has been well-noted,including by Roach.93 The character of that resolution as ‘legislation’ that obligescompliance by Member States of the UN has also been subject to much analysis.94 AsPowell has written, in reflecting on past use by the Security Council of its powersunder Chapter VII of the Charter, what was ‘different about SCR 1373 is that is amandatory order with no time limit, and it is not confined to a particular conflict butrather aimed at an undefined threat: “global terrorism”’.95 Roach is damning of theoverall contribution made by the UN to the post-9/11 landscape, but his most severereproach goes to this lack of definitional clarity given what SCR 1373 put in train. Inparticular, he laments the failure of the Security Council to embed support for thedefinition of ‘terrorism’ used in the 1999 Convention on the Suppression of TerrorismFinancing, despite otherwise promoting that treaty.96 Roach’s support for the elementsof that definition has been longstanding and is in equal measure to his regret that, inthe absence of clear guidance from the UN, the broad definition contained in the UK’sTerrorism Act 2000 was seized on by many jurisdictions as a model.97 By the time
90. J Goldsmith The Terror Presidency: Law and Judgment Inside the Bush Administration(New York: Norton, 2007).91. Ibid, p 132.92. Roach, above n 75, p 13.93. K Roach ‘Sources and trends in post-9/11 anti-terrorism laws’ in BJ Goold and L LazarusSecurity and Human Rights (Oxford: Hart, 2007) ch 10.94. See CH Powell ‘The United Nations Security Council, terrorism and the rule of law’ inRamraj et al, above n 75, ch 2; E Rosand ‘The Security Council as ‘global legislator’: ultra viresor ultra innovative?’ (2004–2005) 28 Fordham International Law Journal 542.95. CH Powell ‘The legal authority of the United Nations Security Council’ in Goold andLazarus, above n 93, p 166.96. Roach, above n 75, p 51.97. Roach, above n 93, pp 242–245; K Roach, ‘The world wide expansion of anti-terrorismlaws after 11 September 2001’ (2004) 3 Studi Senesi 487 at 490–503.
SCR 1566 redressed the earlier failure in 2004 through provision of a soberlyrestrained definition, it was far too late to influence the content of domestic anti-terrorism law.
Beyond the loss of a chance to finally realise international agreement on a workabledefinition of ‘terrorism’ in the immediate aftermath of the September 11 attacks, SCR1373 is criticised by Roach for its emphasis on terrorism financing and immigrationcontrols despite the lack of evidence that either would have prevented 9/11. Its role asa catalyst for the rapid creation by domestic regimes of new terrorism offences aimedat prevention exacerbated any existing predilection for executive governments torailroad legislatures.98 The laws that result invariably display the deficiencies of sucha poor deliberative process. In particular, they reflect the deeper failure of the SecurityCouncil to ‘provide a principled foundation for global counter-terrorism’.99 Theimportance of maintaining strong respect for human rights while ensuring nationalsecurity was missing in the signals sent by the UN in the first few years after 9/11. Thechair of the UN’s Counter-Terrorism Committee explicitly acknowledged that moni-toring compliance with international human rights law was not within the Commit-tee’s mandate. It thus took an entirely one-sided approach to its task of examiningaction taken in response to SCR 1373 by Member States. Although there has beensome blow-back against this limited perspective, Roach remains dissatisfied with theCommittee’s attention to human rights matters and argues that the work of other UNcommittees and bodies on redressing the imbalance is not an adequate solution. It isdifficult to argue with his overall assessment, both as to the degree to which the UNfailed to operate as a force for good governance at a moment when its influence wasespecially potent and as to the extent of the damage to domestic laws and human rightsprotection that resulted from that failure.
Both because of the UN call to arms in SCR 1373, but also its deficiencies on keymatters such as a definition, global anti-terrorism law has seen a great deal of‘migration’ between jurisdictions as they have sought to construct domestic legalframeworks by way of response. As already mentioned, the UK has been highlyinfluential in this respect. This is especially so in Australia which has been enthusiasticin its adoption – and then adaptation – of measures from that jurisdiction. But the tiesof the Commonwealth have worked in more interesting ways as Roach makes clear.The idea of ‘repatriation’ to the UK of elements of its colonial legacy in countries suchas Singapore and Malaysia – notably administrative detention – is something that hasnot attracted as much attention as more direct forms of transference. The emergencypowers used under the British Mandate in Palestine have also, of course, had aninfluence on those exercised by the Israeli government under its long period ofemergency. That many of these measures have strong present day echoes in domesticUK law says a lot about the tumult into which 9/11 threw Western nations. As Roachsays, security legislation in certain countries that previously attracted condemnationwas effectively rehabilitated by the approval of the Counter-Terrorism Committee andthe movement by more mature liberal democracies to replicate some of the essentialfeatures of those laws. By contrast, fledgling democracies, such as Indonesia, thattried to hold firm against a return to repressive measures attracted internationalcriticism.
98. A Lynch ‘Legislating anti-terrorism: observations on form and process’ in Ramraj et al,above n 75, ch 7.99. Roach, above n 75, p 432.
It is significant that the book’s title makes no direct reference to ‘law’. While lawis obviously a central concern, there is much more to Roach’s analysis of the ‘9/11effect’. At the outset he explains that ‘all countries responded [to 9/11] in a mannerthat reflected their own particular histories and legal, political and social cultures’.100
Roach is highly attuned to these other dimensions and the discussion about transna-tional connections and influence is the clearest illustration of this. What is fascinating,now that we have moved (hopefully) into the more reflective phase of our post-9/11experience, is to ask whether positive modelling across jurisdictions has much pros-pect of success. Or does the momentum of global action only drive sub-optimalresponses?
Undoubtedly the path to what Roach calls ‘sustainable security policies’ is notgoing to be as swift or simple to tread as that down which many states have wandered(or should that be ‘run’) in the last decade, but already there are some signs thatexperimentation with ‘shortcuts’ such as immigration powers, control orders and otherinnovative forms of detention is exhausted and that the inevitable course is a return tofavour of the more traditional processes of the criminal law. Definite challenges, evenon this score, remain – most notably the intersection of evidence and intelligence andthe impact that this has for open justice. That issue is dealt with strongly in this bookand in many ways presents as the most intractable of problems, but Roach, as well asothers with long expertise in the area, have continued to make suggestions as to waysforward.101 Beyond the positives anticipated by a return to criminal justice, perhaps themost hopeful counter-terrorism strategy that is recounted in this book is the use bySingapore of rehabilitation programmes for those attracted to religious extremism. Itwould be good to think that jurisdictions will prove adept at learning and adaptinginnovations from each other that go to the primary goal of curbing the pull to politicalviolence of alienated members of their communities. That is not to be ‘soft’ onterrorism, but it just might be more effective in assisting its decline than some of themore aggressive initiatives launched in recent years and which are detailed in thisstudy.
Roach insists that sustainable, indeed we might go so far as to say successful,security laws and policies must be alive to human rights concerns, if only becauseabuses clearly assist no one but the enemy. But this is also a matter of process. Theremust be a move away from executive dominance and haste and also excessive secrecythat thwarts meaningful oversight. Goldsmith’s criticism that President Bush wasfoolishly dismissive of ‘the soft factors of legitimation – consultation, deliberation, theappearance of deference, and credible expressions of public concern for constitutionaland international values’ has significance for many other nations also.102 Quelling theoppositional and knee-jerk political responses that defined counter-terrorism inthe immediate wake of 9/11 and arriving at a more consensus-driven approach to theproblem of political violence over the longer term should avoid counter-productiverights violations. Is it too much to hope that global efforts in counter-terrorism goingforward are not simply a continuation of the many pitfalls and false starts that Roachhas catalogued here?
100. Ibid, p 1.101. See, eg, C Walker ‘Intelligence and anti-terrorism legislation in the United Kingdom’(2005) 44 Crime, Law and Social Change 387.102. Goldsmith, above n 90, p 215.
Whatever transpires, it is hard to see this book being bettered as the comprehensiveanalysis of security law and policy in the decade after September 11.
ANDREW LYNCH103
Sitting in Judgment: The Working Lives of Judges, by PENNY DARBYSHIRE. Oxford:Hart, 2011, 456 (+ index) (£27.50 hardback). ISBN: 978-1-84946-239-6.
This is an important, interesting and, above all, enjoyable book that charts the day-to-day working lives of judges at every level of the court system in England and Wales.Penny Darbyshire’s method combines observational research with interviews. Overthe course of seven years, she shadowed 40 judges, interviewing a further 37. Theresult is a rich and revealing ethnographical study that achieves that rare feat ofenabling lawyers and non-lawyers alike to better understand what judges in variouscourts actually do, how they go about doing it and, perhaps most intriguingly, whatthey think about each other. As Clifford Geertz put it, ethnography is an elaborateventure in ‘thick description’ that encourages us to interrogate ‘our own constructionsof other people’s constructions of what they and their compatriots are up to’.104 Thetask of ethnographers is to uncover the meanings that particular practices hold forsocial actors and to explain what this suggests about the society in which the practicesare found. In this book, Darbyshire offers ‘thick descriptions’ of judges up and downthe judicial hierarchy, relying on their own words to capture their daily working habitsas they preside in court, deliberate in private, lunch in dining rooms, completepaperwork in chambers, travel to and from lodgings and so on. This is a highlyambitious task: to provide meaning and context to observed actions of disparateactors, from the overworked district judges in chaotic magistrates’ courts in differentgeographical locations to our top judges tackling the most important legal questions inthe rarefied atmosphere of the UK Supreme Court. Admittedly, one of Darbyshire’sfindings is that although courts retain distinct cultures, centralised management andtraining have rendered judges much less different from each other than was once thecase. That said, it is still an exceptionally ambitious task. For the most part, it is onethat Darbyshire performs well, and ultimately she succeeds in her goal of portrayingdifferent types of judges confronting in their working lives all manner of humanexperience.
The book is most gripping when Darbyshire offers thick descriptions of judges inlower courts. For example, she offers an especially compelling account of the strainand relative isolation experienced by district judges in magistrates’ courts. Thedescription of ‘Portia’, a newly appointed district judge hearing youth crime in aninner London court, and ‘the junior gangland that constituted Portia’s world’, isdifficult to forget.105 Day after day, hour after hour, Portia’s court is filled with the grimconsequences of youth knife crime, child drug-runners and youth gang rapes. The nearminute-by-minute breakdown of a morning in Portia’s court shows ‘just how“summary” summary justice is . . . despite the seriousness of some charges’.106 Thefrustration caused by delays and the wasted resources that flow from cases routinely
103. Gilbert + Tobin Centre of Public Law, University of New South Wales.104. C Geertz ‘Thick description: towards an interpretative theory of culture’ in The Interpre-tation of Cultures (New York: Basic Books, 1973) p 9.105. P Darbyshire Sitting in Judgment (Oxford: Hart, 2011) p 169.106. Ibid, p 155.
collapsing because of consistently inept lawyers is all too easy to grasp. With all of thepsychological and physical strain that attends the grim realities of her court, it is littlewonder that Portia develops a stress-related illness within a year of her elevation to thebench. Darbyshire first shadowed Portia in 2004; by 2009, Portia ‘despaired of parentsand had become cynical about the youth justice system’.107 In a second youth court,‘Guy’, a more experienced district judge, dealt with many children before theirsolicitors arrived; a practice he has adopted in response to the fact that overstretchedcriminal solicitors in his court take on more cases than they can handle just to makea living. It is through transient examples from the working lives of Portia and Guy thatDarbyshire reveals the shaped behaviour of overworked district judges in chaoticmagistrates’ courts.
Above all, it is the relative isolation of district judges in magistrates’ courts thatsticks in the mind. Not only are they isolated from the lay bench, they are isolatedfrom judges in higher courts as well, who they feel have little understanding of whatthey do. As Darbyshire explains, there are historic reasons for this isolation. Prior to2000, district judges in magistrates’ courts were seen as a type of professionalmagistrate and were managed, trained and recruited separately. What this bookreveals, however, is the extent to which this sense of isolation persists, with its legacyreflected in a low level resentment shared by many district judges towards circuitjudges. Darbyshire also points to a ‘status consciousness’ on the part of district judgesin the county court, which takes a concrete form in those courts where there areseparate dining rooms for district judges and circuit judges, to the ‘lasting irritation’of the former and the ‘ongoing embarrassment’ of the latter.108
Somewhat less compelling is Darbyshire’s account of the senior judiciary. True, thebook conveys the exceptional intellect and impressive work ethic of senior judges aswell as the fast-paced and challenging life of newly appointed judges in the high court.Problems familiar in the lower courts, such as the mixed quality of legal representationand the patience required to aid litigants in person, reappear in the high court. Thecollegiality of the Court of Appeal and the unavoidable haste with which landmarkprecedents are often produced, are also nicely captured in the book. Enviable accessto the deliberations of the Court of Appeal allows Darbyshire to illustrate the impor-tance of pre-deliberation, recounting an episode where three judges pre-deliberate awhole day’s list in just fifteen minutes. Absent, however, is much discussion of theadministrative roles of some senior judges. This seems a missed opportunity given thatadministration is an increasingly important – and, of course, time-consuming – part ofmany senior judges’ working lives. More generally, it is difficult to shake the feelingthat compared with her descriptions of the nitty-gritty work of district and circuitjudges, Darbyshire has not been as successful in decoding the rituals, practices andtraditions of the senior judiciary.
This is especially true of the chapter on judges in our top court. Despite aninteresting account of two law lords disposing of five petitions for leave in just fifteenminutes while one still dons his cycling shorts and cerise top, Darbyshire’s descrip-tions of the working lives of our top judges seem thin. Little sense is conveyed, forexample, of how personal dynamics shape the working of a twelve-member court offinal appeal. Similarly, while Darbyshire’s motivation in writing the book was toexplore the mismatch between real judges and the ‘folk devil’ image of them as old,white, male, privileged, out of touch, pompous and unpleasant, she seems rather
reluctant to examine the significance of the myth to which our top judgescling – namely that they are not just above party politics, but also ‘apolitical’ in abroader sense. Presumably the challenge Darbyshire encountered was partly one ofaccess. She shadowed two law lords/Supreme Court justices, perhaps too few todevelop much of a feel for the workings of our top judges. A more significantchallenge was likely timing as it must have been difficult to get to grips with the subtlecultural changes that have presumably attended the move from Committee Room 1 inthe Palace of Westminster to Middlesex Guildhall. All in all, the chapter on our topjudges is a little disappointing and, insofar as it records the context of daily practicesof our top judges without uncovering the full social meaning of those practices, itseems out of step with the rest of the book. Adding to the chapter’s sense of disloca-tion is the inclusion of a rather cursory review of the literature on the law lords –something that was absent from (and without much loss to) the chapters on the lowercourts.
Overall, though, this is a fascinating book. For those with only a passing familiaritywith the work of judges, there will be much to learn. For seasoned court-watchers,there will be also much of interest; it is riveting to read longer serving judges recountin their own words the total absence of formal training that accompanied theirelevation to the bench and the almost unimaginable casualness of the process bywhich they were appointed in the first place. More than anything, this is an enjoyablebook. It is to Darbyshire’s credit that this book is not only highly informative, butthoroughly absorbing as well.
GRAHAM GEE109
Lives of the Law, by TOM BINGHAM.Oxford: Oxford University Press, 2011. xiv + 371 + (index) 16pp (£19.99 hardback).ISBN 978-0-19-969730-4.
The late Tom Bingham (the Rt Hon the Lord Bingham of Cornhill) exercised withdistinction a succession of high judicial offices: puisne judge; Lord Justice of Appeal;Master of the Rolls; Lord Chief Justice; Senior Law Lord. Extra-judicially, he wasentrusted with a major and very sensitive inquiry in 1991 into the collapse of the Bankof Credit and Commerce International, and delivered many lectures to academic andprofessional audiences, each elegantly shaped to the audience and the occasion,exquisitely crafted, learned and reflective. After retiring from the bench, he was anactive visiting professor at the University of Oxford during the distressingly shortperiod left to him. In all his roles he was respected, admired and liked: intellectuallyincisive, humane, unfailingly courteous and considerate, he offered an example ofclarity of thought, scholarship, tolerance and gentlemanliness. He famously wrote allhis judgments in longhand, a habit which must be partly responsible for their con-ciseness, clarity and elegance. His commitment to the ideals of the rule of law was theinspiration for the Bingham Centre for the Rule of Law, launched in 2010 just after hisdeath, which deprived the Centre and the common law world of a great supporter andan inspiring mind.
Lives of the Law is a posthumously published collection of selected essays andspeeches written between 2000 and 2010, with an introduction by Professor Sir
Jeffrey Jowell, the first Director of the Bingham Centre.110 Twelve of the 22 items inthe collection have been published previously. Papers are arranged in five parts: TheConstitution and the Rule of Law (itself divided into five papers ‘looking backward’and two ‘looking forward’); The Business of Judging; Human Rights and HumanWrongs; The Common Law; and (giving the book its title) Lives of the Law, offeringaccounts of the legal and constitutional contributions of Samuel Johnson and JeremyBentham. As one would have expected, each paper is worth reading for its insight,clarity of analysis and humanity, as well as being enjoyable for its literary style andflashes of humour. These factors alone would make the book worth its price (which isvery reasonable for a hardback).
In themselves, however, they would not justify a review in a learned journal. Inapproaching a collection of this sort, a reviewer has to ask two questions over andabove that of the quality of the individual pieces. First, is the book a coherent whole?Do the disparate elements combine to form something more than the sum of the parts?Secondly, do we learn from it anything about the author as well as about the law? Theanswer to each question is, I think, affirmative.
Let us think first about coherence. Bingham did not revise any of the pieces forpublication in the book. It is not even clear from the book whether Bingham himselfselected them, or decided to arrange them in the five parts already mentioned. Thereis no attempt to identify overarching themes, or to cross-refer from one paper toanother. They are not, then, chapters of a whole book. Nevertheless, two themes runclearly throughout the varied essays: the relationship between history and judicialauthority, and the importance to society of judges who are judiciously creative andindependent of government.
Bingham admired Dicey. In his extra-judicial writing he often thought it importantto show how his ideas were at least consistent with, if not identical to, Dicey’s,111 andboth judicially and extra-judicially he upheld Dicey’s view of parliamentary sover-eignty.112 Yet Bingham was an historian manqué,113 whereas Dicey discounted thevalue of ‘antiquarianism’ to the constitutional lawyer: ‘It throws as much light on theconstitution of the United States as upon the constitution of England, that is, it throwsfrom a legal point of view no light upon either one or the other.’114 Dicey recognisedthat the common law takes the past seriously in the form of the appeal to precedent –‘the idea of retrogressive progress’ – but considered that ‘the appeal to precedent is inthe law courts merely a useful fiction by which judicial decision conceals its trans-formation into judicial legislation’.115 Bingham, however, saw precedent differently.His viewpoint was that of a judge who took seriously his ‘sworn duty to do right byall manner of people, without fear or favour, affection or ill will, according to the laws
110. A selection of Bingham’s earlier work was published as T Bingham The Business ofJudging: Selected Essays and Speeches (Oxford: Oxford University Press, 2000).111. See eg Lord Bingham of Cornhill ‘The rule of law’ [2007] CLJ 67, 75.112. See eg R (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 AC 262, HL at [9],[30], [32] per Lord Bingham of Cornhill; Lord Bingham of Cornhill ‘The rule of law and thesovereignty of Parliament’ (2008) 19 King’s Law Journal 223.113. Bingham took a First in History at Oxford. In his introduction to the book, Sir JeffreyJowell refers to the address by Lord Mackay of Clashfern at Lord Bingham’s memorial service,saying that Lord Bingham had described himself as an historian manqué (Bingham, Lives of theLaw [hereafter ‘Lives’] p vi).114. AV Dicey Lectures Introductory to the Study of the Law of the Constitution (London:Macmillan, 1885) p 15.115. Ibid, p 19.
and usages of this realm’.116 Giving examples from many areas of private law, hedenied both that judicial law making was an exercise of judicial legislation and thatprecedent could be a strait-jacket. The House of Lords’ 1967 Practice Statementrelaxing the extent to which the House was bound by its own previous decisionsaccepted that ‘the House could reject a bad rule in favour of a better’.117
What was the difference between this and legislation?
‘The judges are respectful of principle and vividly alive to the value of precedentas a source of certainty, stability, and continuity. . . . But the inescapable fact is thatthey do have to make choices, and unless superseded by Act of Parliament theirchoice determines what the law shall be.’118
Courts, especially top courts, have to decide cases in which there are good argumentsof principle on each side. Any decision represents a choice. A judge is not permittedto say that she cannot decide a case which is within her jurisdiction. She must choose.The range of possible choices is not, however, untrammelled as a legislator’s would(in theory, at least) be. The chosen rule or principle must sufficiently resolve the pointat issue, and the judgment, unlike a statute, must explain the relationship between itand earlier statements of relevant principles. Bingham is right, therefore, to quote thelate Professor Peter Birks: ‘Authority in interpretation of the law naturally derivesfrom learning combined with good judgment and discretion in its deployment . . . thecommon law has always put its jurists on the bench.’119
History, or historical interpretation, is important to law for another reason. It ishuman nature to look for exemplars in the past, both to guide and to give ethicalrespectability to one’s plans for present and future. There never was a constitution orlegal system which operated in an ideal way. Nevertheless, we can seek out examplesof what we regard as desirable principle or practice in earlier times, and treat them forargumentative purposes as established parts of the law and the constitution. This mightbe bad history, but it can create good law. As Dicey observed:
‘The supposition . . . that the cunning of lawyers has by a mass of legal fictionscorrupted the fair simplicity of our original constitution, underrates the statesman-ship of lawyers as much as it overrates the merits of early society. The fictions ofthe Courts have in the hands of lawyers such as Coke served the cause both ofjustice and of freedom, and served it when it could have been defended by no otherweapons. . . . Nothing can be more artificial, nothing more unhistorical, than thereasoning by which Coke induced or compelled James to forego the attempt towithdraw cases from the Courts for his Majesty’s personal determination. But noachievement of sound argument, no stroke of enlightened statesmanship, everestablished a rule more essential to the very existence of the constitution than theprinciple enforced by the obstinacy and fallacies of the great Chief Justice.’120
Bingham provides numerous examples of the impact of documents or events byreason of the symbolic importance attached to them by later generations on the basis
116. Lives, p 156.117. Ibid., p 134.118. Ibid.119. P Birks ‘The heap of good learning: the jurist in the common law tradition’ in BMarkesinis (ed) Law Making, Law Finding and Law Shaping: The Diverse Influences (Oxford:Oxford University Press, 1997) pp 113–114, quoted in Lives, pp 127, 143.120. Dicey, above n 5, pp 18–19 (footnote omitted).
of an exaggeration of their original significance. They include the iconic role ofMagna Carta in establishing the rule of law round the English-speaking world, andjudicial ingenuity in developing the writ of habeas corpus into an iconic defence ofliberty for purposes as diverse as combating slavery and protecting wives and childrenagainst abuse by husbands and fathers.121 Bingham makes the important point thatthese beneficial developments do not happen by accident. In relation to habeas corpus,he is struck by three points. The first two are ‘the imaginative energy of the judges intransforming a procedure for summoning defendants and suspects into a safeguard ofpersonal liberty’ (which, as he points out, is what is sometimes denigrated as judicialactivism), and the contribution made to this process by ‘a handful of outstandingjudges . . . as compared with the ordinary ruck of their more supine or authoritariancolleagues’, which ‘gives the lie to any notion that judges are colourless and, in effect,interchangeable’. But Bingham is also a realist, and recognises that ‘in times ofperceived emergency when the security of the people is trumpeted as the highestpolitical imperative, personal freedom, and with it the remedy of habeas corpus, arethe first casualties’.122
This leads into the other pervasive theme of the volume: judicial creativity andindependence, and the relationship between judges and politicians. It follows fromwhat Bingham says about the character and authority of the common law that judgescan be creative in the use of the material available to them, and the best judges arethose who are judiciously creative. This creativity may be found in the ways judgesshape or reinterpret precedent and in the sources of authority with which they under-pin their judgments. Bingham was a master of both. His concise dissenting opinion inR (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2),123
attempting to make the public law of prerogative powers over dependent territoriesconsistent with a twenty-first-century rather than nineteenth-century model of theresponsibilities of governors, shows him to be a judge who recognised the use ofhistory but had little time for its abuse. In other cases, and in his extra-judicial writing,he displayed his openness to judiciously chosen non-UK sources of legal ideals andvalues to shape good domestic law. His opinion in the Belmarsh case, A v Secretary ofState for the Home Department,124 shows him steadily piling up references to nationaland international standards, derived from non-legal sources and soft law as well asmore traditional sources, until by rhetorical as well as logical means their powerbecame overwhelming. He also carefully dismissed similarly disparate material uponwhich the Attorney General had relied. His partly concurring, partly dissentingopinion in the leading case on the use of torture, A v Secretary of State for the HomeDepartment (No 2),125 is another example of this.
Bingham’s openness to a range of sources and influences was an important aspectof his judicial philosophy. He expounded its value, as well as addressing its associatedmethodological challenges, in his Hamlyn Lectures.126 In ‘The Internationalization ofthe Common Law’127 he examines the interplay of trends of authority on similar points
121. Lives, chs 1, 13, 14.122. Ibid., pp 219–220. See also chs 8, 9, 12.123. [2008] UKHL 61; [2009] AC 453 HL at [68]–[74].124. [2004] UKHL 56; [2005] 2 AC 68 HL at [17]–[24], [34]–[42], [59]–[70].125. [2005] UKHL 71; [2006] 2 AC 221 HL at [11]–[13], [17], [29]–[45].126. TH Bingham Widening Horizons: The Influence of Comparative Law and InternationalLaw on Domestic Law (Cambridge: Cambridge University Press, 2010).127. Lives, ch 20.
in different common law jurisdictions. By insisting on an open but not uncriticalapproach to external influences he was a leader in avoiding the parochialism whichhas recently set into the US Supreme Court. The rule of law was not, he thought,concerned only with the politico-legal systems of single states. It was a virtue ofinternational law at its best, when major powers agree to abide by adjudications ofdisputes even if the result favours minor powers as in the Alabama claims arbitra-tion128 which he examines closely in Chapter 2. Within states, he considered that therule of law ‘requires compliance by the state with its obligations in international as innational law’.129 A lawyer or politician whose legal horizons are bounded by thejurisdiction in which she works is not making use of available resources.
The international values which buttressed Bingham’s opinions in the cases men-tioned earlier were distinctively legal values. Bingham accepted that they were not thesame as respectable political values, and recognised that in times of threat politiciansand, indirectly, judges face a dilemma. Should the rule of law’s commitment tofreedom give way to the perceived requirements of public safety? In Chapter 12 ofLives, ‘Personal Freedom and the Dilemma of Democracies’, Bingham reviews thehistory of executive-authorised detention in wartime and the different attitudes ofjudges and politicians at different times and in different places. Bingham’s conclusionon this issue highlights two points, both derived from his view of the rule of law. First:‘The most potent safeguard against executive excess must always be found in publicloyalty, even in times of crisis, to a tradition of liberty.’ The public, that is, gets asmuch liberty as it collectively deserves. The price of liberty is eternal vigilance.130
Secondly, courts must treat legislation as not authorising executive detention whichsubverts individual liberty unless the legislation does so in plain and specific language,and judges must rigorously police the legal boundaries of any such power.131 That isdistinctively a role for judges. While courts and government have a shared interest inworking closely together to ensure that the administration of justice is quick, smoothand economical,
‘there is a natural, inescapable, and not undesirable tension, greater at sometimes than at others, between those whose mission it is to govern and those whosemission and sworn duty it is to do right by all manner of people, without fear offavour, affection or ill will, according to the laws and usages of the realm’.132
Such tensions, rather than general consensus, lie at the heart of a properly functioningconstitution, as I have myself ventured previously to suggest.133
It means nothing, therefore, to describe judges as ‘active’ or ‘passive’ according tohow popular their decisions are with government. ‘There are . . . countries in the worldwhere every judicial decision finds favour with the government, but they are not places
128. JB Moore International Arbitrations to which the US has been a Party, 6 vols(Washington, DC: US Government Printing Office, 1898) vol 1, ch 4.129. Lives, p 12. See further T Bingham The Rule of Law (London: Allen Lane, 2010).130. JP Curran ‘Address in connection with the right of election of the Lord Mayor of Dublin,10 July 1710’:‘The condition upon which God hath given liberty to man is eternal vigilance;which condition if he break, servitude is at once the consequence of his crime, and thepunishment of his guilt.’131. Lives, p 208.132. Ibid., p 156.133. D Feldman ‘None, one or several? Perspectives on the UK’s constitution(s)’ (2005) CLJ329.
where one would want to live.’134 Judges, as noted earlier, have to decide the casesbefore them, and in doing so must make choices. This is as true in the area of publiclaw as it is, Bingham points out, in private law. In Chapter 8, ‘The Judges: Active orPassive?’, and Chapter 20, ‘A Duty of Care: The Uses of Tort’, he draws on decisionson the scope of liability for negligence. He examines judicial creativity in commerciallaw in Chapter 18, ‘The Law as the Handmaid of Commerce’, and Chapter 19, ‘A NewThing Under the Sun: The Interpretation of Contracts and the ICS Decision’. InChapter 13, ‘Habeas Corpus’, as already noted, Bingham sketches Lord Mansfield’suse of the remedy to allow judges to involve themselves in family disputes.135 Prin-cipled and pragmatically desirable creativity on the part of judges is not confined topublic law; indeed, it is the foundation of large parts of private law, whether judges areopen about their creative role or disguise it behind an appeal to precedent.
We can turn now from Bingham’s judicial philosophy to the man himself. What dowe learn about him? First, he shows us the importance of not being too earnest (or inother words of having fun). Bingham obviously thoroughly enjoyed writing anddelivering these papers. He is a serious thinker, and so enjoys thinking seriously aboutthings, but has a twinkle in his eye and joy in his heart. In ‘Dicey Revisited’, Binghamrevels in laying bare the odd contradictions and anomalies in Dicey’s character andcareer: an outstanding academic who wanted to be a judge; a man who thought thathistory played no part in law who nonetheless considered that his best work was awork of history (though Bingham notes that Dicey ‘formed his opinions first and thensought material to support them – not an approach to be recommended for the writingof history or, for that matter, judgments’); and so on.136 In ‘Mr Bentham is Present’, heconstructs, in terms which Jeremy Bentham might well have used, comments whichBentham, with his ‘hyperactive critical intelligence’, might well have made on currentissues in the law and the constitution: codification; demystifying the law; penal policy;and the House of Lords. These are persuasive and challenging, but Bingham alsobrings out the complexity, enthusiasm and eccentricity of Bentham’s personality. Inthe course of an opening sentence covering almost a page, he shows how Bentham was‘a far cry from the humourless, pedantic, materialist ideologue of popular imagina-tion’, then continues: ‘He was not a man whose praise was easily earned, but I hopethat the length of my opening sentence might arouse his admiration, even perhaps atouch of envy.’137
In ‘Governments and Judges: Friends or Enemies?’, Bingham notes that the threatof a successful legal challenge must ‘have its effect on plans at the formative stage:many a bright twinkle in a minister’s eye must fade in the light of adverse advice givenby departmental lawyers’.138 The author’s eye reflects the twinkle; he has fun, so weenjoy reading him. Secondly, Bingham’s humanity shines through. His concern forvulnerable, disfranchised and unpopular people is clear. His analyses (already men-tioned) of the judicial role relative to government, law’s treatment of personal liberty,the development of habeas corpus and the dilemma of democracies in times ofperceived crisis show not only a sharp eye for injustice, but a belief that it is thetask of lawyers to combat it where possible, and that it is proper for judges to be
134. Lives, p 146.135. Ibid, pp 216–218.136. Lives, p 44 (footnote omitted).137. Ibid, pp 356–357.138. Ibid, p 150.
judiciously and imaginatively creative in turning available legal instruments to thattask and to developing new mechanisms when necessary and constitutionally appro-priate, in public law as in private law.
Finally, Bingham reveals himself as a moderate progressive with regard to consti-tutional reform. His chapters on the UK’s changing constitution139 show his belief thatchange should be principled and practical, conserving the historical authority of theconstitution so far as it is consistent with underlying constitutional principles to whichthe nation is committed. One of Bingham’s obituarists noted: ‘Bingham was oftendescribed as a liberal with a small “l”, and when asked about the description headmitted that he “wouldn’t want to be called illiberal”.’140 In short, Bingham emergesas a fine example of a jurist on the bench; a scholarly, reflective, judiciously creativejudge, with good judgment. Our legal system is the better for his contributions to it,and any politician, lawyer or law student will enjoy, and gain in understanding from,reading this book.
DAVID FELDMAN
University of Cambridge
The Margin of Appreciation in International Human Rights Law: Deference andProportionality, by ANDREW LEGG.Oxford: Oxford University Press, 2012, 264pp) (£70 paperback). ISBN 0199650453.
The doctrine of margin of appreciation is probably one of the most widely discussedjudicial creations of the European Court of Human Rights (ECtHR). Neither theEuropean Convention on Human Rights (ECHR), the American Convention onHuman Rights, nor the International Covenant on Civil and Political Rights mentionthis doctrine. It was developed in the case-law first of the European Commission ofHuman Rights and the ECtHR and then arguably accepted by the Inter-AmericanCourt of Human Rights (IACtHR) and UN Human Rights Committee (UN HRC)(using the author’s terminology I will call these judicial institutions ‘Tribunals’).
It is quite possible that the margin of appreciation will soon be recognised byexpress inclusion into the ECHR. In April 2012 at the high level conference inBrighton (UK) the Contracting Parties to the ECHR adopted a declaration on thefuture and reform of the ECtHR.141 According to this declaration, a reference to theprinciple of subsidiarity and the doctrine of the margin of appreciation as developedin the case-law of the ECtHR should be included in the Preamble of the ECHR. Suchlegal recognition brings added value to the monograph under review which focusespredominantly on the doctrine of margin of appreciation.
‘Margin of appreciation’ is eagerly endorsed by Member States because it providesthem with some freedom or discretion in the implementation of international humanrights norms. Having said that, the margin of appreciation doctrine does not enjoyunanimous acceptance by academics and civil society activists. Some of them arguethat deployment of the margin of appreciation is tantamount to rejection of justice and
139. Ibid, chs 4 (‘The Evolving Constitution’), 5 (‘The Old Order Changeth’), 6 (‘A WrittenConstitution?’), 7 (‘The Future of the House of Lords’) and 10 (‘The Highest Court in the Land’).140. Anon ‘Lord Bingham of Cornhill’ The Daily Telegraph 12 September 2010, availableat http://www.telegraph.co.uk/news/obituaries/law-obituaries/7997574/Lord-Bingham-of-Cornhill.html.141. Brighton Declaration 2012, available at http://hub.coe.int/en/20120419-brighton-declaration/
inappropriate judicial deference.142 The monograph authored by Andrew Legg is anattempt to reconceptualise the margin of appreciation and through this reconceptuali-sation to offer a defence of the doctrine.
Legg argues that the margin of appreciation is not a denial of justice or abdicationof judicial responsibility but a useful tool allowing the court to take into accountconsiderations that are contextual and not immediately relevant to the matter at hand,but at the same time should not be abandoned. The author defines the margin ofappreciation as ‘an adjudicatory technique enabling the Tribunals to navigate a coursethrough the competing considerations, and provides a vehicle through which lawyersfor states and applicants can make their claims’.143 To reconceptualise margin ofappreciation the author uses the theory of practical reasoning.
It is important to summarise what is meant by the theory of practical reasoning herein order to grasp the main idea advocated by Legg. According to this theory, theTribunals in arriving at a particular decision consider first- and second-order reasons.The first-order reasons are those which are immediately relevant to the case at hand.The second-order reasons are those which are less relevant and straightforward, butthey determine the context in which the case is taking place. The author uses anexample of a person who ‘because of tiredness decided not to assess whether or not toaccept an investment proposal, thus losing the opportunity’.144 Tiredness is the second-order reason since it is not directly relevant to the matter at issue but can have asubstantive effect on the final decision. In this example, the first-order reasons wouldbe the interest rate, which would have been earned in case the investment goes ahead,the risk assessment, the availability of necessary funds and other directly relevantconsiderations. Tiredness here is an exclusionary second-order reason that preventsany considerations of the first order reasons.145 Legg argues that some second-orderreasons can influence reasoning differently – namely instead of excluding first-order reasons, second-order reasons can increase or decrease the significance offirst-order reasons:
‘The tribunal considers the first order reasons, and applies second order reasonsto them. The second-order reasons may cancel out, strengthen or reduce theordinary weighting of first-order reasons.’146
Using terminology of first- and second-order reasons the author attempts to describethe margin of appreciation as a non-exclusionary second-order reason.
According to the author this approach to the margin of appreciation provides aresponse to those who argue that the margin of appreciation is tantamount to non-justiciability. It is so because the margin of appreciation is just taken into account butit does not preclude the Tribunals from relying on the first-order reasons. Legg claimsthat the Tribunals do not stop their reasoning on the point when the scope of marginof appreciation is identified. It means that the margin of appreciation is not a cut-offpoint for judicial reasoning but a weight that can increase or decrease persuasivenessof the submissions of the parties.
142. See eg E Benvenisti ‘Margin of appreciation, consensus, and universal standards’ (1999)31 Journal of International Law and Politics 843; G Letsas ‘Two concepts of the margin ofappreciation’ (2006) 26 OJLS 705.143. A Legg The Margin of Appreciation in International Human Rights Law (Oxford: OxfordUniversity Press, 2012) p 58.144. Ibid, p 18.145. For more examples, see ibid, pp 18–23.146. Ibid, p 195.
This approach indeed creates an original focus on the margin of appreciation whichis often seen as a ‘black and white’argument, meaning, if there is margin of appreciationthe Tribunals will not interfere and alternatively if the issue is not in the margin ofappreciation then the Tribunals will review the first-order reasons. Legg suggests thatthe latter approach is not correct. One can, however, note that often it is hardly possibleto distinguish between first- and second-order reasons. Moreover, the scope of marginof appreciation might sometimes depend on first-order reasons. The ECtHR has listedthe variables that affect margin of appreciation in S and Marper v the United Kingdom:
‘The breadth of this margin [the margin of appreciation – KD] varies and dependson a number of factors including the nature of the Convention right in issue, itsimportance for the individual, the nature of the interference and the object pursuedby the interference. The margin will tend to be narrower where the right at stake iscrucial to the individual’s effective enjoyment of intimate or key rights. Where aparticularly important facet of an individual’s existence or identity is at stake, themargin allowed to the State will be restricted. Where, however, there is no consensuswithin the Member States of the Council of Europe, either as to the relativeimportance of the interest at stake or as to how best to protect it, the margin will bewider.’147
According to this list the importance of the right for the individual can determinewhether the issue falls within the scope of margin of appreciation or not. Suchimportance is probably a first-order reason which nevertheless influences the marginof appreciation.
Another troublesome variable is the ‘nature of the right’, which also resembles afirst-order reason. However, the author argues against this suggestion pointing out that
‘the nature of the right can provide some assistance in identifying the relevantfirst-order considerations in a case, and can give indications as to the strength ofsuch reasons. This has implications as to how weighty the second-order consider-ations need to be before a margin of appreciation will have much impact in anydecision made by the Tribunals.’148
From this quote it seems that the ‘nature of the right’ is neither a first- nor asecond-order reason, but something else.
The author attempts to set out a very neat theory in an area where legal practice isdiverse and often lacks consistency. Legg argues that:
‘The margin of appreciation is not understood as akin to non-justiciability. Theremay be cases in which the Tribunals mistakenly use arguments for deference as areason not to engage in a thorough reasoning process but this would be to producea poor and unreasoned decision rather than an error attributable to the concept ofthe margin of appreciation.’149
It is quite hard to argue against this logic. It seems to suggest that if a decision of theTribunal does not fit this theory, this Tribunal got it wrong. It should be noted that thereare quite a few examples in which Tribunals got it wrong judging from the standpointof Legg’s theory. Having said that, one of the ways to look at this theory is as an appeal
147. S and Marper v the United Kingdom [2009] 48 EHRR 50 at [102].148. Legg, above n 3, p 217.149. Ibid, p 36.
to the Tribunals to be more consistent in their reasoning. Arguably Legg’s theory is asuggestion for the future rather that an accurate description of the present.
The request for more consistency is not a new one. Bakircioglu argued that:
‘An over-subjective and unprincipled application of discretion might not onlydilute the concept of legal certainty, but also undermine the delicate structure of theEuropean Convention system, the existence of which is dependent upon the willfulcooperation of Member States.’150
Gross and Ní Aoláin have asked whether the margin of appreciation is a ‘realistic andappropriate tool’ or ‘slippery and elusive as an eel’.151 In this book, Legg has chosenthe former answer but only if the margin of appreciation fits into the framework of histheory.
Categorisation of the factors affecting the scope of margin of appreciation offeredby Legg is in line with the above mentioned academic appeal for more clarity andconsistency in determining the scope of the margin of appreciation. The authordistinguishes three major factors that can influence such scope:
1. Democracy and participation. The Tribunals are more deferential to the decisionsadopted by the Contracting Parties which reflect the will of the majority and enjoydemocratic legitimacy. Sometimes this argument is called ‘internal consensus’.152 TheTribunals are likely to increase the intensity of scrutiny if a decision of a ContractingParty is limiting democracy and participation.
2. Current state practice and international law influence. If a Tribunal is satisfied that thereis common state practice in the area the margin of appreciation will normally benarrowed down. Legg points out that:
‘Current state practice . . . operates as a reason to strengthen or heighten scrutinyof the arguments of the state. If there is a clear trend in the behaviour of other statesagainst the respondent state’s argument, then there is very little reason to accordstrength to the view of the state. Likewise, if all states appear to agree with therespondent state, the there is reason to give greater weight to its arguments.’153
The same rule is generally applicable if there is an international law instrument whichregulates the matter at issue and harmonises state practice.
3. Expertise and Competence. The Tribunals are likely to be more deferential in situationswhere the Member States are better placed to resolve a certain human rights issue.According to Legg, these areas include national security, child protection, health caredecisions, educational needs, police and civil servants’ organisations and economicmatters.
These are indeed factors that influence the Tribunals’ decisions related to the scope ofthe margin of appreciation. The author substantiates discussion of each of these
150. O Bakircioglu ‘The application of the margin of appreciation doctrine in freedom ofexpression and public morality cases’ (2007) 8 GLJ 711 at 712.151. O Gross and F Ní Aoláin ‘From discretion to scrutiny: revisiting the application of themargin of appreciation doctrine in the context of Article 15 of the European Convention onHuman Rights’ (2001) 23 Hum Rts Q 625 at 627; Lord Lester ‘Universality versus subsidiarity:a reply’ (1998) EHRLR 73 at 75–76.152. See, K Dzehtsiarou ‘Does consensus matter? Legitimacy of European consensus in thecase law of the European Court of Human Rights’ (2011) PL 534.153. Legg, above n 3, p 116.
factors with case law analysis and revision of some relevant academic writing. Mostof these arguments are very well structured and clearly articulated. However, one cannotice that the ECtHR case law dominates the narrative of the monograph underreview.
More generally it seems that the ambitious purpose to elaborate a theory applicableto all three Tribunals is hardly achievable because there are too many differencesbetween the ECtHR, the IACtHR and the UN HRC. It seems that comparing the UNHRC and the IACtHR with the ECtHR is like comparing a simple calculator with amodern computer. There are three crucial areas which make this comparison trouble-some. First, these Tribunals operate in different contexts both geographically andpolitically. Allowing wide margin of appreciation in the context of the IACtHR andthe UN HRC can have a detrimental effect on human rights protection in the Americasor worldwide. The IACtHR and UN HRC often deal with straightforward brutalviolations of human rights and therefore there is very little case-law that discusses themargin of appreciation. One can notice that the ECtHR dominates the monograph;even without reading one can notice from the table of contents that the parts relevantto the ECtHR are bigger, more detailed and nuanced. Secondly, common state practiceis one of the factors that affect margin of appreciation. The wide variety of approachesto human rights worldwide makes application of consensual decision-making in thecontext of the UN HRC and IACtHR almost impossible. Thirdly, there is much moreacademic literature dealing with the doctrine of margin of appreciation elaborated bythe ECtHR than by the UN HRC or IACtHR. It does not mean that analysis of theIACtHR and the UN HRC is totally irrelevant – quite otherwise. There are very fewacademic commentaries discussing the margin of appreciation in the reasoning of theIACtHR and the UN HRC; however, it seems premature to compare their approachwith the way the ECtHR deals with the margin of appreciation.
This monograph is an original insight into the doctrine of margin of appreciation.It will probably have some considerable impact on academic writing in the area ofhuman rights adjudication. At the same time The Margin of Appreciation in Interna-tional Human Rights Law. Deference and Proportionality has not exhausted thesubject and it adds to the discussion of the margin of appreciation rather than closingit. In order to fully appreciate this monograph one should be well familiar withinterpretation of international human rights texts. Thus this book cannot be recom-mended to someone who has just started studying the area. The monograph will be ofinterest to academics, practitioners and postgraduate students researching/working inthe area of interpretation of international human rights.
