Hard Cases, Hard Times and the Humanity of Lawby Gary Watt University of Warwick
The main argument of this essay can be summarized in this simple syllogism: law has significant public value; law is a humanities discipline; so the humanities disciplines have significant public value. That law has significant public value must be self-evident in a society, such as ours, which purports to be governed by the rule of law, but the syllogism is not referring to law in practice or to law as a political fact, but to law as an object of academic research. Does ‘university’ law have significant public value? It is submitted that it does, not only because legislators, law reformers, judges and legal practitioners are frequently reliant on legal research, but also because a great many legislators, law reformers, judges and legal practitioners have at some point received an academic legal education informed by legal research. Thus, legal scholarship has the potential to influence the power of law even at the highest levels of its practical application, indeed lawyers tend to be peculiarly well-represented in Parliament,1 no doubt because they are adept in those arts of argument and representation (let us not say ‘and misrepresentation’ – we will come to the important issue of ethics later) which are essential to the duties of a Member of Parliament. It is sobering to think how readily lawyers rise to the very highest levels of societies governed by law (Rogers 1901). Former UK Prime Minister Tony Blair was a qualified barrister, and when Blair came to power Bill Clinton, another lawyer, was President of the United States. The present incumbent of that most high of high offices, Barack Obama, is not only a former legal practitioner but also a former university professor of law.
The second premise of the syllogism asserts that ‘law is a humanities discipline’. It cannot be denied that a great deal of legal scholarship employs empirical and statistical research methodologies of the sort that one associates with the social sciences, but a major component of legal research, and the one which still dominates the content of legal education, is research into the meaning of texts and, related to it, research into the meaning of texts in practical performance. In this, legal research resembles research in such humanities disciplines as literary studies, theology, classics, history and the study of theatre and film. These disciplines are not concerned to discover the merely technical or literal meaning of texts and performance; they aim to discern the manifold ways in which a text or performance is meaningful to reader and audience. Pure research in the physical sciences is immensely valuable, but it is valuable for different reasons, and it values different things. It is concerned to measure matter but it is less concerned to ask why measurements matter. To put it another way, it is often concerned with the material origins of life but is generally quite unconcerned with the meaning of life.
Legal research as a humanities discipline, as a search for meaning, exerts a significant influence on our laws, lawyers and lawmakers. Even at the highest level of the judiciary it has been acknowledged, albeit extra-judicially, that the interpretation of a statute ‘is not a science. It is an art.’ (Steyn 2003) That must be true, for no statute can exactly anticipate the contingencies of human life, and even the most technical statutes, perhaps especially the most technical statutes, deem things to be true which have no obvious connection to material reality. The statutory definition of the security interest known as the ‘mortgage’ is a case in point. The relevant statutory provisions do not define a mortgage in terms a layperson would understand, but describe it as if it were a mischwese (hybrid) made up of various abstract legal creatures.2 It has the wings of a charge (that is, it takes effect as a charge), the talons of a fee simple (that is, a first mortgagee has the right to possess documents as if the security included the fee simple), and the scaly armour of a 3,000 year lease (that is, it confers the same protections, in the form of rights and remedies, as a 3,000 year lease). The fantasy is required because the mortgage of a freehold is actually a creature of medieval law that died out long ago, and all we have today is a charge ‘by way of’ legal mortgage.
The fantasy does not stop with statutes. In every case in civil law the task of the judge is to establish the facts on the balance of probabilities, which really amounts to producing a work of fiction that is only guaranteed to be at least 51 per cent accurate (and even that guarantee is contingent upon the accuracy of the judge's judgment). One of the first cases we teach our law students is Bernstein of Leigh v Skyviews and General Ltd (1978 QB 479), in which Lord Bernstein alleged that Skyviews, which was in the business of taking aerial photographs from a light aircraft, had trespassed into his private airspace. The evidence that Skyviews’ aeroplane had crossed Bernstein's border was inconclusive, but the judge found as a fact that Skyviews had probably flown over Bernstein's land. When we ask our students if Skyviews had crossed Bernstein's land, they usually reply ‘we do not know; the facts are unclear’. They are therefore surprised to be told that the judge's finding of fact is final, which means that when the judge said that Skyviews probably crossed the border we now know for a fact (for legal purposes) that Skyviews did cross the border. The law needs to abstract bright line certainties from the fog of life, and this process of abstraction is artificial. It depends upon the judge's technical skill and upon the judge's human art of judgment. The law purports to operate according to fact, but its facts are found in bare probabilities through an imaginative process of fiction. Since the statutes and decisions of our law are creative works of fiction, it should follow that more humane laws, a more humane legal system and a more humane legal profession will flow from legal research that is nourished from the founts of the other humanities disciplines. This essay seeks to demonstrate the truth of that claim with reference to a number of current issues which, if only to judge by the publicity afforded to them, are a matter of significant public concern; issues such as ‘the invasion of Iraq’, ‘the credit crunch’ and ‘medical ethics’. These are the ‘hard cases’ of the essay's title.
The reference to ‘hard times’ alludes to the period of financial constraint in which we currently find ourselves, but it is also an allusion to the novel by that great humanitarian author, Charles Dickens. Dickens’ Hard Times (Dickens 1854) observes that hard times produce a dehumanizing brand of economic utilitarianism, and that the same dehumanizing brand of economic utilitarianism produces hard times – a complaint that is as accurate now as it was when Dickens made it; but the novel also makes the positive observation that many of the qualities that are most valuable to the prosperity and well-being of human society (qualities such as ‘imagination’, which Dickens calls ‘wonder’ and ‘fancy’) are not qualities that can be quantified economically, but are qualities to be appreciated, and cultivated, through the arts and humanities. The main force of Dickens’ critique is directed at the well-intentioned but thoroughly misguided person of Thomas Gradgrind,3 a schoolmaster who believes that children should be ‘strictly educated’ and who processes them en masse as if he were grinding them in an industrial mill. Gradgrind is said to be a ‘man of realities. A man of facts and calculations’, who ‘With a rule and a pair of scales, and the multiplication table always in his pocket’ is ‘ready to weigh and measure any parcel of human nature, and tell you exactly what it comes to’. For Gradgrind, it is ‘a mere question of figures, a case of simple arithmetic’. He educates reason ‘without stooping to the cultivation of the sentiments and affections’. Gradgrind is perplexed that readers in the public library wonder about ‘human nature, human passions, human hopes and fears, the struggles, triumphs and defeats, the cares and joys and sorrows, the lives and deaths, of common men and women!’. We are told that Gradgrind was forever working ‘at this eccentric sum, and he never could make out how it yielded this unaccountable product’; and no wonder, for Gradgrind ‘proceeds upon the principle that two and two are four, and nothing over’ and he ‘is not to be talked into allowing for anything over’. His mind is perfectly closed. According to his cold mathematics, there is nothing of core public value that cannot be expressed in statistics; in facts and figures. When the sum is totalled, there should nothing left. And yet he finds that there is an inescapable residue of values that cannot be accounted for. He calls it eccentric, but the truth, the contrary truth, is that the unquantifiable quality of human nature is always central to what we value most. Thus he is quite right when he observes that the values of our common humanity simply do not ‘add up’. Take the example of friendship: each one us can count the number of our household pets, but (as Cicero once observed) not one of us can count the number of our friends. The nature of friendship will not submit to precise definition, and the same is true of many of the qualities that are most highly prized in human life.
These cautionary observations are highly apposite to scholarship that informs the processes by which, and the people by whom, our laws are made and enforced. Numerous works of literature warn of the horrors that attend legal authorities and legal systems that process humans without concern for their humanity. Sophocles’ Antigone is the locus classicus, Dickens’ Bleak House and Shakespeare's The Merchant of Venice and Measure for Measure are classics of English literature. Most chilling of all, perhaps, are the works written in German by the Jewish, Czech-born author, Franz Kafka; a law graduate who, like Dickens, had briefly worked as a low-level legal clerk. Kafka's short story ‘In the Penal Colony’ (Kafka 1995) is a perfect study of mechanized ‘justice’ in which the central actor is a machine that inscribes a legal (and literary) sentence upon the skin of each condemned prisoner. More realistic, and therefore more terrifying, is Kafka's posthumously published novel The Trial (Kafka 2007) in which the unfeeling machinations of the legal process operate through the unquestioning agency of human beings. Reading The Trial, one would be forgiven for thinking that it was written contemporary with the bureaucratic, legalized4 terrors of the Nazis, whereas in fact it anticipated them by more than a decade.
Now we turn to our hard cases.
The invasion of Iraq
The first is the 2003 invasion of Iraq. Sir Jeremy Greenstock, who was the UK's permanent representative to the United Nations in 2003, gave evidence to the Iraq Inquiry chaired by Sir John Chilcot in which he stated that he regarded the UK's participation in the military action against Iraq as:
legal but of questionable legitimacy in that it did not have the democratically observable backing of a great majority of member states or even perhaps of a majority of people inside the UK … There was a failure to establish legitimacy although I think we successfully established legality in the UN5 … to the degree, at least, that we were never challenged in the UN or International Court of Justice for those actions. (BBC News 2009)
The reference to ‘the degree’ of legality indicates that Sir Jeremy is employing a quantitative analysis: ‘it was legal, but only just’; but when he states that the government established legality without legitimacy, it is clear that he is also employing a qualitative analysis: ‘it was legal, but not just’. One of the lessons of Dickens’ Hard Times, if we express it in the language of law, is that even where there is 100 per cent technical legality, the sum will leave something over. There is a quality to humanity that cannot measured by Gradgrind's legalistic ‘rule’ and ‘pair of scales’. Law is bound to fall short of perfect justice in particular cases because the rule of law is merely shorthand for rule according to the shifting values of a constantly shifting society. It is therefore incumbent upon each member of a given society to supplement the shortcomings of the law in particular cases, and one way to do this is to question whether, in a given context, it is truly right to enforce a legal right. In the furore over personal expenses claims made by members of the UK Parliament it was notable that MPs frequently defended their conduct by asserting that they had been (to quote the spokesman of one of them) ‘completely compliant with all the regulations’. Such over-reliance on the strict letter of regulations has the highly undesirable effect of limiting the popular sense of right conduct to conduct which is defensible according to a legal definition of ‘entitlement’ or ‘right’ or simply ‘not wrong’. Thus the banker whose recklessness causes his bank to need the prop of billions of pounds of public money, still claims an obscenely large private pension;6 and the National Health Service executive who presides over deaths caused by poor cleanliness in her hospitals still claims her contractually agreed severance pay.7 The problem is a cultural one. We subscribe to an ‘entitlement culture’ which leads us to overlook the fact that it is sometimes wrong to enforce a legal right.
To counter such a culture we need to conduct research into the alternatives and to provide an education in the alternatives. This is central to the social role of the humanities departments in our universities. We need to critique and confuse our simplistic notions of right and entitlement, and there is no better way to do this than through deep engagement with the work of writers and artists who have wrestled with the complexities of the human condition. The works of Aristotle are invaluable in that regard; indeed, it was Aristotle who provided the first lengthy exposition on the ethical character of the person who does not insist upon the strict letter of the law. He called that person ‘epieikes’ which we translate as ‘equitable’ or ‘foregoing’ or simply ‘reasonable’ (Aristotle 2004).
The works of Shakespeare are equally valuable. To take just one example, near the beginning of Henry V there is a scene in which the need for ethical scrutiny of the technical letter of the law is brilliantly played out. The Archbishop of Canterbury embarks upon a comic masterpiece of legal circumlocution in order to establish that there is no legal bar to Henry's claim to the throne of France, but Henry asks the Archbishop, ‘May I with right and conscience make this claim?’ (Shakespeare 2007) In the words that Sir Jeremy Greenstock applied to the 2003 invasion of Iraq, King Henry demanded to be satisfied that his cause was not merely legal but legitimate. We may doubt the sincerity of Shakespeare's Henry and his Archbishop (the invasion went ahead), but historical records reveal that the real Henry V made frequent, and apparently sincere, reference to ‘right’ and ‘conscience’ as inseparable legitimators of state conduct and, crucially, that he sought legitimation of both kinds from his clerical counsellors (the Lord Chancellor, in particular) (Palgrave 1834: 77). Are we satisfied that Tony Blair was exposed to any equivalent institutional critique prior to the invasion of 2003? Or do we suspect that a plausible legal argument would have provided his legal advisors (and the lawyer in him) with quite enough confidence in the right to invade without having to question, as an additional consideration, the righteousness of the proposed course of action? Humanities scholarship reveals that notions of legitimacy are more complex and contestable than a simplistic doctrinal and definitional reading of legal technicality would have us believe.
The ‘credit crunch’
This brings us to our second ‘hard case’: the ‘credit crunch’. When Queen Elizabeth paid a visit to the London School of Economics late in 2008, she asked her distinguished academic guide why nobody had seen the credit crunch coming, to which he replied that, ‘At every stage, someone was relying on somebody else and everyone thought they were doing the right thing’. That is perfectly true, but a humanities perspective reveals that another cause of the credit crunch was uncritical reliance, not upon systems and officials, but upon abstract legal and economic language. Myths were spun from the thinnest threads of economic logic and a credulous commercial community began to believe its own tall tales. This is the belief that gives true meaning to the concept of ‘credit’, and the ‘crunch’ comes when the ones spinning the yarn suffer a crisis of faith. Cheap credit was a good story that too many people were too ready to buy into.
One cause of the ‘credit crunch’ is the fact that we are naturally powerless to resist the persuasive power of a good story, and one clue to this cause of the ‘credit crunch’ is indicated by the phrase itself. The phrase has taken hold on the public imagination not only, or even primarily, because of the logic (the logos) of the idea, but in large part because of the pathos aroused by the conjunction of those two words ‘credit and ‘crunch’. The phrase has an intense rhetorical power to stir the human senses and the human spirit. Part of its appeal resides in the alliteration of the initial ‘c’, and in the equally obvious onomatopoeic quality of the word ‘crunch’, but there is also power in the grating repetition of the ‘cr’ sound, which snags the phrase on the mind and memory. Most powerful of all, perhaps, is the way in which the immediate gradatio of the two syllables of ‘cre-dit’ to the monosyllabic ‘crunch’ conveys the sudden spatial contraction that is the very essence of a ‘crunch’. Everything about the phrase speaks of swift and violent contraction in a way that is moving and memorable, hence its undoubted popularity. It is because we are naturally powerless to resist the rhetorical power of a sound-bite, still less to resist the power of a whole story, myth or saga, that it is essential to cultivate individual and collective capacity to resist the power of persuasion through disciplines of critique. The humanities disciplines are best equipped to supply the critical faculties that we need.
Uncritical popular repetition of the phrase ‘credit crunch’ mirrors the way in which uncritical reception and repetition of legal and economic fictions helped to cause the credit crunch in the first place. Let us return to the word ‘mortgage’, a word located at the very core of the economic meltdown. It is a word we all use, but very few of us know what it means. Before the credit crunch most people blithely assumed that their banks would give them a mortgage. The truth, the quite opposite truth, is that banks never did grant mortgages to their customers. A mortgage is a security interest which the borrower grants to the lender, not the other way round. The customer grants the mortgage; the bank makes a loan of money; the bank gains a mortgage, the customer acquires a debt. One of the key causes of the credit crunch was the over-selling of mortgages, and one wonders if it might have been in any degree averted if lenders had made it clear that they were not in the business of selling mortgages but in the business of peddling debt. A little misunderstanding as to the technical meaning of the word ‘mortgage’ will not cause a financial meltdown, but it is symptomatic of a more general habit, prevalent in financial professionals, of uncritically repeating legal and economic abstractions. It is this habit that directly produced the credit crunch. The abstract unreality of the mortgage allowed banks to collect their mortgages into notional funds or ‘pools’, in which they imagined that mortgages from high-risk borrowers would balance with mortgages from low-risk borrowers (as if, like water in a natural pool, the risks would find a natural equilibrium). The next level of abstraction was to transfer the notionally calm pool of securities to a company and then to issue shares in the company to investors.
A mortgage myth was spun from legal and popular fictions, and a whole commercial culture was built upon the myth. The culture collapsed when it turned out that too many borrowers (the euphemistically styled ‘sub-prime’ group) were unable to repay the loans secured on their homes and the pools turned out to be poisoned by bad debt. Banks and other investors went bust and the rest is history. It is recent history, but already we sense that key professionals and key politicians are unwilling or unable to abandon the rhetoric which caused the problem in the first place. The language is still the language of eternal ‘growth’ (Woodcock 2009), with a perfectly sanguine disregard for the fact that, outside the sphere of economic science, growth is just another name for inflation, and growth is the thing we observe in bubbles before they burst. How are we to break the cycle of repeating error without the insights of historians? How are we to break into the closed circle of professional vernacular without the assistance of scholars versed in the humanities and critical arts?
Our third ‘hard case’, is the case of medical ethics. It is in relation to health and physical well-being that the cold front of financial figures collides most violently with the warm front of human hopes and aspirations; it is here that tears rain. The political challenge is to balance a limited supply of resources against an unlimited and sometimes desperate demand. There is no poetic solution to this conundrum, but, even here, humanities research reveals alternatives to the sterile discourse of number and scales. The point can be illustrated with reference to the 2001 decision of the Court of Appeal in the case of Re A (Separation of Conjoined Twins) (Court of Appeal 2001).
This was the hardest case of all. Baby girls, referred to as Mary and Jodie, were born in a physically conjoined state; Mary's heart and lungs were weak, so both girls were sustained by the heart and lungs located in the skeletal structure of Jodie. The parents of the twins had travelled to the UK from their home on the rural Maltese island of Gozo to seek safe delivery of the twins and advice on the possibility of surgical separation. When the parents were advised that separation surgery was necessary to save Jodie but that the same surgery would kill Mary, the parents decided that they could not consent to the killing of one child, even to save the other, and advised the doctors of their decision. The Court of Appeal acknowledged that the doctors would have been perfectly free to abide by the parents’ decision, but in the event the medical professionals resorted to legal professionals and separation was sought against the parents’ expressed wishes. There could be no easy answer to the dilemma posed by Mary and Jodie, so the challenge for the judges was to address the question with sensitivity and humility and to reach a decision in which the dignity of each child was maintained and the unique quality of their conjoined state respected. Their lordships expressed genuine anxiety with the dilemma, but the language employed was, at root, the standard language of scientific calculation and legal confrontation. In his leading speech, Lord Justice Ward framed the issues in terms of competition between the twins:
In this unique case it is, in my judgment, impossible not to put in the scales of each child the manner in which they are individually able to exercise their right to life. Mary may have a right to life, but she has little right to be alive. She is alive because and only because, to put it bluntly, but none the less accurately, she sucks the lifeblood of Jodie and she sucks the lifeblood out of Jodie. She will survive only so long as Jodie survives. Jodie will not survive long because constitutionally she will not be able to cope. Mary's parasitic living will be the cause of Jodie's ceasing to live. If Jodie could speak, she would surely protest, ‘Stop it, Mary, you’re killing me’. (Court of Appeal 2001: 197)
The legal language of individualism and competition was hardly appropriate to describe this least individualistic of all human states (Bratton 2004), but, from the judge's perspective, the process of separating the twins in thought and word was necessary preparation for separation by scalpel. Such is the power of an official pen.
Professional habits of script and speech, whether of politicians or press or doctors or lawyers, dominate discourse in the public arena. One role of the humanities is to humiliate their dominance. Where professionals use and abuse the power of speech as if it were a neutral tool to be fitted to their tasks, the humanities respect the inherent rhetorical power of speech and reveal where there has been recourse to myth, cliché, stereotype and unthinking adherence to scripts set out in official form. Lord Justice Ward was aware of the need to employ humane speech. His lordship even refused to label Mary ‘an unjust aggressor’, on the basis that this ‘American terminology’ would be ‘wholly inappropriate language for the sad and helpless position in which Mary finds herself’ (Court of Appeal 2001: 197). Still, his lordship could have improved his own speech (quoted earlier) by avoiding the implication that Mary was a ‘blood-sucker’, ‘parasite’ and sister-killer.
The humanities alert us to those places where humanity itself has silently fallen from the scales of logic. Not that the humanities are unconcerned with logic; only that logic is not their only concern. Hopefully the reader has been convinced of the logic of the syllogism with which this chapter began, and convinced also of the logic of the argument and proofs that followed. If not, the reader might at least accept this chapter as an essay in praise of a certain kind of folly. Let it be the folly of Shakespeare's ‘allowed’ (Twelfth Night: 1.5.69) and ‘all-licensed’ fool (King Lear: 1.4.149), whose calling is to speak uncomfortable truths to those in power, when others are content to confirm the comfortable follies of routine. Politicians and professions are enthroned where kings once sat. It is in hard times and hard cases, when their power is greatest, that the humanities are most required to play the wise fool. It is when the forces of efficiency press hardest that the risk of efficient evil, which is the worst evil, must be most guarded against. The public value of law as a humanities discipline resides first and foremost in its capacity to critique, as Charles A. Reich observed:
the study of law as a subject matter must be a study of society in the moral sense of ought and should. Herein lies law's true kinship with literature and with the other arts which seek a critique and an overview of society. Herein lies law's responsibility to be, not merely in apostrophe but in reality, the queen of the humanities. (Reich 1965: 1402, 1408)
The reader might not share our belief that the arts and the humanities represent the best hope for the best of civilizations, but the reader will hopefully be convinced that they at least protect us from the worst of all possible worlds. Some of the most iniquitous societies have been those in which laws have been applied too strictly, in which people have been analysed too scientifically and in which the powerful have taken themselves too seriously. Every society needs an independent voice to speak in the language of its history and culture and arts against the consensus of those currently in power. No voice can be relied upon to speak that language with more freedom and authority than the voice of the academy of the humanities.
Court of Appeal, 2001 "Re A (Children) (Conjoined Twins: Surgical Separation)." Fam 147, Court of Appeal, London: Court of Appeal http://www.mentalhealthlaw.co.uk/images/Re_A_(Conjoined_Twins)_(2001)_Fam_147_report.pdf 13 July 2010
The Public Value of the Humanities - Notes and Bibliography:
1. In 2005, 30 per cent of all Members of Parliament with any professional qualification were solicitors or barristers, and one can speculate that other MPs would have studied law academically without proceeding to a practising qualification. It is not clear how many of the legally qualified MPs had studied law as an undergraduate degree, but almost certainly a clear majority, and those who did not are quite likely to have come to the law from a background in one of the other humanities’ disciplines. The 30 per cent figure has remained more or less constant since 1987, when lawyers made up exactly one-third of professionally qualified MPs (Cracknell 2005).
4. For a list of the official decrees issued against the Jews under the Third Reich, the reader might consult the http://www.jewishvirtuallibrary.org [accessed 13 July 2010].
5. In particular, through UN Security Council Resolution 660 (2 August 1990) UN Doc S/RES 660, UN Security Council Resolution 678 (29 November 1990) UN Doc S/RES 678 and UN Security Council Resolution 1441 (8 November 2002) UN Doc S/RES 1441.