Questioning Law’s Empire

May 22, 2019

Judges are ever more significant in our public life. This was true before the Brexit process began and it will remain true even if the UK leaves the EU. Courts, domestic and European, have come to exercise ever more authority over an ever wider range of public questions. For some judges and lawyers, this is a development in which to delight. Others are less enthusiastic, doubting the wisdom of reposing to courts questions that ought to be decided by other means, and especially by politics. These doubts come into sharp focus in this year’s Reith lectures, given by Jonathan Sumption, a distinguished medieval historian, barrister, and Justice of the Supreme Court from 2012 to 2018. The first lecture, broadcast yesterday morning, traces “Law’s Expanding Empire”, outlining how and why the domain of law, and the courts, has come to reach so widely.

Until the 19th century, Sumption says, “most human interactions were governed by custom and convention”, whereas now “law penetrates every corner of human life”. Witness the number of statutes and regulations that now govern us, as well as the “the relentless output of judgments of the courts”. Reviewing the range of questions over which judges now have jurisdiction, he observes that even “special areas that were once thought to be outside the purview of the courts, such as foreign policy, the conduct of overseas military operations and the other prerogative powers of the state, have all one by one yielded to the power of the judges”. And he notes further that the Human Rights Act 1998 “has opened up vast new areas to judicial regulation”.

The lawyer’s conceit is that the expansion of law’s domain – and the jurisdiction of the courts – is simply the outworking of the rule of law. Not so says Sumption, for the rule of law “does not mean that every human problem and every moral dilemma calls for a legal solution”. This is true and important. Only sometimes will it be reasonable to impose a legal solution, not least since lawmaking tends to displace other forms of social order and to curtail the discretion (of someone other than a judge) that may be necessary to respond intelligently to the problem. Recognising the limits of law and of legal technique is not to doubt for a moment that the rule of law is indispensable for common good. Social life should be framed by public rules that are general, coherent and prospective, and thus capable of adoption by law-abiding citizens as if they were their own. The particular responsibility of the judge is to adjudicate disputes fairly and in accordance with public rules, thereby vindicating the legal rights and duties of the parties who come before them. This is a vital but limited responsibility, which risks neglect if judges set their sights more highly.

The real reason for law’s expansion, Sumption suggests, is not the logic of the rule of law but of democracy, which “has inevitably led to rising demands of the state”. Sumption is ambivalent about this change, I infer, aiming to record it somewhat dispassionately but also to note some of its complications. For my part, I take the rise of democracy rightly to result in concerted state action to address the conditions of the governed, especially when this coincides, as it did in the UK, with radical changes in social and economic conditions which cry out for changes in the law. Sumption agrees that at least part of the rise of law is a natural response to technological or economic change but he contends that another part is instead a response to “changes in our outlook”, notably “a growing moral and social absolutism” and “the quest for greater security and reduced risk”.

In relation to the former, Sumption notes that ours is “a censorious age”, which strives for uniformity of thought or opinion, whether by way of abuse in the press or social media or more directly by law. He is surely right and one had best hope that judges do not entirely conform to the spirit of the age, if legal protections against vengeful (online) mobs are not simply to dissolve. This does not mean that morality and the law can or should be kept wholly apart. On the contrary, moral reasoning has always been central to lawmaking, although this certainly includes and requires reflection on the rightful limits of state authority, the value of freedom, and the inviolability of conscience.

Sumption argues that the recent, tragic case of little Charlie Gard reveals much about the changing place of law and courts in our public life. The doctors were unwilling to decide for themselves whether to discontinue treatment, instead seeking “absolution” from the court. This was doubtless prudent, for the risk of legal action in the alternative would have been high. The term “absolution” was chosen with care, I am sure, and implies, plausibly, that the rise of law turns partly on the retreat of religion. In the absence of other traditional social bonds, law may become ever more significant, although one may doubt how far it is capable of compensating for such bonds: the EU’s character as a legal order rather than robust political community may prove the point.

The other striking feature about the Charlie Gard case, Sumption notes, is that the law did not leave to the parents the decision as to whether to pursue medical treatment elsewhere: it was for the judge, on our collective behalf, to choose authoritatively what should be done. Sumption draws this general lesson: “[r]ules of law and the discretionary powers which the law confers on judges limit the scope for autonomous decision-making by individuals.” I am not sure this is quite right. For much turns on the rules in question. In the Charlie Gard case, the rule could have required the judge not to interfere with the decision of the parents whether to pursue treatment. It is true that replacing custom with law inevitably makes lawyers and judges relatively more important. But only some rules confer discretionary power on judges; only some conceptions of the rule of law license judges to make or depart from law freely. In other contexts, the willingness of judges to uphold clear, settled legal rules makes it possible for us to stand as equals, to live our lives freely. Throughout the lecture, Sumption at times elides the difference between the extension of law and the expansion of judicial power: the two may often go together but they are not the same.

Turning more briefly to the quest for security and reduced tolerance of risk, Sumption argues that this inevitably results in ever more legal rules and legal action. This trend is a fact on the ground, Sumption says, but one about which he certainly seems less than enthusiastic. His misgivings, I infer, concern the unreality of public expectations, which often overlook the trade-offs that must be made, the costs that pursuit of security entail. Lawmaking involves compromise and not every problem, to repeat, can or should be solved by extending law or empowering courts.

These reflections on our censorious, risk-averse age lead Sumption to the conclusion that the modern democratic state is unavoidably mighty and that the challenge for us is how best to limit and control this Leviathan that we have created. Sumption asserts, plausibly, that most of us are ambivalent about the democratic state, and promises that his next lecture will reflect on how best to control its actions. A similar ambivalence should extend to the law, I say, which is imposed upon us but should also be chosen by us. Whether the law is in fact the main way in which a free people orders itself, or is instead how an unruly people is kept in line, turns partly on the capacities of the people but also on how and by whom the law is made and imposed. The phrase “law’s empire” is revealing: law may become an empire when laws are imposed by supra-national institutions and when judges are taken to be princes of the law. The challenge, which I look forward to Sumption exploring in further lectures, is not only how to limit and control state power in general but how to control judicial power in particular – how to dethrone law’s empire.

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