No CrossRef data available.
Article contents
Law at the End of its Tether
Published online by Cambridge University Press: 16 January 2009
Extract
The past fifty years have seen turbulences in every state, even the most secure hitherto. In a country like Britain, which has remained comparatively stable, it has been easy to preserve the philosophy of analytical positivism in which the science of law is abstracted from social, moral and other value-considerations. Such aloofness is tenable only so long as value-conflicts do not assume large enough proportions to disturb the settled state of affairs, so that one can play at being a jurist as a purely intellectual pastime without overmuch concern as to the direction of social development, since one is comfortably assured of a fairly uniform flow of public opinion. But when tensions begin to convulse the very surface of national life, jurists, let alone judges, are compelled to make conscious decisions as to which way to steer if shipwreck is to be avoided; and the decision to remain positivist then becomes a choice of one of several attitudes, the merits of which invite comparison and question. In keeping with the general surge of unrest, the past fifty years have seen in Britain somewhat of a swing away from positivism and a growing preocupation with values.
- Type
- Research Article
- Information
- Copyright
- Copyright © Cambridge Law Journal and Contributors 1972
References
1 The true “father of British jurisprudence” is Jeremy Bentham: Introduction to the Principles of Morals and Legislation (ed. Burns, J. H. and Hart, H. L. A., 1970), continued in Of Laws in General (ed. Hart, H. L. A., 1970)Google Scholar, on which see Hart, “ Bentham's ' Of Laws in General'” (1971)Google Scholar 2 Rechtstheorie, 55. The latter work was first published in 1945 by C.W. Everett under the title The Limits of Jurisprudence Defined. John Austin continued the tradition of analytical positivism by his Jurisprudence (5th ed. R. Campbell, 1885). Two modern analytical positivists are Hans Kelsen (e.g., General Theory of Law and State, transl. A. Wedberg, 1949, and Pure Theory of Law, transl. M., Knight, 1967)Google Scholar and Hart, H. L. A. (e.g., The Concept of Law, 1961).Google Scholar
2 The analysis is based on W. N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (ed. W. W. Cook, 1923) Chap. 1.
3 Digest, 50.17.55; Hobbes, Thomas, Dialogue between a Philosopher and a Student of the Common Laws of England (ed. J., Cropsey, 1971) s.v. “Of Sovereign Power,” p. 73.Google Scholar For detailed analysis, see Williams, G. L., “The Concept of Legal Liberty” (1956) 56 Col.L.R. 1129, reprinted inGoogle ScholarEssays in Legal Philosophy (ed. Summers, R. S., 1968), p. 121.Google Scholar See also C. E. Shattuck, “The True Meaning of the Term 'Liberty' in those clauses of the Federal and State Constitutions which protect 'Life, Liberty and Property'” (1890–91) 4 Harv.L.R. 365. For the distinction between “freedom from” and “freedom to,” see L. L. Fuller, “Freedom—a Suggested Analysis” (1954–55) 68 Harv.L.R. 1305; Berlin, Isaiah, Two Concepts of Liberty (1958, pamphlet).Google Scholar
4 See Iris Murdoch, “The Sovereignty of Good over Other Concepts,” Leslie Stephen Lecture (1967) at pp. 31–32.Google Scholar
5 e.g., the regimes in African states, old and new.
6 In Marxist philosophy, the use of limitless power by the prolectarian dictatorship, after winning freedom from “capitalist oppression,” is justified as being necessary, inter alia, to forestall counterrevolution. This has led to the Yugoslav accusation that the Soviet regime is itself acounterrevolution.dictatorship. Cf., Djilas, M., The New Class 1957).Google Scholar
7 Cf., Thomas Hobbes's account of the origin of society: Leviathan (1651).
8 e.g., the manner in which Hitler pulled Germany together from the disintegration of the Weimar Republic.
9 Cf., a “closed society” in which the individual counts for nothing, and an “open society,” in which he is given scope: Lloyd, D., The Idea of Law (1964) Chap. 7.Google Scholar The Soviet Union kept up a highly repressive system by sustaining a sense of crisis and a need for self–preservation in the face of “capitalist encirclement.” When this ploy played itself out, it was possible to fall back on the crusading mission of communism as an alternative. It is still not clear whether “full communism” has yet been achieved in Russia.
10 The rulership was of God alone, the Theocracy, but even this rested on voluntary acceptance in the Covenant: Gen. 15–18; 26.3–5; 28.12–16; 35.9–12; Deut. 26.16–18. The Theocracy lasted until Saul was appointed King in 1037 B.C.
11 Niccolo Machiavelli, The Prince (1513).
12 Cf., Hugo Grotius's cri de coeur in De Jure Belli ac Pacis, Prolegomena, 28 (1625).
13 Justified by Hobbes, Leviathan.
14 Justified by John Locke, On Government (1690).
15 Justified by Jean Jacques Rousseau, Du Contrat Social (1762).
16 MacDermott, Lord, Protection from Power under English Law (1957), p. 195Google Scholar; cf., Aristotle, Politics.
17 Cf., H. L. A. Hart's “internal aspect of rules–56, 86–88. For criticism of his treatment of the distinction between “legally obliged” (a rule is valid) and “legal obligation” to obey, see R. E. Hill, “Legal Validity and Legal Obligation” (1970) 80 Yale L.J. 47.
18 Buckland, W. W., Some Reflections on Jurisprudence (1949), p. 91.Google Scholar
19 Hart, H. L. A., “Positivism and the Separation of Law and Morals ” (1957–58) 71 Harv.L.R.593.Google Scholar For a distinction between the “concept idea” of law, see B. E. King, “The Concept, the Idea and the Morality of Law” (1966) 24 Camb.L.J. 106.
20 Raz, J., The Concept of a Legal System (1970)Google Scholar gives only a formal analysis, and it is noteworthy that at various points he talks specifically of “momentary” systems, especially at p. 187.
21 The problem of protecting the individual worker against his union becomes insoluble if unions have their way in operating outside a legal framework and the courts. To say that the worker needs no protection other than that provided by his union. is no answer to the problem of protecting him against the power of his union. The argument that unions exist to protect workers, not to abouse them, might be countered by reference to cases like Bonsor v. Musicians' Union [1956] A.C. 104,Google ScholarRookes v. Barnard [1964] A.C. 1129, and many others.Google Scholar
22 In particular, the age, experience and interests of participands need to be balanced; cf., the age–old wisdom of Ecclesiastes, 10.5.16.
23 Nicomachaean Ethics, V. Cf., Cahn, E. N., The Sense of Injustice (1949)Google Scholar, who regards justice as what is needed to remedy that which arouses a sense of injustice. He discusses this with reference to power, freedom, order, security and change.
24 It is unnecessary to enter into the crucial point how “equality” is to be determined; see C. J.Friedrich, “Justice: the Just Political Act,” 6 Nomos, Justice, p. 34. For modern analyses, see Ch. Perelman, The Idea of Justice and the Problem of Argument (transl. J., Petrie, 1963)Google Scholar; Honore, A. M., “Social Justice” in Essays in Legal Philosophy, p. 61.Google Scholar
25 This is the fallacy behind Austin's claim for illimitability for the sovereign: see J. Raz, op. cit., p. 28.
26 J. Raz, op. cit., Chap. 4. For H. L. A. Hart's clue to a “legal system,” see The Concept of Law, Chap. 5.
27 St. Augustine, De Libero Arbitrio, 1.5.7.
28 Pollock, F., Essays in Jurisprudence and Ethics, p. 50.Google Scholar For a discussion of the influence of positivism on South African judges, see Dugard, J., “The Judicial Process, Positivism and Civil Liberty” (1971) 88 S.A.L.J. 181.Google Scholar
29 On the need for moral quality in laws, see Lord MacDermott, op. cit., p. 8 and passim.
30 In addition to protection from unjust laws, the individual needs protection from other by-products of power-structures, e.g., bureaucracy and computers. These are not dealt with here. On bureaucracy, see Hazard, J. N., “Socialism, Abuse of Power and Soviet Law” (1950)Google Scholar 50 Col.L.R. 448, On computers, see A. R. Miller, “Personal Privacy in the Computer Age: the Challenge of a New Technology in an Information Oriented Society” (1969) 67 Mich.L.R. 1091. For protection from the power of wealth, status, monopoly and restrictive associations, see Lord MacDermott, op. cit., Chaps. 5–6.
31 The relevant acceptance today is that of persons charged with administering that which they identify as “laws”, viz., judges and officials. Initially acceptance rests on a measure of popular support. This temporal distinction is not brought out either by Austin (op. cit., p. 221) or Kelsen (General Theory, p. 119; Pure Theory, pp. 211. et seq.).
32 Cf. Kelsen's Grundnorm (works cited in last note). In most countries validity is imparted by a constitution, but in Britain the validating media are statute, precedent and immemorial custom. With regard to precedent, it is tempting to conjecture whether the retrospective effect of overruling stems from the idea that a wrong decision can never have been “law” rather than from the Blackstonian thesis that judges do not make “law”,; which may only be rationalisation, ex post facto.
33 Cf., Sir Matthew Hale's answer to Hobbes: “Sir Matthew Hale on Hobbes: an unpublished manuscript,” published by F. Pollock and W. S. Holdsworth in (1921) 37 L.Q.R. 274; on which see in more detail D. E. C. Yale, “Hobbes and Hale on Law, Legislation and Sovereign,” ante, p. 121. For a bold judicial application of a historical limitation, see the judgment of Mushtaq Hussain J. in Hassan and Rasul v.The State (published by F. Bedar and S. Rahman in Justice, Lahore, 1969), especially at p. 25: “Martial law was imposed, therefore, with the declared purpose of 'restoring sanity,' 'restoring and saving the country from internal disorder and chaos ' and to 'ensure that the administration resumes its normal functions to the satisfaction of the people' … No one, including the Chief Martial Law Administrator, can transcend or deviate from the sole purpose of restoring law and order and democracy, and it needs no gainsaying that curbing the jurisdiction of the established judiciary is not a step in that direction.” Also, Bentham, Of Laws in General, pp. 64 et seq.
34 McWhinney, E., Judicial Review in the English-speaking World (2nd ed. 1960), Chap. 6.Google Scholar
35 The abuse of power lies in the indefinite perpetuation of racial inequality for the benefit of the white power-wielders, who also control African development towards equality: see my paper, “Legal Politics; Norms behind the Grundnorm” (1968) 26 Camb.L.J. at p. 257,Google Scholar and Jurisprudence (3rd ed. 1970), p. 106.Google Scholar My further point that the Rhodesian judiciary, who swear to “do right to all manner of persons,” could justifiably have refused to accept a Constitution, which pledges them to continue doing injustice, is not quite answered by Christle, R. H., “Practical Jurisprudence in Rhodesia” (1968)Google Scholar 1 Compar. & Int.L.J. of S.A. 390, (1969) 2 id., p. 3, 206, and J. W. Harris, “When and Why does the Grundnorm Change?” (1971) 29Google Scholar Camb.L.J. 103, both of whom say, in effect, that the judges were justified in accepting the Constitution ultimately inasmuch as the regime was effective, i.e., might had become right. See de Smith, S. A., Constitutional and Administrative Law (1971), pp. 70–71.Google Scholar
36 L'Esprit des Lois (1748), 11.4–6. It is commonly thought that he based his views on a misunderstanding of the British system. For the view that he was really arguing what ought to obtain in France, and that he was using Britain as a facade for avoiding domestic censorship, see Merry, H. J., Montesquieupound's System of Natural Government (1970).Google Scholar
37 A Commonwealth example of the doctrine of separation of powers being used is Liyanage v. R. [1967] 1 A.C. 259.Google Scholar
38 Hiemstra, V. G., “Constitutions of Liberty” (1971) 88 S.A.L.J. 45 (comparing the American and German constitutions).Google Scholar
39 e.g., the circumvention of the “entrenched clauses” of the South Africa Act 1909, by the Senate Act 1955, on which see Collins v. Minister of the Interior, 1957 (1) S.A. 552 (A.D.).Google Scholar The Russians have always derided reverence for constitutions as a “bourgeois fetish.”
40 e.g., Brown v. Board of Education 347 U.S. 483 (1954)Google Scholar and the case of the “Pentagon Papers,”The Times, 3 July 1971.
41 See, e.g., the difficulties encountered in dealing with anti-social monopolies. For a different sort of situation, see Mr. Justice Black's opinion in the “Pentagon Papers” case (last note).
42 Van Gend en Loos v. Nederlandse Belastingadministratie [1963] C.M.L.R. 105.Google Scholar
43 Generally, see the symposium, Human Rights in National and International Law (ed. Robertson, A. H., 1968).Google Scholar
44 In Costa v. E.N.E.L. [1964] C.M.L.R. 425,Google Scholar the European Court did hold void a measure, which the Italian Constitutional Court had held to be valid. On this case, see T. J. Schoenbaum, “The Growth of Judicial Power in the European Economic Community” (1969) 48 N.Carolina L.R. 32; G. Bebr, “Law of the European Communities and Municipal Law” (1971) 34 M.L.R. 481.
45 Legal and Constitutional Implications of United Kingdom Membership of the European Communities (1967) Cmnd. 3301. For the terms of admission:Google ScholarThe United Kingdom and the European Communities (1971) Cmnd. 4715.Google Scholar On the implications generally, see E. Stein, “Towards Supremacy of Treaty-Constitution by Judicial Fiat: on the Margin of the Costa Case” (1964–65) 63 Mich.L.R. 491; Mitchell, J. D. B. “What do you want to be inscrutable for, Marcia?” (1967) 5 C.M.L.R. 112Google Scholar; Martin, A., “The Accession of the United Kingdom to the European Communities: Jurisdictional Problems” (1968–69) 6 C.M.L.R. 7Google Scholar; N. M. Hunnings, “Constitutional Implications of Joining the Common Market,” Ibid., p. 50; de Smith, S. A., “The Constitution and the Common Market: a Tentative Appraisal” (1971) 31 M.L.R. 597Google Scholar; Britain and Commonwealth in Europe (Round Table Essays, ed. M., Howard and R., Jackson, 1971).Google Scholar See also Williams's, D. G. T. paper in this volume, “The Constitution of the United Kingdom,” ante, at pp. 285–292.Google Scholar
46 “Indeed, the Imperial Parliament could, as a matter of abstract law, repeal or disregard s. 4 of the Statute; but that is theory and has no relation to realities”: British Coal Corporation v. R. [1935] A.C. 500 at p. 520.Google Scholar A Dominion court would disagree: “Freedom once conferred cannot be revoked”per Stratford, A.C.J. in Ndlwana v. Hofmeyer N.O. [1937] A.D. 229 at p. 237.Google Scholar Both sentiments find an echo in Lord Denning M.R.'s statement: “Freedom once given cannot be taken away. Legal theory must give way to practical politics”: Blackburn v. Att.-Gen. [1971] 1 W.L.R. 1037 at p. 1040.Google Scholar
47 Possible inference from Danckwerts, J. in Re Brassey's Settlement. Barclay's Bank, Ltd. v. Brassey [1955] 1 W.L.R. 192 at p. 196.Google Scholar
48 For illustrations from Roman and English Law, see my paper, “The Unenforceable Duty” (1959) 33 Tulance L.R. 473.
49 Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645Google Scholar; Adams v. Adams (Att.-Gen. intervening [1971] P. 188.Google Scholar
50 In Blackburn v. Att.-Gen. [1971] 1 W.L.R. 1037Google Scholar, the Court of Appeal left the point open (p. 1040) and declined to give an answer hypothetically. This case was considered in Jenkins v. Att.-Gen., The Times, 14 August 1971.
51 “Notwithstanding all the apparatus of authority, the judge has nearly always some degree of choice: “Lord Wright, Legal Essays and Addresses, p. xxv. See also Lord Macmillan, Law and Other Things, p. 48; Stone, J., Legal System and Lawyers' Reasonings (1964), pp.35–41, Chaps. 7–8.Google Scholar
52 Parker, H. L., “The Role of the Judge in the Preservation of Liberty” (1961) 35 Austr.L.J. 63Google Scholar; C. B. Salmon, “The Bench. The Last Bulwark of Individual Freedom” (1943) 6 M.L.R. 177 (maintaining that the triumph of the common (judge–made) law was the creation of the liber homo). Cf., Lewis J. in Madzimbamuto v. Lardner-Burke (first instance judgments reported in a Government Blue Book, GD/CIV/23/66) at p. 36. See also Golak Nath v. State of Punjab (1967) 2 S.C.R. 762Google Scholar; Hassan and Rasul v. The State, loc. at., cit., supra, n. 33.
53 e.g., Pritt, D. N., Law, Class and Society (1971)Google Scholar and see also the survey by O'Higgins, P. and Partington, M., “Industrial Conflict: Judicial Attitudes” (1969) 32 M.L.R. 53.Google Scholar
54 Cf., a concluding remark of 'Higgins and Partington, op. cit. at p. 58: “Clearly there was less statistical evidence of the influence of judicial bias than might a priori have been expected.”
55 On the pressure of roles, see Emmett, D., Rules, Roles and Relations (1966) Chap. 7Google Scholar; generally, Johnson, H. M., Sociology: a Systematic Introduction (1961) passim.Google Scholar
56 Cf., Thomas Hobbes: “… in the matter of government, when nothing else is turn'd up, Clubs are Trump”: Dialogue, s.v. “Punishments,” p. 140.
57 Kohr, Leopold, “The Breakdown of Great Britain,” 52nd Conway Memorial Lecture (1971).Google Scholar See also his The Breakdown of Nations (1957).Google Scholar
58 Cf., MacDermott, Lord, op. cit., Chap. 7Google Scholar, on the “power of numbers.”
59 Two major weaknesses of the theory seem to be the vagueness of what is meant by “size” and “unit.” Kohr does not mean numerical or geographical size, but “effective size,” which is said to produce increased “velocity,” i.e., “the speed at which (people) begin to move around.” He instances the analogy of the panic-stricken rush of a cinema audience in the event of fire. But in South Africa, for example, the majority African population “move around” far more in relation to the minority white population. Why, then, are the latter “bigger” or more “effective”? If this is incorrect, it is not clear what he means. Further, what is a “unit”? Are minorities like the “alternative society” units to be hived off into self-contained groups? These particular people clearly do not want the responsibility of administering a state of their own; and it seems, from other parts of the lecture, that “unit,” as opposed to “size,” has a territorial connotation. If so, another difficulty arises. Some “units” have bigness built into them, which transcends even existing territorial divisions, e.g., religious (Moslem) or racial (Arab) unities. Kohr seems to regard “units” as fixed, but they are not. Different circumstances call into being different unities, e.g., Arab states as against Israel, but not inter se; and this fluidity makes even the division into existing states seem artificial and still smaller states more artificial. For another objection: Gibraltarians voted almost to a man to remain British. Would Kohr insist on their separation?
60 Germany consisted of small units until the second half of the last century. German nationalism made the unification of Germany almost a crusade; cf., Friedrich von Savigny's thesis of the Volksgeist, in which also there is difficulty in deciding who the “Volk” are: On the Vocation of our Age for Legislation and Jurisprudence (2nd ed., transl. A. Hayward, 1831). Italy is another example, and there are many more. An economic example is the coalescence of the Ruhr coal and steel syndicates and of I. G. Farben when Allied power was finally withdrawn after the Second World War.
61 Just as there is a point beyond which bigness becomes “critical” (in Kohr's own words), so also there is a point beyond which smallness becomes “critical” too. Those who preach breakdown may find themselves hard put to arrest the momentum towards fragmentation. At what point should breakdown stop? It is easy to see why Kohr's thesis appeals to separatist nationalist movements. Unfortunately, fervent nationalism will drape itself with the respectability of any philosophy that supports it, however dubious, but which in the end may prove to be a shirt of Nessus. Kohr, who was a professor in Puerto Rico and then adviser to the secessionist movement in Anguilla, is now on the staff of the University College of Wales, Aberystwyth, and is a supporter of the Plaid Cymru movement. See his Is Wales Viable? (1971).Google Scholar
62 Unless all states do this, those that do not will find themselves exceeding the “critical” point of relative bigness, which will make them aggressors (on Kohr's analysis). The last plight of the broken down nations will then be worse than the first, for their fight for freedom from oppression will have to begin anew and from a point much further back. Apart from the few points alluded to in this paper, there are others in Kohr's lecture which, though containing a grain of truth, seem to be overstatements, notably his analysis of war and crime.
63 The Conservative Party Political Centre document, Public Order (1970) speaks of “a synthesis of freedom and order. It is a notoriously difficult task, but it is necessary to try to achieve it as the basis for a satisfactory system of law in a democratic society.”
64 Hart, H. L. A., Law, Liberty and Morality (1963)Google Scholar; Mill, J. S., Utilitarianism, Liberty and Representative Government (ed. Lindsay, A. D., 1910).Google Scholar
65 Devlin, P., The Enforcement of Morals (1965), Chap. 1Google Scholar and passim; see also Mitchell, B. G., Morality and Religion in a Secular Society (1967).Google Scholar
66 “The principle of freedom cannot require that he should be free not to be free”: op. cit., p. 158.Google Scholar
67 B. G. Mitchell, op. cit., Chap. 2, especially at p. 25. For a different analysis, see R. A. Samek, “The Enforcement of Morals. A Basic Re-examination in its Historical Setting” (1971)Google Scholar 49 Can.B.R. 188. See also Lord MacDermott, op. cit., especially at pp. 8, 195.
68 This was pointed out long ago by Bryce, J., Studies in History and Jurisprudence (1906), II, pp. 6et seq.Google Scholar; Olivecrona, K., Law as Fact (1939), pp. 54, 60.Google Scholar
69 This is the essential point in Goodhart's, A. L.English Law and the Moral Law (1955).Google ScholarLlewellyn, K. N., Jurisprudence: Realism in Theory and Practice (1962), Chap. 18Google Scholar, points out that obedience is a matter of habit and practice; Fried, C., “Moral Causation” (1963–64) 77Google Scholar Harv.L.R. 1258, distinguishes moral causation of obedience from psychological causation and moral persuasion.
70 Law, Liberty and Morality, p. 51. He appears to regard this as self-evident.
71 Puner, N. W., “Civil Disobedience: an Analysis and Rationale” (1968) 43Google Scholar N.Y.U.L.R. 651. All the contributions to this issue of the Review are relevant. See also K. W. Wasserstrom, “The Obligation to Obey” in Essays in Legal Philosophy, p. 274.
72 Olivecrone, K., op. cit., pp. 147–148.Google Scholar Centuries ago Plato and Aristotle taught that to rule is to educate, while the Soviet Union has been engaged in a gigantic effort to educate the masses for communism, inter alia, by means of law.
73 One recommendation in Public Order (Conservative Party Political Centre) is that the hotch-potch of laws relating to order should be simplified so as to help enforcement.
74 Green, L. C., “Law and Morality in a Changing Society” (1970) 20 U.T.L.J. 422, 433.Google Scholar
75 Aristotle insisted that one of the main functions of the state is to educate the citizen in virtue, and he deplored states which leave their subjects to do as they please: Politics, III, 9; Ethics, II, 1.5.
76 The law can go even further. Thus, adult homosexuality in private is no longer prohibited, but advertisements for this purpose may be punished as a conspiracy to corrupt: R. v. Knuller (Publishing, Printing and Promotions), Ltd. and Others [1971] 3 W.L.R. 633.Google Scholar
77 For the unpreparedness of lawyers to deal with questions of belief, see U.S. v. Bollard (1944) 322 U.S. 78Google Scholar, (1946) 329 U.S. 187, on appeal to the Supreme Court twice from 138 F. (2d) 540 and 152 F. (2d) 941 (concerning Guy Ballard's belief that he had, inter alia, talked and shaken hands with Jesus Christ in San Fransisco).
78 Thus, the ruling in the greatest tort case of the century, Donoghue v. Stevenson [1932] A.C. 562Google Scholar, was founded on the “fact” that a dead snail had floated out with the contents of a ginger-beer bottle being consumed by a customer. This crucial “fact” was never actually established and its truth is still in doubt: cf. Jenkins, L.J. in Adler v. Dickson and Another [1954] 1 W.L.R. 1482 at p. 1483,Google Scholar on which see R. F. V. Heuston, “Donoghue v. Stevenson in Retrospect” (1957) 20 M.L.R. at p. 2. But its truth or untruth is of no consequence; it is the principle on which the case was decided that has proved to be epoch-making, since it affects the daily lives of people more closely than any other tort principle.
79 The problem is one of hermeneutics. Its investigation in relation to law is long standing: e.g., F. Lieber, Legal and Political Hermeneutics (1880). In the last few years a Cambridge discussion group sought to bring together scientific, historical, literary, psychiatric, philosophical, religious and legal methods of thinking on the question of interpretation. It is hoped that a symposium of essays will result.
80 Some Christian teachers today do not regard the historicity of certain events, hitherto thought to be fundamental, as being essential: Barnes, E. W., The Rise of Christianity (1947)Google Scholar; Robinson, J., Honest to God (1963)Google Scholar; Nineham, D. E., Saint Mark (1963).Google Scholar
81 See, on this problem, Cole, W. G., “Private Morality and Public Law” (1968) 54 Am.B.A.J. 158Google Scholar; Morris, E. F., “American Society and the Rebirth of Civil Obedience,”Google Scholaribid., p. 653.
82 This was so in ancient Jewish theory and is central to the theory of Leon Duguit, e.g., Law in the Modern State (transl. F. and H. J. Laski, 1921). Some of those who currently produce pornography assert liberty to indoctrinate children with their views. They are no doubt sincere in what is to them a crusade. But (a) it is curious that they are also foremost in opposing indoctrination of children with religion before they can think for themselves. Besides, (b) indoctrination is not a bad thing as such; it depends on what is taught. Religious indoctrination at least teaches service and duty to others; the pornographic style of indoctrination teaches self-indulgence. From a social point of view, therefore, the former is tolerable, the latter is not.
83 The Deserted Village.
84 Rawls, J., “Legal Obligation and the Duty of Fair Play,” in Law and Philosophy. A Symposium (ed. S., Hook, 1964), Chap. A.Google Scholar For difficulties and problems, see the other contributions in Part I.
85 Cf. Duguit's doctrine of “social solidarity”: op. cit. For the problem, see Lord MacDermott, op. cit., Chap. 7.
86 In Collymore v. Att.-Gen. of Trinidad and Tobago [1969] 2 All E.R. 1207Google Scholar, the Privy Council held that the liberty of association was not impaired by limiting the liberty to strike.
87 McClean, J. D., “Reparation by the Offender” (1971)Google Scholar 34 M.L.R. 436. Trade unions are anxious to secure themselves against legal control of the exercise of their powers and liberties. If they were to achieve this, the only restraint would be their sense of social responsibility. The way this has worked in recent years is interesting.
88 Examples: the Editorial in The Law Guardian, July/August 1970 (No. 61)Google Scholar protesting against the conduct of the judge in the Garden House Riot case; Drewry, G., “Freedom and Order” (1970) 120Google Scholar New L.J. 1142, criticising Public Order (pamphlet of the Conservative Party Political Centre) on the ground that there ought to have been prior “agreement about basic definitions”; Hepple, B. A., “Aliens and Administrative Justice: the Dutschke Case” (1971) 34Google Scholar M.L.R. 501, criticising the deportation of Rudi Dutschke. How do any of these help to deal with future situations in the present climate? Neither casuistry nor legalistic arguments derived from the analysis of bygone incidents take account of the fact that in the days when the British “rule of law” gave sanctuary to Marx, Engels, Kropotkin and others, it was operating in a vastly different social, political and world arena from that of today.
89 For an apt statement of this with regard to sociology, see Sprott, W. J. H.Sociology (1966) p. 39.Google Scholar
90 For Lord MacDermott the preservation of public order effectually “is a first task;” op. cit., p. 7. For moral quality in law, see ibid., pp. 8, 195. Goodhart, A. L., “Freedom under the Law” (1960) 1 Tasm.L.R. 375Google Scholar, shows how legal control came to be thought of as necessary to freedom. See also Carritt, E. F., “Liberty and Equality” (1940) 56 L.Q.R. 61Google Scholar; Hale, R. L., “Freedom Through Law” (1954) 54 Col.L.R. 70.Google Scholar On the need to uphold authority for the sake of human freedoms, see Humphrey, J., “Human Rights and Authority” (1970) 20 U.T.L.J. 412.Google Scholar
91 As the judges were accused after the Garden House Riot in 1970 and after the trial at first instance of the producers of the Oz magazine in 1971 (appeals allowed in part, R. v. Anderson and Others [1971] 3 W.L.R. 939.Google Scholar
92 Cf., Lord, Devlin, op. cit., p. 15Google Scholar and Preface, pp. viii–ix.
93 Supra, n. 59.
94 The question has arisen chiefly in international law: see, e.g., Radbruch, G., Legal Philosophy in 20th Century Legal Philosophy Series, IV (transl. K., Wilk, 1950), pp. 212et seq.Google Scholar; contra, Romano, S., L'Ordinamento Giuridico (2nd ed. 1946), pp. 205et. seq.Google Scholar
95 As pointed out by Stone, op. cit., pp. 190–192.