Ebor lex june 2014 by Adam Walter Woodley

Ebor Lex

Official Journal of the University of York Law Society

Terrorism Special

June 2014 1

Ebor Lex

June 2014

A note from the Editor

Editor-in-Chief

Saoirse (Sersha) Godfrey

elcome to the summer issue of Ebor Lex, the student run official journal of the University of York Law Society.

In this publication, the submissions have exceeded our expectation in terms of both quantity and quality, a development that we hope will become a tradition. I would also like to extend thanks to those who have contributed and recIn this issue, we have implemented a few ognize their hard work, alongside thankchanges with the hope of the publica- ing our gracious sponsors for making tion’s continued expansion and growth. this publication possible. Over the year, we have introduced a number of new roles to capitalise on the skills and expertise of our student body, including several interim editors, a Webmaster and a Creative Director.

The Ebor Lex team would also like to welcome future contributors in our upcoming issues throughout the academic year. Please do not hesitate in contacting any member of the team with your ideas, pitches and submissions.

In just three days, the amazing interim team has pulled together to create some- Thank you for reading, thing truly exceptional and I would like to extend my sincerest gratitude to the Sersha Godfrey team for their work.

Hello

www.eborlex.co.uk 2

Deputy Editor

Nick KT

Creative Director

James Reckitt WebMaster

Adam Walter Woodley Content Editors

Rhiannon Barnsley Karima Sam James Robinson-Johnson Interim Editors

Shanelle Maria Kissoon Jacob James Turner Jamie Monteith-Mann Katrina Beveridge James Gray

Contents Why We Obey: are we motivated from above, below or within?

Jack Hall

Liberty, Security and the Balancing Metaphor

Katrina Beveridge

Terrorism and the Right to Life: a Hypothetical Judgment

Dan Norris

Should suspected terrorists be treated differently to ‘ordinary criminals’ in law and Nick Knotraros-Tsiokos practice?

The Dark Side of Technology in the Defence of Human Rights

Adam Woodley

Is There Justice Without Morality?

Ben Greene

Limiting Freedom of Expression

Benjamin Reidman

Smashing Sexism: The Trajectory of Gender Inequality and Reform

Xavier Peluso

A crictical comparison of the capacity of criminal trials and truth commissions to deal Scott Halliday with the gender dimension of post conflict justice

Are practitioners balancing the scales correctly? A brief analysis of the rationale Max Dyck behind the parallel application of equity and common law

Unlawful Laws: a Hypothetical Judgment

Mark Shapiro

Vulnerability, Discretion, and Public Housing Policy

Joshua Douglas

The Right to Education Over Time

Rachel Newell

55 3

Ebor Lex

June 2014

Why we Obey Are we motivated from above, below or within? Jack Hall

or something so prevalent in the lives of all citizens, it seems odd that people so very rarely question the existence of the law. The majority of people in our society unquestionably obey the law most of the time without presenting any rationale as to why. Obedience to the law is not questioned or unpacked and is instead seen as the accepted thing to do. Indeed, Joseph Raz goes as far as to say that ‘there is no general obligation to obey the law [...] not even in a just society’1. This begs the question, why does the majority of society obey the law the majority of the time? This writer has selected three justifications and will use this essay to explore each of them in turn, citing various sources and research in an attempt to find a definitive answer. Firstly, it will look at whether the standing 1 Joseph Raz, ‘Authority and Consent’ [1981] 67 VLR, 103

of a law-making body has a cohesive link with obedience. For instance, if the state making law is perceived as unjust and so does not have the respect of its citizens, does this mean disobedience is more likely? It will then examine the concept of deterrence, questioning whether people obey the law because they fear the consequences the state will impose if they do not. Finally, the essay will question whether obedience to the law comes as a result of an inherent deontological belief by humans that certain actions are ‘good’ and ‘bad’ and, thus, if the law were to be abolished, the majority of people would not do ‘bad’ things because of their own personal morality. In its conclusion, this writer will find that the answer is a combination of these three ideas which are flawed in their own right but coalesce to form a satisfying justification for why society will never need to be obligated to obey the law.

Thomas Jefferson famously said that “if a law is unjust, a man is not only right to disobey it, he is obligated to do so”2, implicitly confirming that the main motivation for obeying a law should be its fairness. Whilst an element of this fairness derives from a person’s own moral code, much hinges on the law-making body itself and how it is perceived by society. It can be argued that punishments and oppression have no effect on obedience when laid down by a state that does not have the respect of its people. As a result, if a state is seen as legitimate and fair in the eyes of its people, this means it is more likely to be obeyed, even if it passes laws not everyone agrees with. Tom R. Tyler labels this as ‘state legitimacy’3 and argues that this 2 Thomas Jefferson, ‘The Declaration of Independence’ (July 4, 1776) 3 Tom R. Tyler, Why People Obey the Law

is the main aim of leaders as it provides stating that ‘[a] legitimate authority is one police and the courts following their arrest. them with ‘discretionary authority’4. This that is regarded by people as entitled to Papachristos reveals that, even in situations can be substantiated through historical have its decisions and rules accepted and where the criminal receives a negative evidence, most notably in recent global followed by others’5. The most effective outcome, they will still view the state as conflicts. Tyler’s reference to the Vietnam way of assessing whether state legitimacy legitimate ‘so long as they view the process War holds particular weight as, for many affects obedience is to examine people’s by which said decision was made as being fighters, their belief in their legitimate state interactions with the legal system and so procedurally just’6. This seems significant outweighed their own personal beliefs the most prominent research is conducted in stopping criminals from reoffending about the rightness and, hence, encouraging of the war. By having them to obey the law in even in situations where the criminal receives a legitimacy, law-makers the future. If a criminal negative outcome, they will still view the state as can pass rules that, feels disillusioned by whilst being unpopular legitimate ‘so long as they view the process by which the justice system or or controversial, will said decision was made as being procedurally just’ feels they have been still be followed because treated badly, this may the state has already built a respected using criminals. Although criminals have make them more likely to avenge their reputation for itself. disobeyed the law, research have shown harsh treatment by disobeying the law. they view the state has more legitimate If, however, they feel as if the police and Extensive research has been conducted when they are treated correctly by the the courts have treated them with respect on the idea of a legitimate state and what and fairness, there will be less resentment constitutes one, with Skogan and Frydl 5 National Research Council, Fairness And (Princeton University Press 2006) 4 4 ibid, 4

Effectiveness In Policing: The Evidence (Commission to Review Research on Police Policy & Practices, 2004) 297

6 Andrew Papachristos ‘Why Do Criminals Obey the Law? The Influence Of Legitimacy And Social Networks on Active Gun Offenders’ [2009] 397, 402

Ebor Lex

June 2014

and bitterness after their punishment. As criminals are one of the few groups in society who have direct interaction with the state, it seems fundamental to ensure they are treated in the correct manner in order to secure obedience when they are merged back into society.

consequence? This writer does not think so, instead believing that every person has a moral code which tells them what is right and wrong and the law acts as a safety net to add further protection, rather than completely guiding people on what is morally acceptable. This inherent moral awareness is, in this writer’s opinion, the first port of call for people when obeying the law. Rather than following the law ‘because it is law’18, people follow their own moral code which, most of the time, coincides with the key principles of the law. Tyler and Darley appear to favour this view, arguing that a true law-abiding society is not one motivated by fear ‘but rather by a desire to act in socially appropriate and ethical ways’19.

However, it would seem that state legitimacy and obedience do not always come hand in hand. Tyler appears to adopt this stance, stating that legitimacy can only be viewed as of fundamental importance when it leads ‘citizens to behave in ways not always consistent with their shortterm self-interest’7. The various protest movements seen throughout history, such as the Suffragette movement and even the recent student riots, certify that this is not the case as people are not prepared to obey laws just because they have been laid down by a legitimate state. Robert L. Holmes turns this concept on its head, adopting a consequentialist approach to assess a scenario in which laws are obeyed even when state legitimacy is not achieved8. In a hypothetical oppressive regime, Holmes notes that, from a consequentialist viewpoint, disobeying the state would bring about more harm than good, as it would lead to stringent penalties enforced by the state. This would result in people obeying laws enforced by an illegitimate state, even if those laws challenge their moral beliefs. Certainly, this can be evidenced through oppressive regimes seen throughout history, the most notable of which was Nazi Germany, where many German citizens turned a blind eye9 to various oppressive measures rather than do the ‘morally good’ thing, out of fear that they would be apprehended themselves.

down on them with a feeling of hatred punishment. and fear. Even in a reasonably just society, such as the United Kingdom’s, deterrence However, whilst it can be conceded is one of the aims found in the Sentencing that deterrence certainly plays a part in Guidelines10, indicating that it is not just motivating people not to break the law, oppressive regimes that want its people Beccaria places too much weight on its to look at the fates of the disobedient and significance and more recent studies have take note. Classic philosopher Beccaria shown deterrence to be a far smaller piece opined that deterrence motivated those of the jigsaw than Beccaria gives it credit who might have otherwise committed for. A 2005 extract regarding deterrence 13 crimes to rethink their actions. He states theory makes a valid point when it states that those nations that have tried to dispel that it is difficult to evaluate the significance evil through ‘good laws’11 rather than and effectiveness of deterrence, since waiting for humans to change are more only those who are not deterred come This would suggest that fear of sanctions effective. Clearly, Beccaria believes that a to the attention of the law. However, as with state legitimacy, the data or punishment is the core Beccaria believes that a person is garnered from offenders is useful motivation behind choosing to follow a law, since evidence tells motivated not to do ‘evil’ because of the when assessing the effectiveness of deterrence on obedience. us that the oppressive nature law rather than an inherent moral belief. Indeed, a 1999 study which of many dictators’ regimes has investigated the effect of harsher repeatedly quelled unrest in many different countries over history. person is motivated not to do ‘evil’ because sentences on recidivism ‘found that longer Often, deterrence would come in the form of the law rather than an inherent moral prison sentences were associated with a of rendering the ‘offenders’ the lowest level belief. He goes on to say that ‘punishments three percent increase in recidivism’14. in society, with slavery, imprisonment, are unjust when their severity exceeds Regardless of its ability to prevent people exile and even torture or execution being what is necessary to achieve deterrence’12, from committing crimes in the first place, used in the hope that others would look indicating his belief that deterrence is the it seems that deterrence does little to fundamental aim when administering inspire obedience in previous offenders. It 7 Tom R. Tyler, Why People Obey the Law seems likely that more time in prison will (Princeton University Press 2006) 29 8 Robert L Holmes, ‘State-Legitimacy and the Obligation to Obey the Law’ [1981] 67 VLR 133, 141 9 Zach Pontz, ‘German Woman’s WWII-Era Diary Shows How Citizens Turned Blind-Eye to Nazi Crimes’ (The Algemeiner, 14 June 2013) <http://www. algemeiner.com/2013/06/14/german-womans-wwiiera-diary-shows-how-citizens-turned-blind-eye-tonazi-crimes/> accessed 2 January 2014

10 Sentencing Council, ‘Sentencing basics’ (The Sentencing Council, date unknown) <http:// sentencingcouncil. judiciary.gov.uk/sentencing/sentencing-basics.htm> accessed 2 January 2014 11 Cesare Beccaria, On crimes and punishments (first published 1764, New York: Macmillan 1963) 8 12 ibid, 14

13 Onwudiwe, I., Odo, J., & Onyeozili, E. ‘Deterrence theory’ in M. Bosworth (ed.), Encyclopedia of Prisons & Correctional Facilities (SAGE Publications 2005) 234-238 14 Paul Gendreau, T. Little and Claire Goggin, ‘A Meta-Analysis of Adult Offender Recidivism: What Works!’ [1996] Criminology, 34(3) 575, 607

This concept is succinctly summarised by Martin Hoffman who states that ‘most people do not go through life viewing society’s moral norms as external, coercively imposed pressures to which they must submit’20. Instead, the law acts as a confirmation that a person’s moral code is correct. People will often refer to legal authority to back up their own moral beliefs, rather than using it as a starting lead to less community ties upon release do not litter’16 suggesting that conformity, point. This can be seen from a very early and the bitterness mentioned earlier may rather than deterrence, is a decisive factor age. A young child will know it is wrong rear its head if the offender feels their in choosing to obey. Recent statistical to hit or steal without having referred to sentence was unduly harsh. evidence would appear to substantiate legal authority. It is only when they grow Bohnet and Cooter’s theory. In a 2010 up that they learn the actions they knew In terms of assessing whether deterrence study of the cleanest countries in the world, to be morally wrong are also forbidden affects obedience more generally, various Singapore (which has some of the harshest by law. Furthermore, Tyler and Darley psychologists have based their research littering laws on the planet) ranked just fuel the argument that deterrence pales on other social norms which influence 28th17 based on 25 performance indicators. into insignificance when coupled with compliance, effectively ruling out This would suggest that disproportionately individual morality, since the threat of deterrence as a factor through process harsh laws aimed at deterring may have punishment is not necessary when a of elimination. Licht states that all of the detrimental effects and gives further person is following the law because of studies in recent years are linked by the justification as to why deterrence does not their morals. They argue that ‘people take fact they all rely ‘on some underlying appear to be a major motivating factor the responsibility for following rules upon normative premise shared by the subjects behind people deciding to obey the law. themselves’21, not because they fear the as a precondition for compliance consequences if they do not, but that is not driven by deterrence’.15 Disproportionately harsh laws aimed at because it is the right thing to do. One such study which explores this idea is a study conducted deterring may have detrimental effects Tyler and Darley illustrate this by Bohnet and Cooter in 2003 through a hypothetical scenario which concludes that co-ordination (the where murder becomes legal. Their idea that the law should help people to One way to test the insignificance of statement that ‘most people would not predict what others will do) has a much deterrence as motivation to obey the law is commit murders because murdering larger effect on obedience than deterrence. to ponder on what would happen if it did someone would still be contrary to their One of the examples they use to highlight not exist. If deeds such as murder, assault, 18 Amir N. Licht, ‘Social Norms and the Law: Why this is littering, citing the fact laws on theft and other criminal acts were to go Peoples Obey the Law’ [2008] 726 littering are rarely enforced by the police unpunished, would this lead to an increase 19 Tom Tyler & John Darley, ‘Building A Lawand yet in some countries, people seldom in such acts for the simple reason that Abiding Society: Taking Public Views About Morality and the Legitimacy of Legal Authorities into account litter. Clearly, if the sanctions are so people would know that there would be no when Formulating Substantive Law’ [2001] 707 rarely carried out, this is not as a result 20 Martin L. Hoffman, ‘Moral Internalization: of deterrence. According to Bohnet and 16 Iris Bohnet and Robert D. Cooter ‘Expressive Current Theory and Research’, in Leonard Berkowitz (10th ed.) Advances in Experimental Social Cooter, ‘people are less likely to litter in Law: Framing or Equilibrium Selection?’ [2003] 18 17 AsiaOne, ‘S’pore not in list of cleanest countries Psychology (Academic Press, 1977) 85-86 a clean environment where most others in the world’ (AsiaOne, 19 February 2011) <http:// 21 Tom Tyler & John Darley, ‘Building A Law15 Amir N. Licht, ‘Social Norms and the Law: Why Peoples Obey the Law’ [2008] 741

www.asiaone.com/print/News/AsiaOne%2BNews/ World/Stor y/A1Stor y20110219-264408.html> accessed 4 January 2014

Abiding Society: Taking Public Views About Morality and the Legitimacy of Legal Authorities into account when Formulating Substantive Law’ [2001] 715

Ebor Lex

June 2014

Careers in law

Whilst almost everyone would agree that murder is morally wrong, people’s morals may shift for less serious offences

own sense of what is right and wrong’22 is a valid one. The rationale behind most people not committing murder is not because they fear the punishment but is, rather, because they know it is an immoral action that they could not bring themselves to commit. To take another’s life is the ultimate bad deed and, whether the punishment was life imprisonment or a £50 fine, most people’s moral codes would not allow them to go through with it. A strong moral code also renders the concept of a legitimate state somewhat immaterial. In the hypothetical scenario posed by Tyler and Darley, if our state legalised murder, society would not blindly obey this law simply because it has been laid down by the government. Instead, there would be protests and demonstrations by the public to show the state that such a law would contradict their moral code. Morality not only provides an explanation for obedience to the law, but also goes some way to show why people disobey or oppose controversial laws, as seen through the protests against legalising gay marriage and the student riots of 2011. This is particularly interesting when framed in the age-old philosophical debate on moral ethics. Certainly, the idea that actions should be carried because they are inherently right (and, by the same token, other actions should not be carried out because they are inherently wrong) is deontological in nature. However, Immanuel Kant, widely believed to be a deontological theorist, is firmly against the idea of disobeying laws that contrast a person’s moral beliefs. Instead, he seems to believe the legitimacy of the state is of 22 ibid, 716 8

paramount importance when exploring obedience, stating that ‘it is the people’s duty to endure even the most intolerable of abuse of supreme authority [...] [as] resistance to the supreme legislation can itself only be unlawful’23. At first glance, Kant appears to be stepping away from deontology as he is arguing that the law should be followed because it is law, rather than because it is the right thing to do. However, when unpicking his statement, it still appears to be rooted in deontological ideas, as Kant is of the belief the law should be followed because following the law is the right thing to do, even if the laws themselves are abusive. Certainly, Kant places more importance on the need to do the ‘right thing’ (ie. to obey the law) at whatever cost, even if that ‘right thing’ contradicts a person’s moral code.

was based purely on an individual’s moral code would result in never-ending debates on which actions were right or wrong due to the sheer subjectivity of personal morality. Instead, the law’s role as a safety net ensures that, even where there are differences in opinion regarding what is right and wrong, there is a clear guideline on what the legally acceptable behaviour is.

This makes the assumption that everyone’s moral code is the same and, as a result, highlights a flaw in the argument that people obey the law purely on the basis of their own moral code. Whilst almost everyone would agree that murder is morally wrong, people’s morals may shift for less serious offences. Some people believe speeding is inherently wrong but find it acceptable to speed on a motorway when they have something important to attend. Some people may find it acceptable for a starving person to steal a loaf of bread, whilst others believe any kind of theft is wrong. These differences of opinion show that it is incredibly difficult to achieve Kant’s unifying moral code and highlight that a world where obedience

Somewhat disappointingly, the conclusion to this debate lies somewhere in the middle of the three issues discussed in this essay. Neither state legitimacy, deterrence nor personal morals can claim to categorically influence lawabidingness alone, but the combination of all three go some way to influencing the majority of society to obey the law. Morality appears to be the earliest of these to take effect and, perhaps due to this, seems to have the most weighting in a person’s lifetime. The role of the law, through state legitimacy and deterrence, is to provide a benchmark and a certain amount of clarity where morality becomes vague or differs from person to person, allowing for uniform obedience in society. Raz’s statement that ‘there is no general obligation to obey the law’24 still very much stands, as none of the justifications discussed in this essay place any obligation on society to obey the law. However, so long as people still have a strong sense of morality and the law acts as an aid to provide lucidity and ubiquity through legislation, this writer firmly believes that, on the whole, obedience can be achieved without the need for the general obligation Raz speaks of.

23 Immanuel Kant, The Metaphysical Aspects of Justice (first published in 1785, Indianapolis: BobsMerrill, 1965) 86

24 Joseph Raz, ‘Authority and Consent’ [1981] 67 VLR, 103

New York GMT -5hrs

London GMT

Paris GMT +1hrs

Dubai GMT +4hrs

Hong Kong GMT +8hrs

Singapore GMT +8hrs

The best of all worlds. All in one place. Working with international offices should feel seamless. Yet not every firm works this way. Even fewer do it with the strong sense of shared culture and collaboration that we have fostered at Hogan Lovells. We routinely tackle complex, high profile cross-border deals; but we always tackle them as one. That’s why for us, and your career, this is the best of all worlds. www.hoganlovells.com/graduates

Ebor Lex

June 2014 convictions.7 However, despite the scope of these powers, not a great deal is promised regarding the protection of liberties. The British CONTEST policy names as its principles effectiveness, proportionality and transparency. Despite this, there have been numerous cases where civil liberties have been disregarded by the enforcement of counter-terrorism measures. Binyam Mohamed’s case represents a clear example of where policy creates a direct conflict between liberty and security. The Control Principle within CONTEST refers to circumstances where the British government will safeguard “secret intelligence gathered by foreign governments and shared with us on a strictly confidential basis”.8 In the case of Binyam Mohamed, such intelligence was used by the prosecution against him and Mohamed appealed for the disclosure of the evidence, which he said was obtained through torture. The counter-terrorism policy thus potentially breached his right to not be tortured and his right to a fair trial under the ECHR. To summarise, although counter-terrorism policy does not explicitly address the issue of conflicting interests of security and liberty, the practice of these policies does create conflict. This leads to use of a balance metaphor to explain security taking priority over liberty. To overcome this, Zedner suggests that perceiving tension between liberty and security is problematic, and an alternative would be to label the relationship as “mutually dependable”.9

Liberty, Security, and the Balancing Metaphor

Katrina Beveridge ounter-terrorism policy is designed for the purpose of protecting national security against the threat of terrorism.1 One of the main challenges faced by governments trying to achieve this aim is that often, measures aimed at enhancing security require a curtail1 HM Government Justice and Security Green Paper 2011

ment of liberty. A balancing metaphor is commonly used to explain the relationship between liberty and security; Waldron argues that “we always have to strike a balance between the individual’s liberty to do as he pleases and society’s need for protection from harm that may accrue from some of the things it might please an individual to do”.2 2 Jeremy Waldron “Security and Liberty: The Image of Balance” The Journal of Political Philosophy: Vol 11 NO 2 2003 pp. 191-210

In this article I will critically analyse the usefulness of such a balancing metaphor; by questioning the “competitive” relationship between security and liberty, the extent to which it is possible to assess the importance of liberty and security against each other, and how in practice the balance of liberty and security manifests. I will argue that it is not possible to objectively balance liberty and security against each other. Various ideas exist regarding the relation-

7 Tom Bingham, “Terrorism and the Rule of Law”, in The Rule of Law (Penguin Books 2011) 8 HM Government Justice And Security Green Paper 2011 9 Lucia Zedner, Securing Liberty in the Face of Terror: Reflections from Criminal Justice, (Journal of Law and Society Vol 32 No 4 Dec 2005)

ship between security and liberty. If the two concepts can be balanced against each other, the relationship between the two concepts must be one of a competitive nature. In his essay Security and Liberty: The Image of Balance, Waldron depicts security and liberty as being on a sliding scale against each other; if the level of risk rises, there is a need for enhanced security measures and this requires some curtailment of liberties.3 The British counter-terrorism strategy, CONTEST, has been highly controversial because of its deference to civil liberties for the purpose of increasing security.4 A string of legislation, the Terrorism Act 2000 and 5 further Acts, have introduced numerous “exceptional measures” which allow the deprivation of liberty for 3 Waldron (n2) 4 CONTEST: The United Kingdom’s Strategy for Countering Terrorism, HM Government July 2011

the purpose of security.5 These exceptional measures include stop and search powers, indefinite detention without charge, TPIMs, control orders and asset freezing powers. Over 600 people were arrested in the UK in connection with terrorismrelated offences in a one year period 20092010. This figure shows the huge remit of the counter-terrorism legislation. The fact that only 58 of these 600 people were later convicted of terrorism offences shows how excessive the widened scope of counterterrorism legislation is.6 Similar is the case in the United States of America; 800,000 “suspects” have been detained under the PATRIOT Act 2001, leading to only 100

This article is continued online at

http://goo.gl/1SgZf0

5 Terrorism Act 2000, Anti-Terrorism, Crime and Security Act 2001, Prevention of Terrorism Act 2005, Terrorism Act 2006, Counter-terrorism Act 2008, Terrorism Prevention and Investigations Act 2011 6 CONTEST: The United Kingdom’s Strategy for Countering Terrorism, HM Government July 2011 11

Ebor Lex

June 2014

Terrorism and the Right to Life: a Hypothetical Judgment

Dan Norris he appellant, Mrs. Jones, leads an appeal against the Secretary of State for Defence on grounds that, by ordering a Boeing 747 to be destroyed at 11:24 am on Tuesday 12th December 2013, her son, Jerry Jones, had his “Right to Life” violated, which is enshrined in Article 2 of the European Convention on Human Rights (ECHR). To supplement this claim, the appellant argues that the order dishonored her son’s human dignity, by treating him as an acceptable loss to save others.

Section 2 of The ECHR states that: “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”1 In response to this appeal, the Minister of Defence has claimed that his actions are justified and completely lawful under section 2 (2)(a) of the Convention, which states: “Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no 1 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 2

more than absolutely necessary: (a) in defence of any person from unlawful violence”2 Whether ordering the destruction of Jerry Jones’ flight is justifiable under the ECHR will depend largely on whether any admissible defenses can be called upon to render a conviction unfeasible under Article 2(a). Defenses in this instance have proven to be unusually difficult to apply given the apparent rigidness of the ‘sanctity of life’ doctrine, which protects human right to life, and these defenses must be argued in light of this principle, which possibly provides a barrier for any possible defence, and would render the positive act of destroying a plane un-lawful under the Convention. It is likely, however, that the Minister of Defence will be able to rely on the defense 2

ibid Art 2(a)

of ‘necessity’, along with philosophical reasoning which could both render a conviction unfeasible. I will first consider this appeal from a moral perspective, in light of no actual common law precedence. The appellant’s case rests on the basis that the Convention cannot justify an act that treats human beings as acceptable losses to save others, as doing so violates their “Right to Life”3, and upsets the ‘sanctity of life’ doctrine that exists as a moral precedence. Under certain philosophical reasoning, it is held that this argument should discourage any action that threatens this right, with no exception. Arguments that would discourage the destruction of a plane in this instance fall under deontological frames of reasoning. This ethical basis is centered on the concept that the moral righteousness of an ac3

ibid Art 2

tion is to be only determined by the action itself, regardless of the outcome. Immanuel Kant is the most famous champion of this principle, and founded the ‘Categorical Imperative’ as a ‘moral law’ to be obeyed in all circumstances. Such a law can provide some precedence and guidance that supports the appeal of Mrs. Jones, and if I can condemn the act on a moral basis it may be easier to classify it unlawful under the ECHR. The Categorical Imperative states that, for an act to fulfill moral soundness, it must be acceptable if applied universally, every human being must be treated as an end, and not a means to an end, and people must behave like they are the absolute moral authority of the universe.4

This article is continued online at

http://goo.gl/Kqtu2Q

4 Immanuel Kant, Groundwork of the Metaphysics of Morals (Cambridge University Press 1998) 13

Ebor Lex

June 2014 civil liberties. It will be concluded that the criminal justice system is adequate to confront the problem effectively.

Should suspected terrorists be treated differently to ‘ordinary criminals’ in law and practice? is that suspect terrorists have long been and often still are treated difn their perpetual effort to ferently from ‘ordinary criminals’. counter terrorism, vulnerable states remain unclear as to what type of measures would At the heart of the issue lies a dilemma with two possible responses: should be more efficient and justifiable.1 suspect terrorists be dealt with within Regardless of continuous attempts the ordinary criminal justice systems to secure the contrary2, the reality or with exceptional measures of control

hybrid.3 This article supports a principled response arguing for the criminal justice model over the war model. It will be demonstrated in three parts that (i) there are compelling reasons why the criminal justice safeguards should be upheld; (ii) the war model cultivates the tendency of exceptionalism, which eventually leads to (iii) the normalisation of extreme measures, thus suppressing human rights and

1 Jonathan R. White, Handbook of Transnational Crime & Justice (Philip Reichel eds, SAGE Publications 2005) 68. 2 Brent L. Smith, Terrorism in America: Pipe Bombs and Pipe Dreams (SUNY Press 1994) 2.

3 Jude McCulloch and Sharon Pickering, ‘PreCrime and Counter-Terrorism

Nick Kontraros-Tsiokos

and coercion? It is a difficult question to answer in absolute terms. Frequently, the two approaches appear fused in a

Imagining Future Crime in the ‘War on Terror’ Br J Criminol (2009) 49 (5): 628-645, 631.

by the use of intelligence data rather than evidence, a strategy which is alleged to corrode constitutionalism.11 The relaxed standards of proof as opposed to the Part I: The principled response of “beyond reasonable doubt” threshold criminal justice of ordinary criminal law allow for the potential suppression or suspension of The wake of the 21st century saw the rights and liberties without necessarily a Anglo-American societies departing strong basis for a case. As Clive Walker from the long established criminal justice puts it12, “intelligence as the trigger for responses to terrorism and President Bush official action is unpersuasive as it is not declaring the ‘war on terror’, thus shiftcourt-cognizable as evidence.” This is a ing the focus from the idea of terrorism fundamental problem for due process as crime towards the perception of a war and it relates directly to the pre-emptive against the United States.4 Soon after nature of control orders against suspect the Madrid bombings, the British Home terrorists. It often leads to miscarriages of Secretary announced that “the norms of justice, with the Guildford Four13 and the prosecution and punishment no longer Birmingham Six14 being classic examples apply”5, deviating from Lord Diplock’s in legal academia15 which demonstrate criminal justice-oriented report6 which this. This strategy effectively reverses the guided the Northern Ireland conflict presumption of innocence and by doing management since 1973.7 Such events so discards traditional principles and due marked serious derogations from the rule process requirements of criminal law “to of law, ignoring proportionality, habeas prevent imagined sources of harm,” as Ercorpus and due process. The strategy icson asserts.16 This alternative procedure of criminalisation, based on evidence essentially asks the juries to ‘join the dots’ gathering and special processes in trials based on often unreliable information and offences, started to compete with that has traditionally been used merely executive risk management implemented for background information rather than through detention without trial, control as a case theory in its own right.17 An exorders, port controls, data-mining and ample of inadequacy of intelligent data to the seizure of assets aiming to prevent support a prosecution was the case of Dr and disrupt.8 These ‘panic legislations’, Muhamed Haneef18, which “spectacularly as they have been characterised,9 created fell apart.”19 certain tensions which eventually led to the famous statement by Lord Hoffman: The substitution of evidence with intel“the real threat to the life of the nation, in ligence data creates further tensions the sense of a people living in accordance relating to the separation of powers, thus with its traditional laws and political val- obstructing the course of justice. The ues, comes not from terrorism but from future of suspects often lies in the hands laws such as these.”10 Thus, it is important of less experienced and more politically to examine these tensions in order to jus- motivated government ministers as optify a preference towards criminal justice based counter-terrorism. 11 Clive Walker, ‘Keeping Control of Terrorists The first and foremost tension is created 4 Leonard Weinberg, Democracy and Terrorism; Friend or Foe? (Routledge 2013) 93. 5 Jessica Wolfendale, ‘Terrorism, Security, and the Threat of Counterterrorism’ Studies in Conflict & Terrorism, 30:75–92, 2007, 75. 6 See Report of the Commission to consider Legal Procedures to Deal with Terrorist Activities in Northern Ireland (Cm 3420, London, 1972). 7 Clive Walker, ‘Clamping down on terrorism in the United Kingdom’ (2006) 4 Journal of International Criminal Justice 1137, 1140. 8 Clive Walker, ‘Keeping Control of Terrorists without losing control over constitutionalism’ (2007) 59 Stanford Law Review 1395, 1400. 9 Amos Guiora, ‘Panic Legislation: The Wrong Response’ (JURIST, 8 March 2010) <http://jurist.org/ forumy/2010/03/panic-legislation-wrong-response. php#.U1fvA1cVDO0> accessed 19 April 2014. 10 A and Others v Secretary of State for the Home Department [2004] UKHL 56 at [97], Lord Hoffmann.

without losing control over constitutionalism’ (2007) 59 Stanford Law Review 1395, 1401 12 Ibid 13 R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Director of Public Prosecutions (1989) 154 JP 237 14 R. v. McIlkenny, Hunter, Walker, Callaghan, Hill and Power (1991) 93 Crim. App. R. 287. 15 Emmanuel – Pierre Guittet, ‘Miscarriages of justice and exceptional procedures in the ‘war against terrorism’ (2008) Centre for European Policy Studies Special Report, 2-3. 16 Ericson in Jude McCulloch and Sharon Pickering, ‘Pre-Crime and Counter-Terrorism

posed to detached judges.20 When implemented, the special control measures are managed by the openly partial government and executed through distinctions between friend and foe, ally and enemy, but not necessarily guilty or innocent.21 Due to the charged climate generated by threat, addressing counter-terrorism in the framework of criminal justice helps ensure that reason prevails, and facts lead to conclusions, as opposed to emotions.22 Problems of impartiality also arise due to the lack of a widely agreed definition of what actions and which persons constitute terrorism and terrorists. The absence of evidence can allow politics and politicians determine who is a terrorist or not and what qualifies as an act of terrorism, as opposed to judges.23 This controversy is illustrated with the example of Nelson Mandela; labelled a terrorist by Margaret Thatcher24, though honoured by David Cameron in his memorial several decades later.25 20 Clive Walker, ‘Keeping Control of Terrorists without losing control over constitutionalism’ (2007) 59 Stanford Law Review 1395, 1402 21 Jude McCulloch and Sharon Pickering, ‘PreCrime and Counter-Terrorism: Imagining Future Crime in the ‘War on Terror’ Br J Criminol (2009) 49 (5): 628-645, 632 22 Nathan I. Yungher, Terrorism; The Bottom Line (Pearson Prentice Hall 2007) 266-268 23 Jude McCulloch and Sharon Pickering, ‘PreCrime and Counter-Terrorism: Imagining Future Crime in the ‘War on Terror’ Br J Criminol (2009) 49 (5): 628-645, 631 24 Anthony Bevins, ‘Nelson Mandela: From ‘terrorist’ to tea with the Queen’ (The Independent, 09 July 1996) < http://www.independent.co.uk/news/world/ from-terrorist-to-tea-with-the-queen-1327902. html> accessed 19 April 2014. 25 ‘Nelson Mandela memorial: Obama lauds ‘giant of history’ (BBC, 10 December 2013) <www. bbc.co.uk/news/world-africa-25311513> accessed 19 April 2014

This article is continued online at

http://goo.gl/8nltle

Imagining Future Crime in the ‘War on Terror’ Br J Criminol (2009) 49 (5): 628-645, 633. 17 Ibid 18 Mark Rix, ‘The Case of Dr Mohamed Haneef: An Australian ‘Terrorism Drama’ with British Connections’ Sydney Business School - Papers (2009) 126-147 19 David Dixon, ‘Interrogating Terrorist Suspects: Criminal Justice and Control Process in Three Australian Cases’ UNSW Faculty of Law Research Series (2008) vol. 24. 18 15

Ebor Lex

June 2014

The Dark Side of Technology

Adam Woodley

as the increase in the use of technology negatively outweighed its effectiveness in human rights activism and defence? There is a universal human right to freely express an opinion without repression or fear of reprisal – the right to freedom of expression. Despite the protection afforded by the United Nation’s Declaration on Human

Rights Defenders1, human rights defenders (HRDs) carry out their work in fear of violence directly or indirectly caused by their governments. As technology has developed, HRDs have utilised the internet, mobile phones, email and social media to make the world aware of the human rights violations occurring in their country. On the one hand, technology has arguably made it easier to carry out their work, but on the other, technology remains in the control of the government and developers of such technology, to the extent that 1 United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms

privacy is often overlooked. HRDs require a measure of privacy in the technology that they employ. Without privacy, communications can be intercepted and the whereabouts of HRDs can be uncovered through metadata packaged with email attachments and photographs posted to social media sites and networks. This has led to a game of cat and mouse whereby the HRDs and non-governmental organisations (NGOs) develop tools to circumvent system defaults which allow surveillance of communications, and as a result of their efforts, governments and private companies create tools which fight back and restore their ability to hijack commu-

in the Defence of Human Rights nications and track users online. It can be argued that technology has also empowered activists. Before the increase in the use of technology, human rights movements operated with a more physical presence. This meant protesting in person to rally governments to keep to their obligations under international conventions. More often, we now see that the human rights movement has utilised the digital online space to protest against the political powers of their constituent countries because “some governments are so oppressive that no domestic human

rights movement can exist openly”2, and to escape the risk of violence, the use of technology removes almost all threat. Technology will have almost directly impacted the number of cases of physical inflictions of violence from governments on HRDs. In essence, technology has begun to address the imbalance of the power of state and citizen. Technology has empowered HRDs, from the men and women on the ground at the frontlines, all the way up to the many 2 Kenneth Roth, ‘The Abuser’s Reaction: Intensifying Attacks on Human Rights Defenders, Orgnizations (sic), and Institutions’ (2010) 16 Brown Journal of World Affairs 15, 17

national and international NGOs. With nearly a third of humankind online, the internet offers increased communications and data gathering potential to HRDs. Social media sites such as Facebook and Twitter have given all HRDs the ability to send messages, pictures and videos quickly and easily to a vast audience across the world. NGOs can now benefit from the scale and pace at which social media tools operate. The beauty of the use of Facebook and Twitter is that with these sites being based in forwardthinking nations, there are little barriers to free expression enabling HRDs to communicate as they wish to convey the 17

Ebor Lex

June 2014

Doing this without advanced technology is not impossible, but would require a lot of effort to keep up to date, would be cumbersome and would not be accessible by contributors across the country.

To aid in data collection, there is a software package in use by human rights activists that helps to systematize information. The software is “designed to facilitate the collection of detailed stories, and to turn those stories into data that can be used to present a complete and accurate picture of human rights violations”3. The different forms of technologies can be summed up into two groups: data collection and communications technologies. One has the power to collect information on human rights abuses, and the other, to let the world know about those abuses. What makes social media and email so effective? It may be argued that, compared to previous methods of communication, the speed of data transmission and the quality of the technology itself, have benefitted HRDs and even contributed to saving lives. Even in the general sense, “for social justice activists, the speed with which news now crosses the globe creates a tremendous opportunity to respond to human rights issues as they emerge”4. Before, NGOs and HRDs would write letters, 3 Office of the High Commissioner for Human Rights, ‘New Technologies and Human Rights Monitoring’ (OHCHR, 6-7 August 2012) <http:// w w w. o h c h r. or g / D o c u m e nt s / H R B o d i e s / SP / AMeetings/20thsession/NewTechnologiesBriefing_ item5.pdf> accessed 8 January 2014 4 Hans Thoolen, ‘The double face of technology for Human Rights Defenders’ (Hans Thoolen on Human Rights Defenders, 13 November 2013) <http:// thoolen.wordpress.com/2013/11/13/the-doubleface-of-technology-for-human-rights-defenders/> accessed 8 January 2014 18

telling stories of human rights violations. Now they can “present these stories to a much broader network of individuals, each of whom raise their voice and stay informed in real time and with various social media tools”5. It has been argued that, for example, “if torture is to be prevented two criteria are fundamental: speed of reaction and the ability to reach bodies capable of taking actions”6. Social media in the form of Facebook, Twitter and email can give the means to fulfil those criteria. The speed of reaction is left largely in the hands of the people on each end of the transmission as technology now allows instantaneous data circulation. Fulfilling the second element of the criteria is more difficult. Firstly, you may choose email and this requires having the email address of the individual or body whom you wish to make contact with. Otherwise, you may build up a network of people who communicate directly with NGOs, governments and international human rights committees and they will be relied upon to pass the message forward. Secondly, there is Facebook, Twitter and online blogs. They are less targeted forms of communication but give the ability to make stories viral or better still, national and international news where it will certainly reach the right body capable of taking strategic action.

works require an internet connection), but instead, networks which aid a specific part of the work of a HRD. The use of networks has meant that communicating with members and partners of NGOs is now almost never paper based7. Paper-based documents are slow to send and receive and are arguably easier to compromise. Additionally, on a network you are able to send documents to as many people as you wish and you are able to encrypt files to keep them secure. Overall, networks are capable of mass communication that is safe and instantaneous and this helps HRDs substantially. Amnesty International (AI) took advantage of networks when they set up their Urgent Action network (UA) in 1976 to “permit an immediate and dramatic response to a situation where there is a grave risk that someone will be tortured or killed and where time is of the essence”8. The network consists of members who have agreed to be on standby to promptly send appeals on new cases to coordinators who file the appeals in the country where the case occurred. Such an immediate response to human rights violations would be impossible without technology.

Networks with many contributors have been developed through accessible softLet us look now at the use of networks. ware applications built for specific purposWe are not discussing here the use of the es. For example, Van Jones, a HRD from internet as a network (though, these net- the United States, advocates against police brutality. His NGO, “Bay Area Police 5 Samir Goswami, ‘How Technology Is Helping Us Better Protect Human Rights’ (Huffington Post, Watch”, has designed a computer database 11 November 2013) <http://www.huffingtonpost. that allows them to track problem officers, com/samir-goswami/technology-is-helping-humanrights_b_4235715.html> accessed 8 January 2014 6 Steven Hick, Edward Halpin and Eric Hoskins, Human Rights and the Internet (Macmillan Press 2000) 82

7 Ibid, 77 8 Laurie Wiseberg, ‘Protecting Human Rights Activists and NGOs: What More Can Be Done? (1991) 13 Human Rights Quarterly 525, 532

The ‘Arab Spring’ was underpinned by technology, which is indicative of the significant role it plays in modern conflicts

▶

real issue at stake. Additionally, a global audience means that oppressive governments are put under pressure from other nations to respect human rights and fundamental freedoms.

precincts and practices. Van Jones claims, “At the click of a mouse we can now identify trouble spots and trouble-makers”9. Doing this without advanced technology is not impossible, but would require a lot of effort to keep up to date, would be cumbersome and would not be accessible by contributors across the country. Thus, software gives great processing power to HRDs, requiring less work and ultimately meeting greater goals with a greater audience. However, technology can only be relied upon up to a certain point, after which it becomes the job of the HRDs to process the information. With the surplus of information we see now, it would require tremendous manpower to use the data collected.

methods of working bring new flaws and opportunities for others to exploit those flaws. Whilst governments are generally resistant to change (especially with regards to human rights), their efforts to combat HRDs have evolved. “There is a long, sordid history of human rights defenders being censored, imprisoned, mysteriously “disappearing,” or killed. But in recent years, the silence-the-messenger efforts of many governments have grown in subtlety and sophistication.”10 The increase in use of technology has given governments the ability to pursue their interests in a more covert way; the use of technology has started a game of cat and mouse.

On the dark side, the creation of new

10 Kenneth Roth, ‘The Abuser’s Reaction: Intensifying Attacks on Human Rights Defenders, Orgnizations (sic), and Institutions’ (2010) 16 Brown Journal of World Affairs 15, 16

9 Kerry Kennedy, Speak True To Power (Crown Publishers 2004) 68-69

technology can decrease the capacity of HRDs to carry out their work. Those are (1) hacking and data theft (2) tracking; and (3) privacy concerns. Hacking and data theft concerns the practice of governments and private organisations that intentionally break through security measures that have been put in place to protect the data and prevent anyone but the targeted recipient from viewing the data. Some governments go further than monitoring HRDs, as “emails [are] being read, forwarded, modified and deleted.”11 Additionally, software is installed on activist’s computers which records activity including passwords that then enables oppressive regimes to steal computer files and compromise further inThere are distinctly three examples of how ternet services used by HRDs. 11 John Lannon and Edward Halpin, Human Rights and Information Communication Technologies: Trends and Consequences of Use (IGI Global 2013) 161 19

Ebor Lex

June 2014

Many users don’t think through the potential misuse of the content they willingly contribute and don’t look ahead to the profile they are building of themselves when services and networks become inter-linked

Governments can track a user’s online activity to find where the connection originates and finally determine who and where the targeted person is to take action against that person. One of the problems is that “the digital technologies and tools people tend to use to expose rights abuses, however, are designed with unprecedented tracking and archiving abilities.”12 Many HRDs respond to this by concealing their identity or by creating a public profile to mask their identity or location. One method of doing this is to use Tor, which runs on the onion network. Governments see the use of Tor as a threat and have decided to call them “dark networks”13 because some activity carried out on the network is criminal in nature. This has fuelled the cat and mouse game once again, creating a justification for governments to intensify surveillance. Marta is a Honduran HRD and operates within a network of human rights investigators and chooses to use Tor to “encrypt her internet traffic and routes it via remote computers, masking the location of her internet activities.”14 Technology continually changes unlike old methods of paper-based communication and to counter the use of dark networks, Raytheon the world’s fifth largest defence contractor15 has created an “extreme-scale analytics system.”16 The “secretly developed software [is] capable of tracking people’s movements and predicting future behaviour by mining data from social net12 John Lannon and Edward Halpin, Human Rights and Information Communication Technologies: Trends and Consequences of Use (IGI Global 2013) 162 13 Ibid, 158 14 Tanya O’Carroll, ‘Mobile technologies helping activists and human rights defenders’ (Ethical Consumer) <http://www.ethicalconsumer.org/ethicalreports/mobilesreport/activism.aspx> accessed 8 January 2014 15 Ibid 16 Ryan Gallagher, ‘Software that tracks people on social media created by defence firm’ (Guardian, 10 February 2013) <http://www.theguardian.com/ world/2013/feb/10/software-tracks-social-mediadefence> accessed 8 January 2014 20

working websites.”17 This is both a tracking and privacy concern. It is safe to say that such powerful technology in the hands of private companies and governments will inevitably be used in a malevolent way to further the oppressive regime’s aims – the problem is that there is no one to safeguard the use of the technology and surely it may be regarded as an infringement of the right to a private and family life18 if the data was mined from social networking sites where a user has finely tuned their security settings to only allow friends and family to view their content. Dangerously, the Riot technology can break through that security and makes it possible so that “intelligence gathering can now be carried out as desk research that would have previously taken more resources and time to gather.”19 For all HRDs, privacy is of the utmost priority. HRDs fail to protect themselves because they assume that the technology in use is secure. New technologies allow “companies and the state to monitor private communications”20. In response to technological advances, emerging and proposed privacy laws legitimise and allow new levels of surveillance on citizens of the state21. HRDs also send their material to organisations under the false impression that their data is safe. Even software that HRDs use on their “secure” devices with a “secure” connection are not safe. Basem Fathi, a HRD from Egypt said: “we were using Skype for a long time thinking that it was protected and secure.”22 The problem is that “many users don’t think through the potential misuse of the content they willingly contribute and don’t look ahead to the profile they are building of themselves when services and networks become inter17 Ibid 18 European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 8 19 John Lannon and Edward Halpin, Human Rights and Information Communication Technologies: Trends and Consequences of Use (IGI Global 2013) 166 20 Ibid, 160 21 Ibid, 160 22 Ibid, 163

linked.”23 Algerian blogger Abdelghani Aloui failed to do this and shared photos and caricatures of the President and Prime Minister on his Facebook account.24 Using his own name and failing to secure his profile, the government was able to locate and detain Aloui. That is the chilling effect of the rise of technology and failure to change with technology and maintain a perimeter of safety without reliance on technology. In sum, technology has empowered citizens in the fight against government for the protection of human rights and fundamental freedoms. It is much safer to protest against governments online than it is to do so in person. The internet is now so widespread that it enables more HRDs to connect with each other and with NGOs to instantaneously share data on human rights violations. The internet and social media allows HRDs to push stories of human rights violations, with a little help from an engaged audience, into national and international news and press which aids HRDs and NGOs by adding pressure to governments to follow their human rights obligations. Activists are able to deal with violations swiftly and in an appropriate fashion such as AI’s UA network. On the other side of these arguments is the exploitation of technology. Hacking HRDs gives the ability for private companies and governments to monitor and steal data. They are then able to use this data to locate a person and find his/her identity to take action against that person, no matter the steps taken to prevent this. However, technology has not decreased the capacity of HRDs to carry out their work as each disadvantage is more than compensated by the power of technology.

23 Ibid, 166 24 Amnesty International, ‘Algeria: Release blogger held for sharing photos on Facebook’ (Amnesty International, 15 October 2013) <http://www.amnesty. org/en/news/algeria-release-blogger-held-sharingphotos-facebook-2013-10-15> accessed 8 January 2014

Is there justice without morality? Open Letters to the Legal Minds of the World “Where justice is not even aimed at, where equality, the core of justice, is deliberately disavowed in the enactment of a positive law, then the law is not simply ‘false law’, it has no claim at all to legal status” Gustav Radbruch

Ben Greene To whom it may concern,

and the Middle East, the answer to the question ‘is immoral law, still binding law?’ has scarcely been more relevant1.

write in defence of humanity. The issues raised in this I propose that at the heart of law is the letter, though philosophical at their core, have practical im- 1 ‘Egypt: After the Revolution’ (BBC News, 25 2013) <http://www.bbc.co.uk/news/worldplications throughout the world. January middle-east-21199124> accessed 21 December 2013 Indeed faced with the recent politi- ‘Libya: The Fall of Gaddafi’ (BBC News, 20 October <http://www.bbc.co.uk/news/world-africal liberations in Northern Africa 2011) ca-13860458> accessed 21 December 2013

search for justice, a concept based in morality, and so law without morality is illdeserving of legal title. The concept of separating law from morality, championed by Professor Hebert Hart2, gained much favour through the nineteenth and twentieth century. I fear, that if this trend prevails, legislators and judiciaries risk losing sight of what is most 2 HLA Hart, ‘Positivism and the Separation of Law and Morals’ [1958] 71 Harv.L.Rev. 593 - 629 21

Ebor Lex important. For what is the purpose of law if not to enhance the quality of human existence? Following a brief examination of the inherent dangers in Hart’s theory, I will justify my conviction that immoral law is not law at all. In my defence of the inseparability theory, I seek to champion the formula of Gustav Radbruch; a man who sought to unite the concepts of natural law and positivism in a practical and universal way.

The question we must ask is, if a rule does not liberate but oppresses, does it merit legal status? Positivism suggests it does; I beg you to think otherwise.

Legal positivism defines law by its proper creation. It was Hart’s belief that a rule became law once it has been posited by an appropriate authority according to due process, regardless of content. Thus positivism claims to serve one high moral idea; that of fidelity to the rule of law. It rejects implicitly the ideals of natural law such as those posited by Saint Thomas Aquinas and, more recently, John Finnis3. In ‘Positivism and the Separation of Law and Morals4’, Hart sees no necessary connection between law and morality; nor, worryingly, does he see any need for one. This is indeed troublesome. Such an approach makes it possible for the most heinous whim of an unscrupulous leader to become binding in law. I encourage all positivists, such as Hart5, to consider Adolf Hitler’s ‘Destruction of Lives Unworthy of Life Order’, which extended his genocide program in 1939. This concept surely horrifies all humans on a fundamental level, yet following positivist theory we have no choice but to accept it as law. This in turn provides indemnity for people who commit hideous actions, claiming to be nothing more than instruments in a system of aggression towards a population. Judge Jackson at the Nuremburg trails, advocating for morality6, identifies this problem: “The real complaining party at your Bar is Civilization. . . the refuge of the defendants can only be that international law will lag so far behind the moral sense of mankind that conduct which is a crime in a moral sense must be regarded as innocent by law.”7 The question we must ask is, if a rule does not liberate but oppresses, does it merit 3 John Finnis, ‘Aquinas’ Moral, Political, and Legal Philosophy’ (The Stanford Encyclopaedia of Philosophy, 2011 Fall edn) 4 Ibid 5 5 HLA Hart Law, ‘Liberty and Morality’ (Stanford University Press 1963) 6 Lord Devlin, ‘The Enforcement of Morals’ (Oxford Paperbacks 1968) 7 ‘The Nuremburg Precedent’ <http://www.larouchepub.com/impeach_ridge/ridge_5.html> accessed 18 December 2013

June 2014 legal status? Positivism suggests it does; I beg you to think otherwise. If we accept that not everything is able to become law, then what can? My earlier proposal, that law ought to enhance human existence, is founded on work by the early Italian philosopher Saint Thomas Aquinas8 He suggested that there were three requirements for valid law. The first was that law should do general good which was a prevalent view at a heavily religious period of history9. Second, it should be made by and approved by a community leader and, third, promulgated to the people; requirements which form the basis of positivism. Aquinas surmised that law created without good reason was not deserving of legal status: “Human law is law when it accords with right reason, and as such it obviously derives from the eternal law. But when it deviates from reason it is lawless, and is more a kind of violence”10 Hart questions whether morality is essential in defining something as law. I suggest that law without a moral basis should also be considered as ‘a kind of violence’, and does not merit the title of law. In consequence we return to the question, ‘can law bind us if it had no beating moral heart?’ Any attempt to justify an indivisible connection between law and morality requires a brief examination of morality itself. Morality has been a fundamental component in the development of our legal system. The morality I speak of is not an elusive, subjective concept but an objective morality with clear and defined boundaries. The first legislators created statute based on their own moral views but this, in time, has shaped law into a moral persona of its own. A persona founded in conscience, religion, social norms and concepts of common decency and of fair play11. Some claim that this persona has lost clear definition as a blend of cultures and beliefs now influence the legislation, but this does not mean its intrinsic value is lost. I seek to persuade you that morality is not only integral to law but vital to its survival. The morality of law can be seen both in 8 Finnis (n 4) 9 St Matthew, 25:31-46 10 R Pasnau, ‘Thomas Aquinas on Human Nature: A Philosophical Study of Summa Theologiae’ (Cambridge University Press 2002) 79 11 Lon. L. Fuller, ‘Positivism and Fidelity to Law – A reply to Professor Hart’ [1957] 71 Harv.L.Rev 630-673

process12 and in substance13. This letter demands that legislators must keep morals at the heart of substantive law. Fuller alleged that if the process of creating legislation was moral then the law created was binding. Whilst his desiderata are desirable, even admirable, these qualities fail to solve our problem; abiding by Fuller’s desiderata even the most destructive piece of legislation could still become law. At this point I wish to introduce Gustav Radbruch, a man whose work, attempting to balance positivism and natural law, I endorse. Gustav Radbruch was indeed an extraordinary legal philosopher14. Never before had anyone attempted to bring together two doctrines which were previously deemed incompatible; that of positivism and that of natural law. Originally considered a positivist (although a minority dispute this15), he witnessed the damage unjust law was capable of; during the Nazi occupation of Germany. His change in attitude, brought about by a catastrophic tragedy, is a powerful statement and his post-war works16 are since credited with the revival of the natural law thesis. Radbruchs states: “The conflict between justice and legal certainty should be resolved in that the positive law, established by enactment and power, has primacy even when its content is unjust and improper. It is only when the contradiction between positive law and justice reaches an intolerable level that the law is supposed to give away as false law [unrichtiges Recht] to justice. It is impossible to draw a sharper line between cases of legalized injustice and laws which remain valid despite their false content. But another boundary can be drawn with the utmost precision. Where justice is not even aimed at, where equality – the core of justice – is deliberately disavowed in the enactment of a positive law, then the law is not simply ‘false law’, it has no claim at all to legal status”17

(law becomes invalid when justice reaches an ‘intolerable level’) and the disavowal formula (when equality, the core of justice, is not even aimed at in the process)18. Radbruch has the word justice not morality at the heart of his theory. I submit that morality, in a legal context, is synonymous with justice. Any attempt to define justice is likely to include references to fairness or rightness19. If not from morality, where do these concepts of fairness and rightness come from? Surely the way we describe the foundations of such concepts is in reference to morality? I now draw on the words of Martin Luther King in furtherance of my assertions; as few have voiced a demand for the inseparability of law and morality more eloquently, nor on such a public stage, in recent times: “A just law is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law . . . I would agree with St. Augustine that an unjust law is no law at all.”20 I now wish to assure you that this question is far more than purely academic. There have been several notable applications of this debate in courts of law. The following three scenarios show how our debate can influence the legal decisions directly.

After the downfall of the Nazi regime, Radbruch’s work was thrust under the spotlight by the challenging cases of spite informers21. These people sought to use Nazi law to their advantage and turned in their personal enemies to the regime, fully aware they would be killed. Positivist reasoning protected these people, as under Nazi law their actions were lawful. Hart, understanding that such abhorrent behaviour is deserving of punishment, suggests that issuing a retrospective statute criminalising their actions is our only option22. Most examinations of this formula sepa- This solution seems far from satisfactory rate out two concepts. Robert Alexy sepa- and almost hypocritical. Non-retroactivity rates them into: the intolerability formula is one of the key fundamentals of ‘the rule of law’ which positivism claims fidelity to. 12 Lon L. Fuller, ‘The Morality of Law’ (Yale University Press 1969) 13 Craig Paterson Aquinas, ‘Finnis and Non-naturalism’ [2006] PATAFA 171 14 Heather Leawoods, ‘Gustav Radbruch: An Extraordinary Legal Philosopher’ [2000] 2 Wash.U.J.L.&Pol’y 489-517 15 Ibid 18 16 Paulson BL and Paulson SL, ‘Gustav Radbruch: 5 minutes of Legal Philosophy’ [2006] 26 1 O.J.L.S. 13-15 17 Ibid 15

Morality, in a legal context, is synonymous with justice. Any attempt to define justice is likely to include references to fairness or rightness. If not from morality, where do these concepts of fairness and rightness come from? Surely the way we describe the foundations of such concepts is in reference to morality?

18 Ibid 16 19 Usborne English Dictionary (Usborne Publishing 2000) 20 Dr. Martin Luther King Jr., ‘Letter from a Birmingham Jail’ (1963) 21 Frank Haldemann, ‘Gustav Radbruch vs Hans Kelsen: A debate on Nazi Law’ (2005) 18 2 Ratio Juris 162-178 22 Hart (n 3) 23

Ebor Lex In the most famous case of this kind23, the Bamberg court convicted Ms Puttfarken of the murder of Mr Gottig, not because the statute was ‘contrary to the sound conscience and sense of justice of all decent human beings’24, (as Hart mistakenly translated in his earlier work) but because Puttfarken’s actions were so. We see here a reluctance to fully apply Radbruch’s formula, although this may be politically motivated. Declaring the statute void would have criminalized the behaviour of Justice Nordhausen who had applied this legislation.25 There have however been two examples of direct application. The German Federal Constitution court condemned Decree 11 of the Reich Citizenship Law26 as invalid. The law stated, ‘the property of Jews who have lost their nationality by virtue of the Decree, becomes the property of the Reich with the loss of nationality’27. The court concluded that the legislation ‘so evidently contradicted the fundamental principles of justice . . . it must be regarded as void from the outset’. This allowed Jews to reclaim the property they had lost in restitution. This reasoning was followed more recently in the 1996 decision28 to convict soldiers of 23 Thomas Mertens, ‘Radbruch and Hart on the Grudge Informer: A reconsideration’ (2002) 15 2 Ratio Juris 186-205 24 Ibid 26 25 Ibid 24 26 Reich Citizenship Law 1941, Decree 11 27 Ibid 26 28 R Alexy, ‘A defence of Radbruch’s Formula in D Dyzenhaus Recrafting the Rule of Law: The Limits of Legal Order’ (Hart Publishing Oxford 1999) 15-39

the Berlin wall shootings for manslaughter. Drawing on Articles 6 and 12 of ECHR29 and Radbruch’s formula directly, the German Federal court reiterated that, although the threshold must be a high one, justice must supersede law if necessary to protect humanity: “The offence must be so weighty that it violates the legal convictions of all nations in regard to people’s worth and dignity. The contradiction between positive law and justice must be so intolerable that the law has to give way to justice as a false law”30 It is my belief that we may see this debate resurface as revolution challenges longstanding governments in the Middle East and Africa. Populations, empowered by the concept of human rights, may well try and claim compensation or restitution for their past losses: whether this is a Cameroonian national, jailed for the crime of homosexual activity31, or women in the Middle East for gender discrimination. The courts in these countries will have to address the concerns I have discussed today and provide answers of their own. I hope sincerely that they keep law’s quest for justice at the heart of their reasoning. 29 European Convention on Human Rights, Articles 6, 12 30 Ibid 30 31 ‘Cameroon: Court Upholds Unjust ‘Homosexuality’ Conviction’ (Human Rights Watch) <http:// www.hrw.org/news/2012/12/18/cameroon-courtupholds-unjust-homosexuality-conviction>accessed 03 January 2014

June 2014 Radbruch acknowledges that his solution is imperfect. He understands that he seeks the lesser of two evils. He appreciates that legal certainty, a desirable, even fundamental concept in law, is compromised in the application of his formula. Leaving aside the pedantic argument that pure legal certainty is impossible because of the fluid nature of language, we must question the value of a certain concept if it results in injustice, inequality or damage to human dignity. We must seek a balance. Radbruch realizes there is no standard application of justice; no universal formula we might apply in determining just outcomes. I propose that flexibility is integral to the concept of justice and, therefore, law. Justice should be the focus of all law. Morality, which must not be seen as an impossible concept, is integral to this concept. I support Radbruch’s assertion that law without any attempt to seek justice has ‘no claim at all to legal status’. Positivism sees law as a system of social control designed to regulate human existence. Natural law may be imperfect and its flexibility brings inherent uncertainty. However, its motives are good and righteous, seeking truth and liberation. I believe Radbruch’s formula is the best compromise of the two systems anyone has developed and I urge you to take his reasoning to heart. Regards, A.N Author

He fails to recognise that a call for morality to be included in law would fail to address the problem. The social divide between genders is imbedded in Arabic culture and religion, both of which inform their society’s moral compass.

Surely, it is better that we can accurately describe something as law and then have it revoked, than to pass legislation and have people uncertain of its legal worth from the outset.

In response to Author’s ‘An Open Letter to positive law in very exceptional circumthe Legal Minds of the World’: stances, something, as Author points out, the German Federal Court supports. This uthor’s passionate reinforces the inherent danger of prioritisdefence of the insepa- ing vague principles, such as morality and justice, over literal statue interpretation. rability theory is admi- Legal certainty is a core principle in the law rable. My brief response of our country. Its importance is summed details two concerns. It is my belief up beautifully by Lord Bingham,:

that Author vastly underestimates the complexity of morality, and that the important ideal of legal certainty should not be so easily sacrificed.

Please be under no illusion that morality is a simple concept. Indeed it is as difficult to define as the concept of justice, Radbruch bases his formula upon. Author’s proposal that legal morality is an objective concept is under-evidenced and dangerously universal. It is my belief that morality may reflect both subjective and objective qualities. In either case, pin pointing the standards that this objective morality adheres to is as much guess work as an act of jurisprudence. This is never more apparent than with Author’s condemnation of the subjugation of women in the Middle East. He fails to recognise that a call for morality to be included in law would fail to address the problem. The social divide between genders is imbedded in Arabic culture and religion, both of which inform their society’s moral compass. I would not go so far as to say that Radbruch’s epiphany makes him a hypocrite (I reject emphatically the assertion of Leawoods that Radbruch never changed his philosophical position32), but he seems far from comfortable with the ideas he posits in his formula. He repeatedly over-emphasises that justice should only supersede 32 Leawoods (n 16)

“The law must be accessible and so far as possible intelligible, clear and predictable . . . Questions of legal right and liability should be resolved by the application of the law and not the exercise of discretion”33 I feel certain he would have supported Hart’s proposal that retrospective criminalization, in the cases of spite informers, is by far the lesser of two evils. Surely, it is better that we can accurately describe something as law and then have it revoked, than to pass legislation and have people uncertain of its legal worth from the outset. Uncertainty is created in both cases; but this is a distinction with a difference. Retrospective acts have been enacted in the past with great success34 . The public must be assured such acts are necessary exceptions but surely that is better than not knowing whether the courts will apply any given law you follow?

judgement surprised many. He stated that if a starving beggar takes the law into his own hands and steals food he remains guilty of theft: “Necessity would open a door which no man could shut…If hunger were once allowed to be an excuse for stealing the plea would be an excuse for all sorts of wrong doing. The courts must take a firm stand”36 This demonstrates one of the foremost champions of natural law of this generation, prioritising the written law, even if the consequences appear unjust. An application of natural law might condone the theft of bread, in support of human dignity. Denning understands that inclusion of such principles in our legal system leaves boundaries increasingly blurred. Clarity is one of Fuller’s key desiderata and if the law is not clear, to legal officials and its subjects, then surely it is effectively worthless?

This is a controversial area of law and I agree with Neuhaus37 that it is likely to remain so forever. Yet I implore you, not to disregard Author’s work, but to treat his assertions with care. Be wary of the consequences of prioritising the principles of justice and morality; whilst individual decisions may seem fair, it is a shaky princiI ask you to examine the case of Southwark ple on which to found a legal system. LBC v Williams35. The defendants, in dire need of accommodation entered empty Yours houses owned by the Southwark London Borough Council as squatters. Their A.N Other defence was a plea for justice and equality. In defence of legal certainty, I call on a man whose life work has been the prioritisation of equity and justice. Lord Denning’s 33 Bingham, ‘The Rule of Law’ (Allen Lane 2010) 34 War Crimes Act 1991 35 Southwark LBC v Williams [1971] Ch 734

36 Ibid 37 37 Paul Heinrich Neuhaus, ‘Legal Certainty versus Equity in the Conflict of Law’ (1963) 28 LCP 795-807 25

Ebor Lex

June 2014

Limiting Freedom of Expression

Benjamin Reidman

lthough the international community sets the parameters for freedom of expression, violators have routinely found themselves able to evade accountability. In order to operate in its primary function of protecting individual freedoms and staving off authoritarianism, freedom of expression 26

must have wide parameters within conventions such as article 19 of the Universal Declaration of Human Rights which to operate. But it must be weighed up against other fundamental human rights. This balancing act requires the freedom of expression to be restrained by governments in cases where it incites violence or threatens the very fabric of the democracy that permitted it in the first place. We live in an age in which freedom of expression is proliferated globally through international treaties, declarations and

(UDHR) and the International Covenant on Civil and Political Rights (ICCPR), and particularly in Europe through article 10 of the European Convention of Human Rights (ECHR). The problem with the UDHR and the ICCPR is that although they are considered to form a part of customary international law that can afford tools for applying diplomatic and moral pressure to governments that violate its articles, they have no further significant practical means of ensuring compliance

by signatories. This is perhaps best attested to by Amnesty International’s claim that many of the signatory states have allowed human rights abuses (including violations of freedom of expression) to continue within their borders a gaping sixty years after the signing of the UDHR.1 The state of North Korea is a signatory to both 1 Amnesty International, ‘Sixty years of human rights failure – governments must apologize and act now’< http://www.amnesty.org/en/news-andupdates/sixty-years-human-rights-failure-governments-must-apologize-and-act-now-200805> published 27 May 2008

of these agreements2, but citizens are required to follow a socialist way of life and government dissidents are frequently sent to reformatory and “re-education through labour” camps.3 Although, such flagrant violations have resulted in considerable sanctions against North Korea, the UN 2 North Korea Now, ‘International Law’ < http:// www.northkoreanow.org/international-law/> accessed 21 December 2013 3 U.S. Department of State, ‘2011 Country Report on Human Rights Practices: Democratic People’s Republic of Korea’ 24 May 2012, < http://www.state. gov/documents/organization/186491.pdf> accessed 21 December

Human Rights Council has no real further enforcement mechanisms at its avail. However, despite the inherent weaknesses of such agreements their worth in setting international standards for human rights provided an important starting-point from which huge strides have been made in the last few decades.4 4 Elizabeth Willmott, ‘The Universal Declaration’s bias towards Western democracies’ (Liberty and Humanity, January 2013) <http://www.libertyandhumanity.com/themes/international-human-rightslaw/the-universal-declarations-bias-towards-western-democracies/> accessed 21 December 2013 27

Ebor Lex

June 2014

Many nations are far more content to simply ignore criticism or pay fines without making any meaningful changes to their legal systems in cases where abuses of freedom of expression have occurred

When the expression concerns political matters wide parameters are imperative to prevent a chilling effect on publication

The ECHR has made more significant progressive legal reform guaranteeing freedom of expression in Europe by providing a higher court to which aggrieved individuals can appeal if they feel that a state has failed to protect their rights. However, this system is also flawed. It includes a number of member states, for example, Russia, Moldova and Turkey, that have maintained poor human rights records5 and lack the fundamental legal protections necessary to defend human rights.6 Russia, for instance, has a generally good record of paying its fines but has mostly failed to address the ECtHR’s demands for reform of underlying deficiencies of their legal system.7 Although these limited international agreements have afforded some additional protection to the citizens of signatory states over time and have created more potential accountability of human rights violators, the internal societal progressive ethos and legislation appear more important. Currently international bodies like the UN can do little but attempt to create more formal legally binding covenants that set parameters for freedom of expression which are either more realistic by recognizing that some member states will constantly be breeching the agreements or accept that some states must be excluded from the covenant (which arguably would defeat its purpose all together). It would be ideal if all states were to surrender a segment of their jurisdictions to an independent international court under the mandate of an international body like the UN in cases where a codified breach of freedom of expression violations has occurred. However, this is hard to envision in today’s political climate in which many nations are far 5 Polly Curtis, ‘What’s wrong with the European court of human rights?’ The Guardian (London, 25 January 2012) <http://www.theguardian.com/ politics/reality-check-with-polly-curtis/2012/jan/25/ european-court-of-human-rights> accessed 22 December 2013 6 W.E. Pomeranz, ‘Uneasy Partners: Russia and the European Court of Human Rights’ [2012] HRB 17 7 Ibid 28

more content to simply ignore criticism or pay fines without making any meaningful changes to their legal systems in cases where abuses of freedom of expression have occurred. Wide parameters protecting freedom of expression through political protest are a hallmark of a healthy democracy. As one source suggests, society is full of unjust hierarchies and the freedom to dissent is crucial in keeping injustices in check.8 Magee recognises the importance of legitimate political associations when he suggests that the Patriot Act and wiretapping in the United States go too far when they equate protest acts with terrorism.9 In practice the benefits of political protest have been obvious. The Ukrainian Orange Revolution 2004 had such widespread participation that a revote in the election was called for, which ultimately resulted in a reversal of the results.10 States like North Korea that do not tolerate such freedom of expression do so out of fear of losing control of the country if they loosen their grips on society. Even in states with decent human rights records, restrictions on political protests should be limited in order to maintain fairness in society and keep corruption in check. Some restrictions on protests are necessary in order to maintain the safety of the general public as well as protecting individuals from being unduly burdened by the protests. In English and American jurisdictions not all speech is permissible at all times in all places.11 For instance, in 8 University of Virginia School of Law, ‘Experts Discuss Parameters of Free Speech a t Law Review Symposium’ <http://www.law.virginia.edu/html/ news/2010_fall/free_speech_panel.htm> accessed 20 December 2013 9 James Magee, Freedom of Expression (1st edition, Greenwood Publishing Group, Westport 2002) 302 10 Adrian Karatnycky, ‘Ukraine’s Orange Revolution’ The New York Times (New York, 12 April 2005)< http://www.nytimes.com/cfr/ international/20050301faessay_v84n2_karatnycky.ht ml?pagewanted=print&position=&_r=2&> accessed 22 December 2013 11 Adam Wagner, ‘“Thank God for Dead Soldiers”

the UK it is an offense to have a demonstration within a kilometre of Parliament Square without authorization.12 This seems reasonable given the inordinate disruption protests could cause in such a sensitive area. Mead also suggests that in the last few decades protestors are increasingly pursuing direct action protests by disrupting the business of companies in order to make political points.13 Although protestors should be able to make political points about governments and even businesses to their detriment, in my opinion they should not have the right to disrupt legitimate business practices by physically preventing businesses from conducting their trade, and the state should have a positive duty to prevent this from happening. As with any large gathering of people the police needs to be present in order to contain potentially volatile situations. Police around the world have effectively employed the so-called “kettling” procedure to prevent violence.14 Although protests need to be judged on a case by case basis I am generally in favour of such police measures if the authorities on the scene deem them necessary. In much of Europe, freedom of expression is protected under Art. 10 of the ECHR. However, such protection can be limited if the protests involve hate speech against racial, ethnic, and religious groups.15 Adam Wagner points out that unlike the UK, in the US hate speech is protected under the first amendment of the US vs. “British soldiers go to hell”’ (UK Human Rights Blog, 3 March 2011)< http://ukhumanrightsblog. com/2011/03/03/%E2%80%9Cthank-god-for-deadsoldiers%E2%80%9D-vs-british-soldiers-go-tohell/> accessed 23 December 2013 12 S Turenne, ‘The compatibility of criminal liability with freedom of expression’ [2007] Crim. L.R. 866 13 D Mead, ‘A chill through the back door? The privatised regulation of peaceful protest’ [2013] PL 100 14 British Broadcasting Corporation, ‘European court says ‘kettling’ tactics in 2001 awful’<http:// www.bbc.co.uk/news/uk17378700> accessed 23 December 2013 15 John Alder, Constitutional and administrative law (8th edition, Macmillan Publishers Limited, Basingstoke 2011)499

constitution, and generally there are only very limited forms of freedom of expression not protected under the first amendment.16 In the US freedom of expression is better protected and has wider parameters than in the UK due to its enshrinement in a written constitution17. Although it can have upsetting consequences such as allowing radicals to protest at funerals, in my opinion, they are outweighed by the benefit of a greater opportunity for unsuppressed expression of beliefs from all strata of society. The US Supreme Court affirmed this by holding that the first amendment extended to protect hurtful speech on public issues to ensure that public debate is not stifled.18

ism’s claim of a “chilling effect” simply an attempt to preserve profits through avoiding liability.21 Perhaps such restraint in matters of libel with regard to journalism is necessary. However, it is clear that more serious breaches such as the recent criminal punishment of a Turkish journalist for criticizing the Prime Minister of Turkey in a way that he found insulting could significantly deter other journalists from similar criticism of the government.22 The dangers of not respecting press freedom can be highlighted by revisiting the example of North Korea in which domestic media is heavily censored and according to reports at least 40 journalists have been sent off to re-education camps since the 1990s for petty errors like misspelling the name of a Finally, one of the most important reasons senior official.23 for creating wide parameters for freedom of expression is to allow journalists to criti- Protecting freedom of expression should cize governments, businesses, and individ- generally be prioritized over the right to uals in order keep the public informed and freedom of religion, except in cases where encourage liberty and fairness in society. members of a religion have some legitiPress freedom in the UK can be restricted mate fear of violence due to the expreswhen the need for it is outweighed by other sions made. The ECtHR has suggested that concepts such as privacy, national security, freedom of expression protects expresprevention of hate speech etc.19 However, sions that shock, offend or disturb, and when the expression concerns political has conceded that members of religious matters wide parameters are imperative majority/minority must tolerate denial by to prevent a chilling effect on publication. others of their beliefs and even propagaAs the ECtHR outlined, a free press allows tion of doctrines hostile to their faith.24 the public to have informed opinions on However, in my opinion it fails this ideal political matters, politicians, and is a core by declaring through case law that expresconcept of a democratic society.20 Jona- sions contrary to religions are not unlimthan Coad argues for restraint in English ited in that provocative portrayals or critilibel lawsuits as libel injunctions are cisms of sacred figures may be prohibited. almost unobtainable, rendering journal- As Niraj Nathwani suggests this leaves little room for shock, offence or distur16 Adam Wagner, ‘“Thank God for Dead Soldiers” vs. “British soldiers go to hell”’ (UK Human Rights Blog, 3 March 2011)< http://ukhumanrightsblog. com/2011/03/03/%E2%80%9Cthank-god-for-deadsoldiers%E2%80%9D-vs-british-soldiers-go-tohell/> accessed 23 December 2013 17 B Allen, ‘Freedom of expression and the protection of public morals in the United Kingdom and the United States’ [2003] CLJ 16 18 A Bailin, ‘Criminalising free speech?’ [2011] Crim L R 705 19 John Alder, Constitutional and administrative law (8th edition, Macmillan Publishers Limited, Basingstoke 2011) 486 20 Lingens v Austria (1986) 8 E.H.R.R. 407

21 J Coad, ‘Reynolds and public interest - what about truth and human rights?’ [2007] Ent L R 75 22 Organization for Security and Co-operation in Europe, ‘Criminal punishment for critical journalism has chilling effect on free speech in Turkey, says OSCE media freedom representative’<http://www. osce.org/fom/103749> accessed 23 December 2013 23 Pippa Norris, Public Sentinel: News Media & Governance Reform(1st edition, The World Bank, Washington, D.C. 2010) 366 24 A Sherlock, ‘Freedom of expression: how far should it go?’ [1995] E.L. Rev. 329

bance with regard to the religious sphere.25 Freedom of expression would be rather pointless if it only protected the dominant views of societies.26 The right to shock or offend through freedom of expression is important to prevent a chilling effect, and since what is offensive is subjective it is better to protect controversial non-violent expression to avoid stifling it entirely. 27 In my opinion, this subjectivity is also likely to lead to inconsistencies in restraints on expression. In America it is generally impermissible to restrict the content of expression as it is subject to only a few exceptions.28 Nathwani makes a compelling argument for the more open American model through reference to a landmark New York case in which it was held that the government had no legitimate right to protect religious doctrines from attacks or views distasteful to them, and went on to say that it was difficult to understand why somebody should be able to project their ideas of sacredness on others and demand respect for them.29 While individuals should be free to express their belief in any religious doctrine without fear of violence, this right cannot be used to curtail legitimate expression (which does not encourage violence) that criticizes or even distastefully ridicules any element of that religion. Limiting freedom of expression that incites violence or is likely to create racial 25 N. Nathwani, ‘Religious cartoons and human rights - a critical legal analysis of the case law of the European Court of Human Rights on the protection of religious feelings and its implications in the Danish affair concerning cartoons of the Prophet Muhammad’ [2008] E.H.R.L.R. 488 26 Ibid 27 Ibid 28 United States Embassy, ‘Freedom of Expression in the United States’< http://iipdigital.usembassy. gov/st/english/pamphlet/2013/04/20130416145829. html#axzz2ppVOkgbE> accessed 27 December 2013 29 N. Nathwani, ‘Religious cartoons and human rights - a critical legal analysis of the case law of the European Court of Human Rights on the protection of religious feelings and its implications in the Danish affair concerning cartoons of the Prophet Muhammad’ [2008] E.H.R.L.R. 488 29

Ebor Lex

June 2014

Setting the parameters for freedom of expression is an inherently complicated task

Political freedom is a prerequisite to freedom of expression

hatred that might result in violence is necessary, perhaps especially in multicultural societies. The libertarian view that even offensive racist expression should not be curtailed if it is non-violent in nature and does not exclude members of society from enjoying their other basic human rights, could be sustainable in the most mature democracies but not universally. Garry Slapper advocates legal constraints preventing people from inciting racial hatred. He draws a distinction between inciting racial hatred and ridiculing religions in that people cannot choose their race whereas they can choose their ideas. 30 However, he also claims offensive incendiary remarks will wilt under public scrutiny rather than having to be curtailed through law, and society will most successfully develop and progress by allowing ideas to be subject to public debate.31 I think this alternative would hold true in most mature western democracies where ideas of equality and fairness are so ingrained in 30 G. Slapper, ‘The legality of assaulting ideas’ [2007] J. Crim. L. 279 31 Ibid 30

society. However, I am not sure the same would follow where institutions are not as steadfast. In fact, Slapper himself even references how the law offered no protection from racism which was commonplace in Britain prior to the social revolutions of the 20th century. 32 In my opinion, Slapper’s argument that social progress can best be made through subjecting controversial ideas to debate has held true in recent years in the United States. I think this can be illustrated through the recent controversy surrounding Food Network host Paula Deen, whose racist remarks caused such a social backlash throughout society that ultimately they resulted in her formerly popular show being cancelled.33 This illustrates that US mainstream society now rejects overt racism thus creating a sense of self-cen32 Ibid 33 Julia Moskin, ‘Food Network Drops Paula Deen’ The New York Times (New York, 21 June 2013) < http://www.nytimes.com/2013/06/22/dining/pauladeen-is-a-no-show-on-today.html?_r=1&> accessed 28 December 2013

sorship by society through public debate rather than law. However, when society cannot censor those who are uninfluenced by its condemnation the law will not protect their victims as can be witnessed by the Supreme Court dismissing convictions against racism, cross-burning, and even neo-Nazi activity as unconstitutional34. Political freedom is a prerequisite to freedom of expression. Therefore, even an extremist political agenda should not be censored if it does not threaten democracy itself or propose violence. Free political expression is not possible without a plurality of political parties representing all the different opinions within a country. Their existence is what allows for political debate, which is a core concept for democratic society.35 However, as Tanja Venisik contends extremist political parties of a nationalist nature often tend to under34 I. Hare, ‘Inflammatory speech: cross-burning and the First Amendment’ [2003] P.L. 408 35 J Vidmar, ‘Multiparty democracy: international and European human rights law perspectives’ [2010] L.J.I.L. 209

mine other fundamental values of democracy through intimidation and threats (especially against minorities), which should result in them being banned.36 On the other hand, she also recognizes that banning can in some cases be fruitless and even result in further radicalization or increased violence.37 Furthermore, states often use the limitations and prohibitions of political parties to suppress minorities from legitimately promoting their own interests or culture.38 There are no easy answers but I believe democratic governments should overtly attempt to restrain or even ban political parties that threaten the rights of minorities because they do not respect democracy and the freedom of expression that it creates.

pression is an inherently complicated task, fraught with the complex issues of weighing the worth of the expression against other equally important human rights. This is further complicated by globalization since the international community is increasingly involved in setting the standards for human rights. It is difficult for the world community to set the standards for freedom of expression and enforce them because of nations that have not embraced the democratic system. However, for those nations capable of having this debate, I believe it is obvious that in order for the democratic institutions of countries to be maintained, lenient parameters must be in place to protect freedom of expression. In order to maintain an informed society that respects a spectrum of different political Setting the parameters for freedom of ex- positions it is of paramount importance to 36 Tanja Venisnik, ‘European Court of Human be mindful of this leniency with respect to the rights of journalists and individuals to Rights upholds the ban on Hungarian Guard’ (Minority Rights Group International, 23 July 2013)< associate in groups and engage in political http://minorityrights.wordpress.com/2013/07/23/ protest. Some of the most common restriceuropean-court-of-human-rights-upholds-the-bantions on freedom of expression involve on-hungarian-guard/> accessed 2 January 2014 the topics of religion, race, and political 37 Ibid

opinion. All three topics are explosive issues which when let loose could infringe on the human rights of others and could even threaten democracy itself. I would contend that restrictions should centre on being able to criticize, condemn, or even ridicule someone’s system of beliefs but not a physical trait such as race, since individuals cannot chose a race while they can chose a system of beliefs. However, in my opinion the law should draw the line at expression which encourages violence or widespread hatred which is likely to lead to it. More holistically, freedom of expression necessitates democracy which in turn allows for freedom of expression. In order to protect the existence of a democratic nation it is essential to maintain the widest possible parameters for freedom of expression. Therefore, freedom of expression should only be curtailed when it threatens the ideals and continuity of the democratic system.

38 Ibid

Ebor Lex

June 2014

Smashing Sexism: The Trajectory of Gender Inequality and Reform law with effect, in fact, in employment cases, judges will not force defendants to Societies have all been said to be authorihonour their contracts; they will distance tarian in construct, so it is no surprise that the law from becoming slave drivers.10 society before c.1750 as well as after were By this I mean that possession of body distinctly patriarchal.1 Authority, in the is a facet of law that has been completely past and to some extent now, extending discarded. This demonstrates that the law back to the most primal stages of humanwill develop and discard aspects that are ity relied on the physical strength of men deemed ‘bad’ or antiquated by the current as a gauge to dominance and authority.2 social conscious. Consequently, placing oneself on the ‘trajectory’ facilitates the It was from this initial difference between likelihood of embracing legal and social men and women that foreshadowed the As Tosh correctly states, situating oneself change. gender inequality that would last even in an unfolding trajectory gives ‘us some till this day. As civilisation developed purchase on the future and allows a Firstly, this paper will examine the inmen created structures and institutions measure of forward planning.’6 Thus it is equality and reform of women in marriage that were extensions of the individual pa- extremely beneficial for the study of law and sexual matters. As has been mentriarchy that occurred in each home; in to consider its evolutionary nature, as tioned beforehand, the legal doctrine of each marriage. 3 Examples of this include with all social sciences. In particular, the coverture represented and women becomthe feudal hierarchy that oppressed not study of the law and history surrounding ing one by Blackstone; however, 11 in reality only women, but the poor and destitute, women and gender inequality, helps us the woman surrendered all rights. This was enshrining patriarchal strength effective enslavement and would in a virtually irrefutable system. woman in their nature were sexually spell much change as the epoch of However, the decline of feudalism industrial revolution approached.12 deviant, which demanded for husbands in c.1600, replaced by mercantile The philosophical reasoning to exert absolute control over them capitalism initiated a quasi -renaisbehind coverture was based upon sance, where individual autonomy a perspective that women lacked and equality became ideas more powerful to understand the practices of the past, the rationality to be individuals, and thus than the feudalism of old. Philosophers how developments have been made and needed men’s guidance to maintain civil such as Locke and Mill contended that the whether the same patterns will occur in order.13 Rousseau, for instance, advofreedom and equality of man are natural the future.7 An example of the aforemen- cated this belief while also maintaining states of all humanity.4 This contravention tioned ‘trajectory’ method for the study of that woman in their nature were sexually of Aristotle’s and other great Greek phi- history being beneficial in terms of law is deviant, which demanded for husbands to losopher’s theory of biological inferiority the former common law of coverture. His- exert absolute control over them for the caused women to feel argumentative for torically, marriage signified the oblitera- purpose of preventing civil unrest.14 In the the first time against inequality.5 In c.1700, tion of women’s legal personality, giving 19th century, this was view was articulated Mary Astell, developed Locke’s assertion: her husband absolute control of both her in the Contagious Diseases Act 1864, in 89 1 J.A.G Griffith, ‘The Political Constitution ‘ [1979] property and her person. This law is now 10 E. Mckendrick, Contract Law (10th, Palgrave completely defunct in terms of property Macmillan, UK 2013) MLR 1, 21

Xavier Peluso

2 Aristotle , The Politics (1st, Penguin, UK 1981) 3 S. Fredman, Women and the Law (2nd, OUP, Oxford 1997) 4 Stanford Encyclopedia of Philosophy, ‘Locke’s Political Philosophy’ (http://plato.stanford.edu/ 2014) <http://plato.stanford.edu/entries/locke-political/> accessed 12/04/2014 5 Aristotle, History of Animals (2nd, Harvard University Press, US 1965) 32

‘If all men are born free, why are women born slaves? If absolute sovereignty be not necessary in a state, how comes it to be so in family.’ This liberal feminism had great significance in empowering women to believe themselves equal to their husbands. Though not changing much, if anything in statute, liberal feminism began to erode the clutches of men; despite being far from real change, all journeys have a beginning - a trajectory.

6 J. Tosh, The Pursuit of History (2nd, Pearson, Great Britain 2010) 7 Ibid n 6 8 B. A. Brown, A. E. Freedman, H. N. Katz & A. M. Price, Women’s Rights and the Law (1st, Praeger Special Studies, US 1977) 9 Sir W. Blackstone, Commentaries on the Laws of England (1765-1769)

11 Blackstone (n 9) 12 The National Archives, ‘Emmeline Pankhurst Letter’ (http://www.nationalarchives.gov.uk/ 2014) <http://www.nationalarchives.gov.uk/documents/ education/suffragettes.pdf> accessed 14/04/2014 13 Aristotle (n 2) 14 Jean-Jacques Rousseau as cited in S. Fredman, Women and the Law (2nd, OUP, Oxford 1997)

Ebor Lex which the spread of venereal diseases was used as a façade to implement intrusive and punitive measures against women15 16. Under this Act, a woman could not refuse medical examination for any venereal disease. Any women could be branded a prostitute and ordered to undergo fortnightly examinations, if found to possess a venereal disease; said woman could be imprisioned in hospital for up to nine months.17. The female body, not bacteria and infection, was blamed for this smite to men. In effect, by placing all women who had what we now call sexually transmitted diseases and infections in hospital for nine months, the health of men was being protected at the cost of women’s rights.18 This was a shameful reflection on the sexual deviancy of men in Victorian Britain.

Property rights, as described by Locke, are imperative - something all men and women are entitled too, and are such that define one’s existence as autonomous

in the slow liberating process from the shackles of men. However, this continuance of legislated developments for equality within marriages first commenced with the Matrimonial Causes Act 1857. 23 The Matrimonial Causes Act removed the litigation from the ecclesiastical to civil court’s jurisdiction. Thus the model of marriage changed from a sacrament that could not be undone, unless through special measures of annulment, to divorce becoming a mere practicality of English Law. The Court of Divorce and Matrimonial Causes had jurisdiction to decide civil actions for divorce. The effects of this Act did not truly show until the late 20thearly 21st century. Though women could divorce their husbands, the world was still highly patriarchal, in terms of economics. It was still not viable for a women to divorce when it would be more difficult to provide for themselves. Furthermore, women could now divorce if their husband’s committed adultery, though an aggravating factor of rape or physical abuse would have been needed. What is important to mention here, is that although stipulated by policy, the social culture would take a long time to assimilate where divorce would be acceptable in the minds of a Christian Britain.24 The subsequent Matrimonial Causes Acts 1857 to 1878 provided the foundations for divorces that could occur in times where women were more financially enabled to do so. At the time the aforementioned legislation was mainly beneficial as an indicator to educated women that equality or at least a more equal society were on the horizon. Therefore, the relevance of these acts, transferring divorce into the secular domain and so increasing the accessibility of divorce, is a relevant trigger in the trajectory of the decreasing gender inequalities. Placing oneself in the trajectory of gender inequality in Britain with analysis of these acts can help us to understand why our society is like it is today, as well as what it will be like in the future.25

The slow transfer of rights to women in terms of marriage and property rights could only begin when coverture had been eroded in English law. This erosion began with the Married Women’s Property Act 1870 which, under pressure from Industrialised British Society, gave married women the right to be legal owners of the money they earned and to be held apart from their husband.19 Also, the right to inherit property was granted.20 Despite this Act being of huge significance in furthering the cause of equality for women, especially in the case of the original unequal relationship that is marriage, the Act did allow the loophole for the husband to retain control of the property owned by a woman prior to marriage. This act was the first real legislated change in women’s legal position. The technique of legislating for what occurred in the marriage situation was a long term solution to inequality. Essentially, the marital relationship was the original patriarchal stronghold; the destruction of this, although a slow process, would yield a more complete equality overall. The amended 1874 Act and the Married Women’s Property Act built upon the foundations laid down by the 1857 Act.2122 Property rights, as described by Locke, are imperative - something all men and women are entitled too, and The subsequent matrimonial causes act are such that define one’s existence as au- in 1923 placed men and women as equal tonomous. This Act was thus significant in marriage for the first time. The specific enabling of the act was that either spouse could petition the court for a divorce 15 The Contagious Diseases Act 1864 s (1) 16 Aristotle (n 5) on the basis of their spouse’s adultery.26 17 The Contagious Diseases Act 1864 s (1) 18 The Contagious Diseases Act 1864 s (1) 19 The Married Women’s Property Act 1870 s. 1 20 The Married Women’s Property Act 1870 s. 7 21 The Married Women’s Property Act 1874 , (Amended Act ) 22 The Married Women’s Property Act 1882

June 2014

23 The Matrimonial Causes Act 1857 24 Ronald Inglehart & Pippa Norris , ‘Rising Tide: Gender Equality & Cultural Change around the World ‘ [2002] Harv. L. Rev 25 Blackstone (n 9) 26 Matrimonial Causes Act 1923

There was no longer need for proof of aggravating factors. The equalising of women’s and men’s rights in marriage had come a long way from the law of coverture where a woman was an item of personal property under marriage. Yet there was still only one ground for divorce, adultery. This was remedied in the Matrimonial Causes Act 1937, where it became possible to divorce on grounds of cruelty, desertion and incurable insanity. 27 The gender equality that was now being legislated for in the Matrimonial Causes Acts was a reflection of society, the social movement of WWI; furthermore, the strain of war prioritised divorce as a social instrument to which citizens regarded as a necessity in some cases. Divorce had initially preempted social change and an increase in gender equality, yet now divorce legislation had provided equality for men and women. The only agenda of later divorce related acts were to add more grounds for divorce, and similar technicalities, as well as to increase accessibility. This paper will now explore and analyse the political gender inequality that occurred c.1600 to the present day. This chapter will focus upon the role of the women’s suffrage movement in obtaining the female vote, and the women who led this campaign and other related movements. Furthermore, this chapter will discuss the women’s employment rights, as these were absorbed into political rights by the suffragettes, and the development made were closely aligned to political developments. As the Married Women’s Property Act and the subsequent Matrimonial Causes Act caused a more equal society as a bottom up solution from the microcosm of the family, the suffrage movement caused for a top down solution for the macrocosm of society. The patriarchal family structure had been abolished in law - the next stage of the equalising process was for the patriarchal society to be corrected.28 This was the fundamental aim of the Women’s Suffrage movement.29 The London Society for Women’s Suffrage formed in 1867, as a direct consequence of the Matrimonial Causes Act 1857. This was the first time an organised female group was created with the intention of lobbying for political and social reform. In spite of this, the first actions of women’s groups around the nation were to affect employment ine27 Ibid 28 Fredman (n 3) 29 Ibid

quality. Clementina Black, the secretary of the Women’s Trade Union League, secured the first equal pay resolution at the Trades Union Congress in 1888. This event was imperative to equality, as many women at the time such as Pankhurst and Wollstonecraft realised the importance of equal economics30 in its contribution to wider social equality. Furthermore, this inspired women to challenge the employment they were subject to. Also in 1888, 1400 women at a Bryant and May match factory went on strike, challenging the poor pay wages they received and the dangerous conditions. This turned out to be somewhat symbolic as opposed to generating actual change, as inequality of pay remains contentious. These first cases of civil unrest established a basis for women to challenge the patriarchy and essentially began the women’s rights movement. It was only in 1902 that the first call for the women’s vote occurred, where a delegation of women textile workers presented a petition, signed by 37,000 to Parliament. It was only in the next year where the renowned campaigner, and mother of the suffrage movement, Pankhurst founded the Women’s Social and Political Union. This group, which would eventually secure the female vote in 1928, initially used non-violent militancy to gain attention.31 Pankhurst realised the efficacy of militancy in gaining attention, “We are at last recognized as a political party; we are now in the swim of politics, and are a political force.”32 This statement revealed the irresistible nature of her campaigning, as well as the excitement felt by women for the first time to be recognised as an organisation, political in nature. The momentum Pankhurst created gave women the opportunity to enter into political involvement, albeit only in borough and country councils. The Qualification of Women (County and Borough Councils) Act 1907 allowed the election women to the aforementioned councils, clarifying a right that had become confused when education boards had merged with local councils.33 In the words of LP Hartley, “the past is a foreign country,” the dawn

These first cases of civil unrest established a basis for women to challenge the patriarchy and essentially began the women’s rights movement

30 Ibid 31 J Purvis, Emmeline Pankhurst: A Biography (Women’s & Gender History)(1st, Routledge, UK 2003) 32 National Office of Statistics, ‘Public Gathering Statistics’ (http://www.statistics.gov.uk/ 2014) <http://www.statistics.gov.uk/hub/index.html> accessed 12/04/2014 33 Qualification of Women ( County and Borough Councils) Act 1907 35

Ebor Lex

June 2014

of women was nigh.34 There are numerous trajectories that could be predicted from the events up to 1907; however, the period leading up to and after the First World War maintained the universal atmosphere of freedom and equality that was rising in 1907. It was in the early 20th century that oppressed nations and groups of people, whether that be the citizens of India or British Women, began to rise from the their historic repression. The trajectory of worldwide inequality has decreased ever since this point but has not yet reached the end of its path.

ent nature. Equality it seems is cultural as In my opinion, This Act44 is the defining much as legislated. event in all gender equality history. There is no greater freedom in a democratic The result of the suffrage movement’s in- society than the right to vote – to be pocessant pressure was first seen in 1920, litically active in selecting the political when the bars to professions such as law leader of the nation. Yes, after 1928 and and accountancy were lifted due to the Sex to the present day, many events occurred Discrimination Removal Act 1920.40 This in order to refine gender equality, but the employment equality eroded centuries of Equal Franchise act was the end of a traphilosophical material that lauded women jectory in itself; it was the proverbial brick as intellectually inferior to men. Despite smashing the window. What goes on today this, a culture of gender equality seems to and will continue into the future is the easy remain beyond contemporary society. The route for the brick, from the window to the legal profession exemplifies this, where in floor. early 2013, Baroness Hale condemned the The period from 1908 to 1928 manifest- British Legal profession for not hiring tal- Ergo, the analysis of the laws of gender ineed women’s empowerment. In terms of ented women in senior positions, blaming quality from a historical perspective, whilst campaigning, 250,000 people took part it on a culture of ‘unconscious sexism’.41 placing oneself in the ‘trajectory’ that is in a protest in Hyde Park in support of As well as this, a Council of Europe report still unfolding, is extremely beneficial for women’s suffrage.35 Such a large amount of suggested that Britain was the worst for the study of law and the understanding of people exemplifies that social values were employing female judges.42 This conveys cause and effect. The use of primary and changing in support of gender equality. To that legislative changes can only benefit secondary sources allows for a complete the extent that in 1912, the government causes such as equality to a limited extent. historical analysis of gender inequality, allowed the release of female prisoners Often the extent tends to be somewhere allowing for the contextual exploration who were on hunger strike until they were where cultural and value changes have to of differing political and social views. In well enough to be taken back into prison.36 be made in order for true equality to be terms of the gender equality from c.1750, This conveys the growing sympathy patri- gained in the minds of those individuals it is the belief of this author that equality archal structures were beginning to have in society. However, one’s rights before the is as difficult to define, as it is problematic for the gender equality. What could not law tend to be the most persuasive of enti- to find. By definition, equality requires be predicted is the effect of the end of the ties. two differing things; reform within legisWWI on the Suffragette’s cause. Specificallature and social consciousness. The 1928 ly, the Parliamentary QualiAct placed women in their Despite this, a culture of gender equality seems rightful place as independfication of Women Act 1918 that enabled women over 21 ent beings, equal to men in to remain beyond contemporary society. to stand for Parliament, and every way – it was not just the Representation of the People Act 1918 Property has been a central issue in gender an egalitarian example of reform. Rather, allowed women over 30 to vote.37,38 These equality ever since the doctrine of cover- the 1928 Act was confirmation that as legislated stipulations did not give complete ture placed women as the personal prop- civilised humanity we have an ideal, far universal access to the vote; however, this erty of their husbands. Hence, in 1922, The greater than any petty equality. That is for was not hugely problematic as there were Law of Property act stipulated that both freedom, for liberty, for an autonomy that regular concessions to the women’s pleads man and woman (husband and wife) could does not cause one to have to be enslaved until the vote was eventually granted in inherit property equally.43 Such equality in by another simply for the purposes of pa1928. After 1918 and the aforementioned property law reform, the most established triarchy. In spite of this, legislation cannot Act, the Suffrage movement continuously laws, shows the willingness of the executive change the minds of society, the inherlobbied for the complete and unmitigated and legislature to prioritise equal rights for ent, unspoken notions. Social values have right to vote. Female MPs in 2014 feel as both genders, and reveals the transforma- been changing ever since that that day in if the ‘Prime Minister’s Question’ is an en- tion of social values from a time of owner- 1928. Notwithstanding these examples of vironment where sexism comes into play ship of women to their equal rights. inequality and unfairness in employment, due to the rowdy, ‘testosterone nature’39 of with each passing year the voyage to equalthe forum. Many women feel disheartened Finally, in 1928 women in Britain were ity is drawing ever closer to an end. It may after attending the Prime Minister’s Ques- granted equal suffrage. The Equal Fran- be a century from now, but I would submit tions; a vital instrument of democratic ac- chise Act of 1928 increased voting eligibil- that there is no greater reform than the countability. Minister of Parliament Sarah ity by approximately 15 million women. Equal Franchise Act 1928; a truly just Act, Champion, said that she actively avoids the very definition of justice. the Questions due to their rowdy, belliger34 LP Hartley, as cited in J. Tosh, The Pursuit of History (2nd, Pearson, Great Britain 2010) 35 National Office of Statistics ( n 36) 36 Chris Mason & Thomas Edgington, ‘Female MPs shunning PMQs, says John Bercow’ (www.bbc. co.uk 2014) <http://www.bbc.co.uk/news/uk-politics-27062577> accessed 18/04/2014 37 The Parliamentary Qualification of Women Act 1918 38 Representation of the People Act 1918 39 Mason (n 37) 36

40 The Sex Discrimination Removal Act 1920 41 Louisa Peacock, ‘Law firms have ‘unconscious bias’ that stops women from getting promoted, says senior City lawyer’ (www.telegraph.co.uk 2013) <Law firms have ‘unconscious bias’ that stops women from getting promoted, says senior City lawyer> accessed 10/04/2014 42 The Council of Europe, ‘Analysis of European Legal Systems’ (www.coe.int 2014) <http://www. coe.int/t/dghl/cooperation/cepej/evaluation/2012/ Rapport_en.pdf> accessed 8/04/2014 43 The Law of Property Act 1922

The Equal Franchise Act 1928

A crictical comparison of the capacity of criminal trials and truth commissions to deal with the gender dimension of post conflict justice

Scott Halliday

he way in which a post conflict society addresses gross human rights abuses as part of its transition to democracy is a complex political question. However, Transitional Justice (TJ) mechanisms seek to provide a framework in which societies can successfully recognise past abuses and democratise.

This essay will concentrate on two of these mechanisms, criminal trials and Truth Commissions (TC), critically comparing the ability of each to address the gender dimension of post conflict justice. With the term ‘post conflict justice’ encompassing a range of different issues, this essay will focus on these mechanisms ability to ensure post conflict justice for women in relation to sexual violence. Firstly, the case in favour of trials as the most suitable mechanism is set out. Those in favour attach huge significance to the need for retributive justice through imprisonment, such punishment regarded as an essential part of recognising the past and success-

fully transitioning in the future. However, secondly, drawing on the experiences of the International Criminal Tribunal for Yugoslavia (ICTY), the downfall of trials is highlighted with the process often traumatic and lacking the capacity to ensure women can talk about their experiences. Accordingly, thirdly, the potential of TC as an alternative is highlighted. Drawing on the hugely influential South African Truth and Reconciliation Commission (SA TRC), it is shown how TC have the potential to ensure women express their own personal narrative. However, to do so the mandate establishing a TC must acknowledge the true extent of the viola37

Ebor Lex

June 2014 en’s narratives, their sole purpose being to discredit the validity of witness accounts and stress inconsistencies.12 For example, in the Kunarac et al. case during crossexamination defence counsel asked a series of questions about an incident where the witness was said to have been raped. During this series of questions the witness not only had to re-live the trauma associated with the event, but had to counter the suggestion from defence counsel that as a consequence of sexually stimulating the defendant she was complicit in the sex which followed.

tions faced by women. From this perspective ultimately a conclusion is reached that neither mechanism genuinely satisfies the gender dimension of post conflict justice. Both trails and TC address sexual violence within the confines of a set slice of time. But, sexual violence is often a longstanding injustice, with TJ mechanisms lacking the capacity to genuinely transform the experiences of women. The case for trials In post conflict societies transitioning towards democracy there is a need to hold past perpetrators of gross human rights abuses to account. There is debate as to what is the most suitable way to do this, but according to Mendez justice dictates ‘the appropriate response [to be] criminal prosecutions’.1 Those who advance such claims attach significance to classical juridical methods of justice, with emphasis on fair procedure, recognition of violations suffered and suitable punishment upon conviction.2 From this perspective one of the most important features of a criminal trial is that prosecution ensures individual accountability, this criminal accountability resulting in the punishment of perpetrators through criminal sanctions (…). 3To be clear it is this punishment which ensures retributive justice for those who have suffered during conflict, this of fundamental importance when acknowledging the gravity of the atrocities committed. Additionally, successful prosecutions ensure perpetrators are not at liberty to commit further atrocity. These are incredibly valuable aspects of embarking on criminal trials in a post conflict society. But, from a specifically gendered perspective it is not enough to evaluate the mechanism solely through its end product of punishment through imprisonment. To do so would be to ignore the importance of adversarial processes which involve women directly in criminal trials. The structure of adversarial justice demands prosecution and defence lawyers zealously defend their client’s interests to establish whether the accused is criminally liable.4From the perspective of the accused the adversarial nature of trials ensures passionate defence, with counsel 1 J Mendez, Taking a Stand: The Evolution of Human Rights (1st, Palgrave Macmillan, Oxford 2011) 138 2 K Campbell, ‘The Trauma of Justice: Sexual Violence, Crimes Against Humanity and The International Criminal Tribunal for the Former Yugoslavia’ [2004] SLS 329, 337 3 K.M Pratt, L.E Fletcher, ‘Time for Justice: The Case for International Prosecutions of Rape and Gender-Based Violence in the Former Yugoslavia’ [1994] BWLJ 77 4 T Dare, ‘Mere-Zeal, Hyper-Zeal and the Ethical Obligations of Lawyers’ [2004] LE 24, 30 38

Q. Does that mean you had to put his penis into your mouth? A. Yes. Q. And when he had an erection, what did he do then? Did he rape you vaginally? A. No. I don’t remember. Q. Before this happened, did you see him talk with Klanfa? A. I don’t remember. Q. You said he forced you to excite him. What do you mean by “force”? able to rigorously test the validity of evidence through cross-examination. With successful prosecution often resulting in long-term imprisonment the zealous nature of adversarialism is said to be the best method to establish the relevant facts to determine legal accountability.5 Therefore, International Criminal Tribunals (ICT) involving sexual violence serve the interests of women survivors, provided that the correct procedural rules are abided by and adequate protection is offered.6 For example, trials are to the benefit of women if at all times during cross-examination judges are empowered to curtail questions which border on harassment. In this regard the zealous nature of advocacy in trials is acknowledged to require limitations to respect witnesses involved in the process. However, even with adequate safeguards a tension remains between trial 5 R Wasserstrom, ‘Lawyers as Professionals: Some Moral Issues’ [1975] HR 1, 10 B McGonigle Leyh, Procedural Justice- Victim Participation in International Criminal Proceedings (1st, Intersentia Ltd, Cambridge 2011) 74, 75 6 Pratt, K.M, Fletcher, L.E, ‘Time for Justice: The Case for International Prosecutions of Rape and Gender-Based Violence in the Former Yugoslavia’ [1994] BWLJ 77, 102; J Mertus, ‘Shouting from the Bottom of the Well – The Impact of International Trials for Wartime Rape on Women’s Agency’ [2004] IFJP 110, 112

procedures and the interests of survivor witnesses. The models of justice emphasised by advocates of trials assumes that law institutes justice.7 But, critical assessment of the trial process raises doubt as to the extent to which traditional legal proceedings can ensure post conflict justice in sexual violence cases.8 It cannot be denied that the adversarial process is what makes criminal trials a potential valuable mechanism to deal with abuses in a post conflict environment. The fierce contestation and potential for criminal sanctions is of great value in ensuring both sides aggressively argue their case. But, this process is also its greatest downfall as it presumes justice to be achieved through an adversarial trial focussed on retribution, largely ignoring the implications for witnesses who are involved in the trial. The downfall of trials An integral feature of the trial process is hearing testimony from women who claim to have been sexually violated during a period of conflict. In the ICTY many sur7 K Campbell, ‘The Trauma of Justice: Sexual Violence, Crimes Against Humanity and The International Criminal Tribunal for the Former Yugoslavia’ [2004] SLS 329, 340 8 C Bell, C O’Rourke, ‘Does Feminism Need a Theory of Transitional Justice? An Introductory Essay’ [2007] IJTJ 23, 26

vivors who testified believed that giving testimony would be a signal of political agency, helping them to heal and move forward.9 However, in reality during the ICTY many women witnesses giving testimony were emotionally fragile and overwhelmed by the nature of the tribunal, feeling cheated and humiliated in the aftermath.10 Even when women were questioned by the prosecution, their own legal representatives, they were expected to relive the trauma and answer very specific condensed questions. The consequence of this was that it left little space for women to truly express their own narrative. In the Kunarac et al. (IT-96-23 & 23/1) case prosecution counsel truncated questions to fit a legal-narrative, this most conducive to ensuring successful prosecution.11 To be clear with conviction the mark of success there was no importance attached to any other details than those of relevance to establishing legal accountability. In this sense the entire purpose of the examination was 9 Mertus, J, ‘Shouting from the Bottom of the Well – The Impact of International Trials for Wartime Rape on Women’s Agency’ [2004] IFJP 110, 111 10 P Wald, ‘The International Criminal Tribunal for the Former Yugoslavia Comes of Age: Some Observations on Day-To-Day Dilemmas of an International Court’ [2001] WUJLP 87, 109 11 Mertus, J, ‘Shouting from the Bottom of the Well – The Impact of International Trials for Wartime Rape on Women’s Agency’ [2004] IFJP 110

to create a legal narrative in keeping with what was necessary to satisfy the burden of proof. The result of this was often a speedy question-and-answer format with women expected to re-live the trauma of the experience in a few words before a new topic was introduced. Q. Can you describe what he did? A. He pushed me onto one of the beds. He asked me to put his penis into my mouth

A. Well, that I had to -- I don’t know how to explain this. Q. Did he threaten you or did he point a gun at you? A. No. No. He just said that he couldn’t get an erection after everything. And then I had to use my hand and mouth to stimulate him so that he could get an erection to rape me. (Kunarac et al. case, 30 March 2000, pp. 1451-2)

This type of discrediting of witnesses is common in all adversarial trials. Therefore, far from providing women with a A. He did it himself platform, adversarial courtroom culture disempowers and silences women.13 With Q. How long did that last? zealous cross-examination in place to reA. I don’t know duce the potential of wrongful conviction, one can at least appreciate why the (Kunarac et al. case, 29 March 2000, traumatic experiences of witnesses has pp.1243) Q. And did he do it?

This type of questioning forces witnesses to re-live the trauma suffered without any freedom to go into further detail, but at least it is asked solely with the intention of ensuring the suspected perpetrator is punished. The same cannot be said in crossexamination where advocates rigorously deconstruct witness accounts. To be clear defence lawyers have no interest is wom-

12 M Walsh, ‘Gendering International Justice – Progress and Pitfalls at International Criminal Tribunals’ in D Pankhurst (eds), Gendered Peace- Women’s Struggles for Post-War Justice and Reconciliation (1st, Routledge, 2008). 46; Mertus, J, ‘Shouting from the Bottom of the Well – The Impact of International Trials for Wartime Rape on Women’s Agency’ [2004] IFJP 110, 119 13 A E Taslitz, Rape and the Culture of the Courtroom (1st, New York University Press, New York 1999) 39

Ebor Lex

The fundamental difference between trials and TC is the primary focus on survivors, with TC testimonies having the potential to give women an opportunity to express their personal experiences

not rendered the trial process completely obsolete.14 But, the re-traumatising and humiliating effect of courtroom culture upon women survivors unquestionably devalues trials as a mechanism to achieve justice from a gendered perspective. To be clear adversarial processes largely disregard the experiences of survivors giving evidence in trials. Consequently, TC are advanced as an alternative to adversarial trials, with the fundamental difference between these mechanisms ‘the nature and extent of their attention to victims’.15 With trials failing to appreciate the importance of a personal narrative, the more therapeutic model of justice captured through truth telling offers a compelling alternative to ensure post conflict justice for women.

testimonies, but the process was notably different to criminal trials with its series of quick and short questions and answers. The importance of this process should not be underestimated as from a therapeutic justice perspective it is ultimately the positive experience of giving testimony which is imperative to survivor empowerment and moving forward.18 The sense that women were in control of the process was also reaffirmed when often following a series of questions from the chairperson women were given a further opportunity to tell their story before the end of the testimony.

The potential of truth commissions

MS JOKAZI: Yes, there is something

The fundamental difference between trials and TC is the primary focus on survivors, with TC testimonies having the potential to give women an opportunity to express their personal experiences. From this perspective TC have an entirely different focus to trials, seeking not as their primary goal the punishment of perpetrators, instead concentrating on reconciliation and healing by moving away from the somewhat masculine notions of crime and punishment.16 This was evident in the hugely influential SA TRC which, after strong civil society pressure, established a series of special women’s hearings aimed at creating space for women to speak about their experiences during apartheid.17 Indeed, looking at the transcripts there is a consistent style, with the committee chairperson repeatedly stressing how giving testimony was an opportunity for participating women to share their story. CHAIRPERSON: ‘Mrs Jokazi, thank you very much for coming to the Commission today to share your story…’ (Deborah Vuyelwa Jokazi, SA TRC Special Women’s Hearings, 28 July 1997) Another noticeable feature in many testimonies was the way in which women were largely allowed to tell their story free from interventions. Granted, there were interventions from the chairperson in most 14 C Pegorier, ‘Denial, impunity and Transitional Justice – the fate of female rape victims in Bosnia and Herzegovina’ in L Yarwood (eds), Women and Transitional Justice – The Experience of Women as Participants (1st, Routledge, London 2013). 134 15 P Hayner, Unspeakable truths: facing the challenge of truth commissions(1st, Routledge, London 2002) 28 16 C Bell, C O’Rourke, ‘Does Feminism Need a Theory of Transitional Justice? An Introductory Essay’ [2007] IJTJ 23, 46 17 B Goldblatt, S Meinties, ‘Dealing with the Aftermath: Sexual Violence and The Truth and Reconciliation Commission’ [Agenda] A 7, 8

June 2014

CHAIRPERSON: Is there anything that you would like to tell us before you, we actually let go you today?

CHAIRPERSON: Go ahead... (Deborah Vuyelwa Jokazi, SA TRC Special Women’s Hearings, 28 July 1997) As favourable as TC processes seem when compared to the adversarial trial process, it is not as simple as to suggest that TC ensure post conflict justice for women survivors because women can tell their story. The reality of what women can and are expected to discuss is actually limited by the mandate creating a TC in any post conflict society. For women to really be able to give their personal narrative of abuses the mandate establishing a TC must acknowledge the true extent of violations suffered by women.19 Without this women’s experiences are to some extent ignored and the therapeutic element so integral to the process damaged. This proved to be the case in the SA TRC as the range of harms considered relevant was limited in such a way as to exclude much of the experiences of women.20 In the SA TRC the amnesty committee was authorised to grant amnesty to those who came forward regarding crimes during apartheid, as long as individuals fully disclosed all the facts and they could show the act was motivated by a political objective. From a gendered perspective the consequence of this was that women were not actually free to tell their own story from their own perspective. In several testimonies, as a consequence of the amnesty provision, the committee had to ask a series of difficult and often repetitive questions to establish perpetrator mo18 Laub, D ‘An Event Without a Witness: Truth, Testimony and Survival’ in S Felman, D Laub (eds), Testimony- Crises of Witnesses in Literature and Psychoanalysis and History (1st, Routedge, New York 1992) 19 Walsh, M, ‘Gendering International Justice – Progress and Pitfalls at International Criminal Tribunals’ in D Pankhurst (eds), Gendered Peace- Women’s Struggles for Post-War Justice and Reconciliation (1st, Routledge, 2008). 138, 139 20 F.N Aolain, C Turner, ‘Gender, Truth & Transition’ [2007] UWLJ 229,

tivation. CHAIRPERSON: When you started off you told about an experience where a man was trying to enter the door. Can you just give a clear context of that, because the way it came it was not clear enough as to what was the reason behind that. MS MXATHULE: This person attempted to rape me, because he had lust for me. … CHAIRPERSON: But he was not doing that in a political context, he was just doing it as a man who wanted to do that to you as a person? I am trying to get that clarity.

to explain the situation and re-emphasis the motivation of the perpetrator. From a gendered perspective the TC narrow mandate which focussed almost exclusively on ‘political violence’ resulted in a missed opportunity to examine the wider experiences of women, particularly social and cultural values around sexual violence.21 The consequences of this for women can still be seen, as the way in which past sexual violence within a society is addressed has direct and indirect links to attitudes in a post conflict environment.22 Therefore, TC offer a potentially more therapeutic form of justice for women, as when compared to adversarial processes TC give more opportunity for women to tell their personal narrative. However, the fact that testimonies are limited by the mandate creating a TC is a huge downfall, this reducing the utility of TC to ensure justice from a gendered perspective.

MS MXATHULE: Yes, because when I explained this to his father, he explained As TJ mechanisms both criminal trials and to my father that your child is, they are TC seek to ensure post conflict justice for used to each other. gross human rights abuses. However, each CHAIRPERSON: Again, I would like us mechanism attributes greater significance to be clear on this…there was no political to different forms of justice, with trials focontext. He was just doing it, because he cused on retributive justice and TC more focussed on therapeutic forms of justice. is used to doing that. The re-traumatising effect of giving evidence in an aggressive adversarial system is ... hugely limiting when assessing the potential MS SEROKE: Maria, we want you to as- of trials to ensure justice for women. In this sist us to have the political context of the sense it is the lack of importance attached first story you told us about. You heard to the experiences of women in adversarial that Sheila Meintjies during her submis- trials which makes TC an appealing altersion here, she said that at some of the native. However, as much as truth telling days, there is a very thin line between processes are acknowledged as offering domestic violence and political violence. women a greater opportunity to tell their When this Willard police, this policeman, story, ultimately neither mechanism enWillard, called you to his house and at- sures adequate post conflict justice from a tempted to rape you at gunpoint, did he gendered perspective. Both of these mechado this because he knew you were a Com- nisms address sexual violence within the rade or he just did it because he wanted confines of a set period of conflict, failing to appreciate the wider experiences of women to have sex with you? and the permanent conflict between male MS MXATHULE: He did this because he perpetrators of sexual violence and women. knew I was a Comrade and my husband Granted, a critical comparison of trials and was also a Comrade and he was a crip- TC shows the therapeutic and empowering pled or disabled. He could not defend us aspects of TC testimony to provide a more and he was involved in the struggle with gender conscious form of post conflict jusone of our friends. tice. However, TJ mechanisms fail women because they lack the capacity to transform (Nozibonelo Maria Mxathule, SA TRC the experiences of women. It is this transSpecial Women’s Hearings, 29 July 1997) formative element which is necessary in a post conflict environment if a transition is From this perspective TC failed to ensure to truly address the needs and interests of women could talk on their own terms. women. Clearly when compared to the adversarial trial process women were given greater freedom. But, the challenges of identifying the motivations of perpetrators of sexual 21 A Kusafuka, ‘ Truth commissions and gender: A violence challenged the idealistic notion South African case study.’ [2009] AJCR 45, 51 B Goldblatt, S Meinties, ‘Dealing with the Afthat the SA TRC gave women a complete 22 termath: Sexual Violence and The Truth and Reconspace to tell their own stories. To be clear in ciliation Commission’ [Agenda] A 7, 13; F.N Aolain, cases where there was difficulty establishing C Turner, ‘Gender, Truth & Transition’ [2007] UWLJ motivation; women were repeatedly asked 229, 249

The re-traumatising effect of giving evidence in an aggressive adversarial system is hugely limiting when assessing the potential of trials to ensure justice for women

Ebor Lex

June 2014

Are practitioners balancing the scales correctly?

A brief analysis of the rationale behind the parallel application of equity and common law

portrays a concept based entirely on individual morals and ethics alhe concept of equity in the lowing a great deal of discretion. study of law has caused a great deal of confusion as Whilst this is true to some extent, the history of equity has given rise to the to what purpose it serves development of various principles that and why it is required alongside govern its application. This essay seeks common law. The basic dictionary to explain how the principles of equity definition of the word equity as “the amount to a “sphere of law, which may quality of being fair and impartial”1 exert its influence across the entire field of

through the Courts of Chancery and analysing its influence on the law of property. It is respectfully submitted that equity best serves its purpose as an entity running alongside the common law in a relationship “between code and supplement, that between text and gloss”3. A consideration of Lady Justice’s weighing scales as a representation of the law as a whole seems to be an appropriate analogy. Previously tipped to one side by the common law’s failings to deal with cases adequately, due to its

rigorous application of rules, the scales were balanced by the introduction of moral values of right and wrong through the system equity, thus symbolising a step towards justice in fields where common law fell short of doing so.

1 Oxford Dictionaries, “Equity” (Oxford Dctionaries 21 November 2012) http://oxforddictionaries. com/definition/english/equity?q=equity

3 F. W. Maitland Equity a course of lectures (The Syndics of the Cambridge University Press 2nd edn. 1949), 153

4 Catherine Elliott & Frances Quinn English Legal System (Pearson Education Limited 12th edn. 2011), 117

Max Dyck

legal problems”2 by looking at its creation

2 Margaret Halliwell Equity & Good Conscience in a contemporary context (Old Bailey Press Limited 1st edn. 1997), 1

When talking about legal principles lawyers refer to those in law and those in equity. In this context, law means common law, as “equity and common law may be different, but both are law”4. Established

in the twelfth century through itinerant justices, common law’s rigorous application of rules had a significantly negative impact on the administration of justice as evidenced by the number of claims that were rejected by the courts, as they did not fit the requirements of a specific writ based on which litigants could bring claims to common law courts at the time. In search for an alternative means of acquiring a remedy litigants petitioned the King and “already by the end of the thirteenth century the number of such petitions presented in every year [was] very

large”5. Such petitions were passed on to the King’s Chancellor to deal with who was petitioned directly as the number of complaints increased. Through “his own individual sense of right and wrong by the merits of the particular case before him”6 the Chancellor, a member of the clergy, would give or refuse relief in cases where the common law courts were restricted by precedents, which governed the different writs applied at the time. By 1474, the Chancellor had begun to make decisions 5 Maitland (n 3) 3 6 Jill E Martin Hanbury & Martin Modern Equity (Sweet & Maxwell 19th edn. 2012), 7

Ebor Lex

June 2014

on his own authority as the Court of Chan- ed into one system of administration with a legal owner retains full ownership rights cery was created, in order to administer such milestones as the principle that equity against the world, common law would not cases of equity7. should prevail in case of a conflict between grant C. D. any claim at all against A. B., equity and common law, as stated in the as ownership is vested in A. B. Through The introduction of the court of equity Earl of Oxford’s Case14, being incorporat- the “imposition of an equitable obligation added a further layer to the law as the ed into legislation15. This sparked a debate [through the system of trusts] on a person Chancellor’s position allowed a move away of this fusion of administration on the sub- who is the legal owner of property [A.B.] from an analysis of strict rules of law, as was stantive law of equity and common law. which requires that person to act in good the case in common law courts at the time, Scholars of the fusion school of thought conscience when dealing with that proptowards “inquiring specifically into the de- argue that, “while not dictating the fusion erty in favour of any person [C.D.]”21, as fendant’s conscience”8. This gives rise to of the substantive law, [the Judicature Acts was suggested in the scenario above, equity the idea that equity provides the law with 1873-1875] rendered this, for the first enables C. D. to bring a claim against A. B. flexibility that “qualifies, moderates, and time, a realistic possibility”16. It is submit- In this particular example an equitable obreforms the rigour, hardness, and edge of ted that committing this “fusion fallacy”, ligation is placed on A. D., who received the law”9 to the extent that it complements which involves the “conclusion that the ownership rights as trustee from the testadecisions made in common law courts to new system was not devised to administer tor, to hold any responsibility in the propachieve a greater measure of justice. In law and equity concurrently but to fuse erty in order for C. D. to benefit from it as fact, as argued by Aristotle, “it is a recti- them into a new body of principles”17, beneficiary. At this point the law puts the fication of legal justice”10 in that it pro- would mean to reject the purpose of legal owner’s rights at common law alongvides alternative remedies to the common equity, namely the idea of a set of princi- side the beneficiary’s in equity, indicating law remedies and allows causes of action ples based on moral values that relate to that it would be difficult to replicate this against holders of legal rights through, for common law in a complementary manner. function “without using the law and equity instance, the creation of trusts. If one were to consider the fusion fallacy labels”22. In fact, if these labels were to in the light of the analogy of Lady Justice’s be abolished and a fusion of common law At this point one might argue that the weighing scales given above, one would and equity achieved, the result would be notion of equity seems rather arbitrary conclude that a fusion of the two systems “an invitation to civil war”23, as both the and contradictory to the idea of law, i.e. would lead to the loss of the notion of trustee and the beneficiary would claim the provision of rules, as its development achieving justice by attaining equilibrium. ownership rights. Accepting the additional was based on the moral standards of a set In fact, an entirely new system of rigorous layer of rights to property created in equity of ecclesiastical individuthe law, achieves a fair and Equity is seen and should continue to be seen just balance of interests that als and “recourse to morality, and indeed to notions as a complementary addition to common law would otherwise have been of conscience, will always absent. that works alongside it to achieve balance and be recourse to someone’s fairness within the law Whilst a more thorough or some group’s challengeanalysis of equity’s impact able moral vision”11. Over the years, however, equitable principles rules would be put in place, where one sys- on different areas of the law is required evolved through the Court of Chancery, tem’s wrongs could not stand to be correct- in order to make a case in favour of or which “provide a framework of reference ed by the other system’s rights, but would against the fusion of substantive equitable within which judicial decisions can be and stand unchecked and free to commit such and common law principles, it is submitare made”12. The most notable among wrongs that the introduction of equity had ted that equity is seen and should continue to be seen as a complementary addition the 12 maxims are “equity will not suffer sought to correct. to common law that works alongside it to a wrong to be without a remedy”, “he who seeks equity must do equity”, meaning One striking example of the success- achieve balance and fairness within the that a claimant must act fairly towards a ful interrelationship between equity and law. Its historic development as a necessary defendant, and “equity acts in personam”, common law is no doubt to be found incorporation of moral and ethical values meaning that equity has jurisdiction over in the “most distinctive achievement of of justice into the legal system, through the defendant as a person, as opposed to English lawyers”18: the trust or use, as it initially the Chancellor and later various against the entire world as would be the was referred to in its early stages. Consider maxims, suggests that equity is to be seen case with legal ownership rights13. Thus, the following scenario: If a testator gives as a sphere of law that is to run alongside whilst being based on what might be seen £1000 to A. B., desiring and hoping that A. common law. The dependence of the subas arbitrary moral values, equity is careful B. will, at his death, give the same sum or stantive law of trusts on the labels of rights any part of it to C. D., a trust is created in at common law and rights in equity show not to conflict with common law. favour of C. D. This was an example used that to commit the fusion fallacy would be With the introduction of the Judicature in the Court of Chancery case Knight v to get rid of the very idea of equity, namely Acts 1873-1875 the common law courts Knight19, which set out the three certain- to complement common law principles. and the courts of equity were amalgamat- ties in trust law20. Since at common law Finally, a fusion of equity and common law would destroy any notions of checks and 7 Elliott & Quinn (n 4) 117 14 Earl of Oxford’s Case (1616) 1 Rep Ch 1 balances between equity and common law, 8 Alastair Hudson Equity and Trusts (Routledge- 15 Judicature Acts 1873-1875, s. 25(11) which were put forward in the analogy of Cavendish 6th edn. 2010), 15 16 Andrew Burrows, “We Do This At Common Lady Justice’s weighing scales. 9 ibid, 13 Law But That In Equity” [2002] 22 O.J.L.S., 1, 4 10 11 12 13 44

ibid, 10 Margaret Halliwell (n 2), 2 ibid, 11 Jill E Martin (n 6), 35

17 ibid, 3 18 F. W. Maitland (n 3), 23 19 Knight v Knight (1840) 3 Beavan 148, 49 E.R. 58 20 ibid, [160]

21 22 23

Hudson (n 8), 43 Burrows (n 16), 5 F. W. Maitland (n 3), 153

Unlawful Laws: a Hypothetical Judgment

Mark Shapiro This is a fictional case involving key issues of jurisprudence. A significant part of the judgments draws the focus on the discussion of a fictional piece of legislation (art 12 of the Convention) based on the Radbruch formula. The formula itself should be examined in the context of the natural and positive law debate. As is hopefully clear from the judgments below, Lord Dowley is a supporter of the natural law theory whilst Justice Kaytee supports positive law. The main discussion of the Radbruch formula in this work revolves around the concept of justice and different schools of thought which have approached it. Lord Dowley gives an interpretation akin to the interpretation of Rawls, with some Kantian influence, and Justice Kaytee looks at justice as a merely procedural concept.

Additionally, the work looks into certain principles of judging, linked to the natural-positive law debate. Thus Lord Dowley is a clear functionalist, whilst Justice Kaytee is a pure formalist. Having looked into Posner’s theory of judging,1 Lord Dowley uses “down-up” judging techniques (deriving the principles from case law before application), whilst Lord Kaytee uses the “up-down” approach (using jurisprudential principles to interpret existing case law and applying those principles to the facts of the case). The final judgment of Justice Speyer is my personal opinion and interpretation of the two previous judgments.

1 Richard Posner, “Legal Reasoning From the Top Down and From the Bottom Up: The Question of Unenumerated Constitutional Rights” (1992) 59 University of Chicago Law Review 433

1. Per curiam 1.1 Procedure On 10 December 2584, the Prosecution Committee of Unified Nations brought a case against Justice Perusopoulos, President of the Constitutional Court of the Gaian Republic for a potential breach of art 12 of the Unified Nations Convention 2512. 1.2 Facts of the case The facts of the present case are as follows. The Gaian Republic has been strongly affected by an economic crisis of 2570s and up to the present day hasn’t recovered. After the 2597 elections, the newly elected majority party has legitimately and successfully passed a law declaring that a referendum will be held in November 2584 containing a single question: “Should the 45

Ebor Lex

June 2014

It is appealing to say that our moral, basic, human beliefs, based on pure logic and reason, should underpin every judicial decision. However, our morality is often vague and cannot create a working judicial system

My Lords, this is one of the most unfortunate cases I have had to judge in my entire career, which will inevitably lead to death of either the defendant or hundred thousands of innocent people

poorest 10% of the population be sentenced to death?” The law has been based on an academic report stating that the poorest 10% are to be blamed for the inability of the country to recover. This Court is satisfied, on the basis of comprehensive witness evidence, that, sadly, the findings of the report are true. The referendum has been held on 1 November 2584. 94% of the electorate answered to the question, out of which 82% answered “Yes” and 11% answered “No”. This Court is also satisfied that the referendum has been legitimate. Accordingly, on 5 November 2584 the relevant act (“the Solution Act”) has been passed and, according to the relevant procedure sent to Justice Perusopoulos for approval. On 8 November, the law has been approved and on the same day the Prosecution Committee of the Unified Nations received an interim injunction to stop the application of the law and applied to This Court for a judgment. 1.3 Convention, Process and Admissibility As specified by art 12 (a) of the Convention, “if a High Contracting Party enacts a law, fundamentally alien to the notions 46

of basic justice, any judicial authority is judicial decision for the purposes of Art 56, it has not found a ground for declaring banned from applying this law”. it inadmissible and therefore it is declared Art 12 (b) states “the judge of the judicial admissible. authority bears personal responsibility in adhering to Art 12 (a)”. Art 56 specifies that “any person whose 2. Per Lord Dowley of the Integrated judicial decision a) breached art 12 and b) Kingdoms lead or will lead to a death of a person shall be punished by death”. My Lords, this is one of the most unfortunate cases I had to judge in my entire According to art 154 of the Convention: career, which will inevitably lead to death “Any case in relation to art 9 – 15 of the of either the defendant or hundred thouConvention shall be heard by the Judicial sands of innocent people. Before I proceed Committee of the Unified Nations, consist- to the substantive judgment, I wish to note ing of three highest judges of UN members, that we have reached an agreement with fully independent, after an application for my learned Lords present with regards to such a hearing has been done by the Pros- the scope of the case. We have established ecution Committee. Whilst two of those beyond any doubt that the facts written judges shall look into the factual circum- above are fully correct and the only quesstances of the case and return a verdict, the tion lying before This Court is whether the third (presiding) judge should establish in Solution Act can be considered fundamenhis decision the principles binding in prec- tally unjust by the meaning of art 12. In lay edent on future courts. This decision should terms, we agreed, that the question before only be based on the principles used by the This Court can be put as follows: “Is killother two judges”. ing the poorest 10% of the population can ever be just and lawful, and if yes is it in the As This Court finds that Justice Peruso- present case?” poulos’ approval of the Solution Act is a

Despite this case being one of first impression, our ancient predecessors left us equipped with a valid body of case law. It is worth starting with the Nuremberg Trials, which effectively established crimes against humanity. In the Justice Cases2 it was clearly established that international law overrides domestic law, irrespective of how it was passed. Moreover, art 12 in its own nature is crafted to show the higher priority of international law. In my opinion, international law, as understood by the Nuremberg Military Tribunals, can be equated to the notions of natural law and its superiority to any law made by man. It is clear that the principles of natural law, to which any civilized adult citizen will adhere, will ban any domestic law breaching any basic individual right or liberty, especially of the most vulnerable citizens.3

Kaytee, soundly argue that it is not one’s judicial role to ignore the superiority of the present positive law. It is appealing to say that our moral, basic, human beliefs, based on pure logic and reason, should underpin every judicial decision. However, our morality is often vague and cannot create a working judicial system. It is stated in the ancient case of Road Accident Fund:5 “Prominent thinkers in other democratic societies regard it as just that the advancement of a society should not come at the cost of the most vulnerable. But justification analysis under s 36 is not a theoretical or philosophical exercise seeking ideal justice.” Though section 36 and thus the scope of Road Accident Fund bear no relevance to the present case, it nevertheless shows the important distinction between judicial and philosophical endeavor – the distinction I have to respect and to which I have Though in my personal view natu- to adhere. ral law shall always prevail, my judicial predecessors,4 as well as my learned Lord However, even in my judicial capacity, I cannot allow for the unrestricted sover2 United States of America v. Alstötter et al. 1948 (3 eignty of positive law. Art 12 has no meanT.W.C. 1) (Nuremberg Military Tribunal) 3 John Rawls “A Theory of Justice” (Harvard University Press 1999) 53-55 4 Alexander Bolton “Sotomayor: The task of the judge is not to make the law” in the Hill.com

(13/07/2009) referring to the confirmation hearings of the US Supreme Court candidate Sonya Sotomayor 5 and Another v Mdeyide [2011] 3 LRC 356 para 128 (South Africa Constitutional Court)

ing if we accept any domestic positive law as being the ultimate legal authority. Ancient cases provide the solution by the so-called “Radbruch formula”,6 stating that domestic legislation, which intolerably contradicts objective justice, should not have effect. In the current context, I can see no other interpretation of objective justice, apart from natural law. Taking into account the principle of K-H W v Germany,7 stating: “that positive law should be disapplied only in absolutely exceptional cases and that a merely unjust piece of legislation, which is unacceptable on any enlightened view, may nevertheless, because it also remains inherently conducive to order, still acquire legal validity and thus create legal certainty . . .”, I will accept the Radbruch’s formula in application to the present case. The “Solution Act” is exceptionally unjust. It has been said in application to the ECHR that “pre-eminence to art 2 [is] one of the most fundamental provisions of the convention. It safeguards the right to life, without 6 Gustav Radbruch “Gesetzliches Unrecht und Übergesetzliches Recht”, 1 Süddeutsche Juristenzeitun 105 (1946), tr in (2006) 26 Oxford Journal of Legal Studies 1 7 App. No. 37201/97 (ECtHR) para 20 47

Ebor Lex

June 2014

which enjoyment of any of the other rights and freedoms in the convention is rendered nugatory.”8 Taking away life of thousands of innocent civilians is pure and basic injustice, breaching the most basic natural law principle stated above, that it can never be justified or tolerated; it should always be an exception according to Radbruch’s formula.

Law itself has no inherent moral value. Legal system is a framework of simple rules and principles, given by a valid legislature, and the role of the judge is to fairly apply those rules and principles.

judge is to fairly apply those rules and principles. Senior judges in many jurisdictions have the additional task of judicial review of legislations – either in form of constitutional checks or, as in the present case, by international law reviews. However, the judiciary should remember that its task is not to examine the law in moral terms; but rather to assert whether it is procedurally just and My learned Lords will argue that eco- lawful. nomic aims justify the often monstrous means and that justice is a purely proce- Justice Dowley has rightly claimed that dural concept. However, I see that main art 12 has no meaning if any domestic duty of any court is to act as a shield to positive law is correct merely from the individual rights and liberties. This can fact that it exists. I fully agree with this never be achieved if people are seen as statement, but not in terms of some mere “means to an end”9 and court busi- form of natural justice. In my view, Art ness is seen as the mere procedural re- 12 refers exclusively to procedural jusdistribution of resources and responsi- tice discussed above. There have been bilities. Therefore, for the reasons given unfortunate occasions in human history above, I find “the Solution Act” funda- when either the legislator was not the mentally alien to the notions of basic lawful authority to enact those laws or justice. Accordingly, the defendant is alternatively the laws did not go through found guilty for breaching art 12 of the the proper procedure. Those two prinConvention and according to art 56 of ciples, empowered by the general conductive consensus among officials,12 are the Convention is sentenced to death. the circumstances according to which a law should be struck out as unjust in the meaning of art 12, at least in the major3. Per Justice Kaytee of the Republic of ity of cases. I will illustrate both of the Atlantis procedural principles and the rule of recognition13 below. Learned Colleagues, the present case, though being difficult, is a case of the Firstly, I will be referring to the Judges highest importance. Before proceeding Case, part of the Nuremberg Trials. In to the substantial judgments, I wish to the dismissal of the “mere law applicathank Justice Dowley for the informa- tions” defence the Military Tribunal tive summary of the legal question be- effectively used the “international law” fore This Court, which I fully confirm and natural justice arguments akin to and support. those of Justice Dowley above. Though I fully agree with the Tribunal’s deciIn his decision Justice Dowley has given sion, I believe that their reasoning was a great analysis of the relevant case law, wrong. In fact the laws which the judges concluding that if “higher” or “natural” wished to use were not valid laws in the law states that the positive law is unjust first place, as they violated both of the against moral criteria of exceptional procedural principles outlined above. strength and of general international Adolf Hitler’s route to his ultimate suacceptance, the positive law should give preme power could hardly been called way. Despite the merits of this, I can- legitimate – a sufficient example is the not agree with his arguments or verdict. use Reichstag Fire Decree of 1933, enIn my opinion, the true domain of jus- abling Hitler to get rid of his political tice is the procedural fairness of all the opponents in order to vote in the Enthree branches of power and thus the abling Act of 1934 allowing him to rule defendant is only guilty if “the Solution by decree. And, of course, rule by decree Act” has been enacted procedurally un- can hardly be called a legitimate procefairly. Law itself has no inherent moral dural rule of enabling legislation in a value.10 Legal system is a framework of civilised society. simple rules and principles, given by a valid legislature,11 and the role of the In order to exemplify the recognition rule I will refer to a rather entertain8 Pretty v United Kingdom (2002) 35 EHRR 1 ing ancient decision of the Supreme para 37 Court of the Russian Federation.14 The 9 Immanuel Kant “Groundwork’s for the Metaphysics of Morals” (3rd ed, Hackett,1993) tr J. Ellington 10 Joseph Raz “The Authority of Law: Essays on Law and Morality” (Clarendon Press 1979) 48 11 HLA Hart “The Concept of Law” (2nd ed, Clar-

endon Press 1994) 12 ibid 13 ibid 14 Kiruhin v Russian Federation [2009] Supreme Court of the Russian federation

court struck out a secondary legislation, which had been in force for almost two decades. The legislation required all citizens owning any printing devices (including the most basic printing) to be registered in the police office, otherwise the citizen will be charged with a fine. Despite the legislation, after the mass-spread of printing devices a few years after the enactment, the police did not act upon this law. No registrations were made and no fines were taken. The Supreme Court has decided that purely on the absence of official recognition of the law, it has no legal power and was struck out. As to present case, it will be hardly arguable for me to state that a lawful referendum can hardly ever be called procedurally unjust and there is no evidence that the Solution Act will not be recognised by the relevant officials. However, I have to make allowances for an occasion in which it will be just for This Court to strike out legislations. This circumstance is also based on Radbruch’s formula, but it gives a different definition of objective justice than the one used by Justice Dowley. In my opinion, in cases where the literal interpretation of the positive law will lead to consequences so grave that any reasonable member of a civilised society will find outrageously unjust, the positive law should pass a test of internal procedural justice. The test is described well by Lon. L Fuller in his works The Morality of Law and includes criteria such as generality and non-retroactivity. By including such a test, regardless of adding limited internal morality to the law which is inexpiable in most circumstances, the courts are allowed to defend the undefended innocent in exceptional circumstances, a power which if exercised might prevent grave historical consequences.

being would not be poor if he had the choice not to be. It is precisely the impossibility of compliance which makes the Solution Act unjust and thus I also have to find that, by his decision, the defendant has breached article 12 and is therefore found guilty. According to art 56 of the Convention the defendant is sentenced to death.

4. Per Presiding Justice Speyer of the People’s Republic Comrade Justices, as you are all aware, my role in this judgment is a purely concluding endeavour. In my personal opinion, both of the above judgments fail to look into the social and economic circumstances of the case upon which law should be based. However, I am restricted to purely choosing the binding legal principles of the above decisions for future courts to obey.

Both judgments concur that the defendant is guilty, because the circumstances of this case are exceptional according to the Radbruch formula. However, in my view Justice Kaytee’s interpretation of the formula is more compelling. Justice Dowley is making a logical presumption that a law taking the lives of innocent people can never be justified. I cannot agree with this statement. If we take an ideal world example, a clearly written conscription law can potentially send thousands of especially fit men to fight in the war, where all of them will die, but win the war. A differing conscription law may make a more general conscription sending more unfit men to the front and increasing casualties, but changing the certainty of death of the few to the potential death of the many. In my view, the second conscription law will be more just purely on utilitarian I will find that the case before This principles, which may be economic, as Court is exceptional enough to use the in the present case. amended Radbruch formula to establish whether it is just in the meaning of I cannot say, however, that the proceart 12. The Solution Act leads to deaths dural interpretation of art 12 by Justice of thousands, the only fault of which is Kaytee is equally wholly compelling. not being able to earn a living. Though This interpretation, as I said, is stripped referendum is the ultimate legislator, of the relevant social and economic cirthose innocent about to die do need a cumstances. Nevertheless, I would say shield, which can only be provided by that it is preferable than the decision of This Court. In a democratic state, the Justice Kaytee, as at least it ignores the majority is the ultimate sovereign; but purely subjective moral notions of Juseven such a sovereign cannot be entirely tice Dowley. Thus the binding decision unrestricted in its actions. I would ac- of this case should be the judgment of cept the consequences of the Act if they Justice Kaytee. were able to pass the above test of internal procedural justice. However, the Solution Act makes demands impossible to comply with. Every rational human

Justice Dowley is making a logical presumption that a law taking the lives of innocent people can never be justified. I cannot agree with this statement

Ebor Lex

June 2014

Vulnerability, Discretion, and Public Housing Policy

“The links between homelessness and health are cyclical” Sarah Champion, MP

Joshua Douglas

he statements made by Mahmood and Champion are two which encompass the problems that arise from homelessness, however, they arguably do not corroborate with Part VII of The Housing Act 1996, Homelessness (henceforth referred to as the Act). In order for a homeless person to successfully apply for priority need assistance from their local authority they must first satisfy and overcome a series of hurdles which test their vulnerability (required by law1); which have been the centre of controversy over recent decades. The test assessing the vulnerability of pri1 For “vulnerable” homeless see, s.189(c), Housing Act 1996

“Homelessness is an isolating and deskilling experience for the people affected. It affects their health and well-being in a significant and often lasting and damaging way” Shabana Mahmood, MP

ority need applicants has been described as a method of “gate-keeping”2 public funds or a “good practice”3 in its ability to support mental health agencies in ensuring prompt aid is provided to applicants with mental health problems. This issue is highly litigated due to the lack of statutory definition of the term “vulnerable”. The general court interpretation has been the primary source of definition, incorporating a tendency for leniency on local authority discretion through the many cases heard on the matter4. This essay seeks firstly to define the term vulnerable in accordance with current case law, and secondly, to dispute the use of leniency, arguing for the reduction, if not entire removal, of local authority discretion in 2 Kennett P, Marsh A, Homelessness: Exploring the New Terrain (Policy Press, 1999) 164 3 House of Commons OPDM, House of Commons report on Homelessness (2005) Volume 1, Third Report Session 2004-05 <http://www.publications.parliament.uk/pa/cm200405/cmselect/ cmodpm/61/61i.pdf> accessed 29/12/2013 4 Case confirmating the two-part vulnerability test, see R v Camden LBC, ex p Pereira (1998) 31 HLR 317, CA

homelessness cases.

Defining Vulnerability

The term “vulnerable” is used in section 189(c) of the Act to differentiate between statutorily homeless5 applicants who are, and are not, a priority need for accommodation. The word in the context of the Act is as follows: “A person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside”. Issues arise on application of this section due to the term “vulnerable” having no legislative definition. Following the ratification of the Act, a number of cases have progressed to the upper courts following disputes between local authorities and individuals on the correct definition of the term “vulnerable”. Indeed, it is the most litigated area of homelessness and remains a subject of academic debate to this day6. This has left 5 S.175, Housing Act 1996 6 Hughes D and others, Cases and Materials on 51

Ebor Lex the courts with the question of how the word should be interpreted, which in turn has seen the definition and redefinition of it in an attempt to correctly implement the law7. The current definition is taken from Waller L.J’s attempt to define vulnerability within the parameters of section 2, Housing Act 1977: “Less able to fend for oneself so that injury or detriment will result when a less vulnerable man will be able to cope without harmful effects...” 8 This definition gives little indication as to the scale of vulnerability; The list of persons eligible for priority need due to vulnerability was expanded by the Homelessness Order 20029 to include those vulnerable due to time spent in care, custody or in the HM Forces and for cases involving violence. To aid local authorities in determining the extent of an applicant’s vulnerability, a section within the Homelessness Code of Guidance was produced focusing solely on the list, which directly succeeds the term at s.189(c)10. A two-part test devised and applied in Bowers11 has been adopted by the courts and local authorities as the standard test of an individual’s vulnerability12. Even though the test has been applied in cases of vulnerability since its inception, criticism has been aimed at the overall implementation of it. Neill L.J discussed the use of a composite question in determining vulnerability, as opposed to a two-stage test, stating that it would cause less confusion, and perhaps avoids overlooking factors relating to a special reason for vulnerability, rather than deciding an application on the facts as a whole13.

in the local authority decisions stating that “it is elementary that matters of that kind were not... for us [to decide upon]”14. Morgan15 supports this rhetoric, stressing how rarely the courts should intervene as the local authorities are the ones with the knowledge and resources to deal with such issues. In comparison to a local authority’s ability to deal with the homeless, the courts are merely the theoretical battleground where speculative areas of law are pondered over. Laws L.J’s judgement rightfully emphasises that courts should be as inconspicuous as possible when dealing with homelessness cases unless a point of law is in question. Laws goes one step further in his obiter dicta by proposing that the question vulnerability, is one answered by the context of the term’s use in s.189(c). By looking at the cause and effect inferred by the categories of vulnerability that succeed the term, it embraces the “context in which the applicant may be less able to fend for himself so that... detriment may be suffered by him which would not befall the average homeless person”16. In light of this dictum, it is interesting to see if any pronouncements are made in subsequent cases as to the application of the term vulnerable in line with both the Pereira test and the Code of Guidance. As yet however, no substantial change has occurred.

Consequently, the definition of “vulnerable” is a subjective one, dependent on the respective local authority’s implementation of the Pereira test in line with the Code of Guidance17. While the courts have attempted to provide a test and a way of effectuating it, which amounts to a “composite assessment”18 of an application, the term’s ultimate definition has deep foundaThe decision-making power is delegated to tion in the discretionary powers awarded those in the best position to make the deci- to local authorities19. sions; Local authorities. Laws L.J, in Kruja, summarises the support the courts have Authorities and Discretion Due to the lack of a statutory definition Housing Law (Blackstone press, 2000) 333 of the term vulnerable, coupled with the 7 Luba J, Davies L, Housing Allocation and Home- courts’ insistence on supporting the use of lessness: Law and Practice (Jordan Publishing, 2012) discretion by local authorities, it is evident 457 8 R v Waveney DC ex p. Bowers [1982] 3 W.L.R 661 that a substantial amount of power rests at 244 with authorities as long as they operate 9 Homelessness (Priority Need for Accommoda- within the parameters of the law. This tion) (England) Order 2002 (SI 2002/2051) is because authorities have a “wide ex10 Department for Communities and Local Government, Homelessness Code of Guidance for Local Authorities (2006) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/ file/7841/152056.pdf> accessed 3/1/2014, at section 10.12 11 ibid (n10) 12 The test was applied in Osmani v Camden LBC [2004] EWCA 1706; also see, ibid (n6) 13 R v Kensington & Chelsea LBC (1997) 29 H.L.R 147 at 156

14 Kruja v Enfield LBC [2005] H.L.R 13 at 23 15 Morgan J, Aspects of Housing Law (Rev edn, Routledge-Cavendish, 2007) 192 16 ibid (n16) at 39-40 17 ibid (n12) 18 Arden A, Orme E, Vanhagen T, Homelessness and Allocations (8th edn, LAG, 2010) 168 19 ibid (n8) at 334

June 2014 perience” of homeless applicants20; As a result, they are not required to define the ‘non-vulnerable homeless person’ used comparatively when utilising the Pereira test. However, this leaves the application process open to potential exploitation as the authorities are able to qualify their individual judgements without reference to a pre-determined definition of vulnerability. It has been noted by the Court of Appeal that local authority decisions vary widely across constituencies as varying levels of vulnerability are found where similar case facts are apparent. In defence of this variation, Laws L.J is noted for his open approach to the problem; “Some might consider the decision a harsh one. Some decision-makers might arrive at a different conclusion... [they are] not for the judge”21. It is no secret that such a view is held consistently throughout judicial rulings on this matter. Pereira and Osmani are two such cases, which reinforce the need for discretion in local authorities, allowing for a dependency on previous precedent to develop. This is a fundamental feature of the English legal system, persistent within housing law. However, issue arises when such persistency sees continuing enforcement of discretion in local authorities when such powers are arguably abused. “Gate-keeping public funds is as powerful as statute and case law”22. Under the circumstances, such an idea could arguably carry the day. With the defence for discretion prima facie absolute, it seems logical to discuss how far discretionary powers are applied to gate-keep rather than determine the level of vulnerability necessary to gain priority need status. Instances where discretion could be used by local authorities beyond that deemed appropriate are often hailed as methods of “urban gate-keeping”23. Such suggestions have undoubtedly been taken into consideration by the courts, and yet on the balance of public interest vs the needs of the homeless, the judiciary continue their support of authorities in their effort to “husband their resources”24. To do this effectively, authorities have sought the aid of contracted medical services for advice. NowMedical is one such gatekeeper “species” 25 that have been shown to suc20 Madge N, Sephton C, Housing Law Casebook (4th edn, LAG, 2008) 778 21 ibid (n16) 22 Aers R, ‘Enough’s Enough’ (London, March 2009), Roof 26 23 ibid (n4) 24 Shala & Anor v Birmingham City Council [2008] 8 H.L.R 118 25 Hunter C, ‘Denying the Severity of Mental Health Problems to Deny Rights to the Homeless’ (2007) People Place and Policy Online, 2 and 24

cessfully reduce the acceptance rates of certain authorities. Subsequently, a culture of refusal has occurred, especially encompassing vulnerability due to mental health issues. Less severe issues treated with medication leaves could leave the individual less vulnerable than necessary, while a lack of prescription suggests they are not in enough need to have it administered. Therefore, a catch-22 forms through the use of discretion when a lack of resources encourages the need for one. While the accusations of the practice would face a response of “absolute denial”26, gate-keeping by authorities can be implied through statistical analysis of government data on acceptance rates of varying categories of priority need27. Throughout the 14-years of recorded applications, the variation on acceptance rates for vulnerable categories (when analysed separately) is less than 3%. For example, in any given year acceptances included 5-7% disabled applicants; 1-4% old age; 7-9% mentally ill; and 3-6% domestic violence. This marginal variation <http://extra.shu.ac.uk/ppp-online/wp-content/ uploads/2013/06/severity_mental_health_rights_ homeless.pdf> accessed 29/12/2013 26 Hoskins Q, ‘How to Deal with Local Authority Gate-Keepers’ (2009) The Legal Secretary Journal <http://www.legalsecretaryjournal.com/?q=homeless_applications> accessed 29/12/2013 27 Government Statistics, ‘Live Data Sets- Table 773’(1998-2013) <https://www.gov.uk/government/ statistical-data-sets/live-tables-on-homelessness> accessed 23/12/2013

in acceptance rates per category suggests that gate-keeping by local authorities may well be accountable to a modus operandi strictly adhering to a quota of acceptance, ensuring a certain number of each category of applicant are accepted. Alternatively, it could be deduced that the number of applicants per category varies little yearon-year, however due to the impromptu nature of homelessness, statistics are more likely to support the employment of gatekeeping. Discretionary powers are too wide at present. Nevertheless, it is understandable that a tight restriction be enforced in order to avoid an over stretching of local council funds. This is especially prevalent as the dwindling social-housing stock (chart 128) places pressure on authorities to ensure homes made available are given to those in the highest need; That is when s. 189 can be applied. Reports of particular concern arise, however, when discretion denies the vulnerability of sufferers of mental health problems even where strong evidence purports to aid their application29. The decision in Osmani to support current 28 Taken from the Department for Communities and Local Government, ‘Housing Statistical Release’ (december 2013) at 3, <https://www.gov.uk/ government/uploads/system/uploads/attachment_ data/file/266691/Local_authority_housing_statistics_201_13.pdf> accessed 3/1/2014 29 ibid (n9) at 461

discretionary powers seemed to place the term ‘depressive homeless person’ as synonymous with “an ordinary homeless person”30. Indeed, discretion has caused lengthy litigation ‘battles’ between the authorities and an applicant over medical reports31. Applications have been rejected where the individual is vulnerable to the extent that they are suicidal. A controversial example, Bellouti saw a non-vulnerability decision upheld by the courts as conflicting evidence provided suggested the applicant might not act out the suicide32. Such a decision was within the rights of the local authority, however, the ruling in Griffin provided assistance in determining vulnerability in future cases by specifying a need for a “significantly increased risk” of harm befalling the applicant when compared to an “ordinary homeless person”33. Such an addition to the test implemented by local authorities only widens their discretionary powers, now needing a “significant” risk of harm to support an application for priority need.

Discretion: Past or Future?

Many issues arise through the use of dis30 ibid (n27) at 21 31 Authorities are legally entitled to obtain their own medical evidence under Hall v Wandsworth LBC [2005] H.L.R 23; However, must adhere to a set of rules if obtaining such evidence, Shala ibid (n26) 32 Bellouti v Wandsworth LBC [2005] H.L.R 46 33 Griffin v Westminster C.C [2004] H.L.R 32 at para.16 53

Ebor Lex cretion to define vulnerability. The judiciary seem to support the Pereira test, almost encouraging the continuation of authority discretion through the suggestion of a composite-approach34 and other such directions. It would seem that a radical overhaul of the process is necessary to remove or reduce discretionary powers. We may find the blueprint for such an overhaul in Scotland.

No matter how homelessness is dealt with, it is clear that the current system cannot proceed. The extension of discretionary powers through common law is widening an already broad spectrum of nonvulnerability into which local authorities are shepherding applicants they cannot deal with due to resource constraints.

As of March 2012, all unintentional Scottish homeless were classed as priority need removing the applicability of a vulnerability test altogether. In response to this improved council homelessness schemes, the number of people seeking help has fallen by 11% over 2013 with cash injections into social-housing and homelessness prevention aid promised35. This has completely removed the issue of discretion and has seen apparent improvements in homelessness numbers. The numbers are a promising sign that the decrease is a result of the change in law. Support for such change can be implied from Loveland’s study stating that only by removing the “considerable discretion” provided to authorities can inconsistencies be avoided36. Such a system without discretion is a possibility for England, however it would be unwise to implement it without first addressing the potential effect on resources for authorities. With a lack of housing or funding to build more, a change in the law could spell disaster for the most desperate homeless with less vulnerable individuals being offered houses on an equal basis. Even though Loveland’s study is almost twenty-years old, it is arguably relevant, the findings being mirrored by Hunter’s. However, rather than call for a change in law, she suggested that an increase in consistency is necessary within the current process to make it fairer on applicants37. The Code of Guidance can be found attributable for partially causing inconsistency by not providing detailed 34 ibid (n15) 35 Frankel M, ‘Fall in Scottish Homelessness Applications’ (November 2013) <http://www. bbc.co.uk/news/uk-scotland-25002321> accessed 29/12/2013 36 Loveland I, Housing Homeless Persons: Administrative Law and the Administrative Process (Clarendon Press, 1995) at 160 37 Hunter C, Bretherton J, ‘The use of medical Evidence in Homelessness Cases’ (2012) Research Summary <http://www.york.ac.uk/media/law/ documents/ESRC%20Medical%20Evidence%20 Research%20Summary.pdf> accessed 3/1/2014

June 2014 support for local authorities on issues such as medical reports. The Code of Guidance has therefore come under rightful criticism. Pitchford L.J highlighted how the Code has “grown incrementally” and upon reading implies the authors did not “start from scratch in order to ensure the consistency of approach between different categories of vulnerability”38. This undermines the credibility of the Code in its effectuation by local authorities as Pitchford further stated his inability to consider the Code of assistance in interpreting s.189(c). One the other hand, he later advocates the common sense approach of the Code in its “repeated reference...to consider all circumstances of the applicant”39. Without such guidance the law would most likely be lost to those dealing with applications. Most are likely not to be versed in the jargon of the judiciary, or indeed have knowledge of such judgements existing, and so the existence of a Code is necessary to provide the law in a simpler and more appropriate fashion to aid in its exercise. A new Code of Guidance would allow for more experiential advice to be written, encouraging a sourcing of information from current judgements and gauging of social and economic climates to provide improved support. No matter how homelessness is dealt with, it is clear that the current system cannot proceed. The extension of discretionary powers through common law is widening an already broad spectrum of non-vulnerability into which local authorities are shepherding applicants they cannot deal with due to resource constraints. The vagueness of vulnerability as a defined legal term gives rise to the sizeable amounts of discretion which is exploited by authorities, whether through want or necessity. Housing stock should no longer be the measure of an individual’s worth and the long overdue discussion on how to build a home for everyone in the UK needs to finally begin. By viewing the homeless as more than second-class citizens, and removing the test to discern who is more deserving among them, we can finally accept as a society that the homeless are our “responsibility... not [to be] shunned in any respect”40.

38 Hotak v Southward LBC [2013] EWCA Civ 515 at 38 39 ibid 40 HL deb 27 June 2013, vol 746, col 863

The Right to Education Over Time

school leavers age rouse rapidly and is today seventeen4 and will be 5 child’s right to educa- eighteen from 2015. tion became recognised Situating ourselves in a trajectory that as a key requirement is still unfolding benefits the study of of a civilised society in the law of education in the twenty-first the early nineteenth century. Until century as it allows us to reflect upon how 1870,1 education was a preserve for the changes to education in the past are the wealthy and seen as a subordi- still influencing the changes to education in the present. In this article I will look at nate function of childhood.2 Once the natural progression of a child’s right education became compulsory3 the to education from industrialisation6 until Rachel Newell

1 Elementary Education Act 1870. 2 Evans E, The Forging of the Modern State: Early Industrial Britain 1783-1870 (3 edn, Harlow, Longman, 2001) 232. 3 Elementary Education Act 1876.

4 Government, ‘School Leavers Age’ (9 January 2014) https://www.gov.uk/know-when-you-canleave-school accessed 14 March 2014. 5 Education and Skills Act 2008 Chapter 1. 6 Atiyah P S, The Rise and Fall of Freedom of Contract (1 edn, OUP 1985) 257.

present. Firstly, with regards to the interventionist state, let us question the state’s rationale for intervening and how it only does so as far as is necessary.7 There are four forces, which I see as paramount to why education has been reformed since the nineteenth century. Secondly, I will consider how the rights of the individual have been infringed8 as education has evolved and how this intervention is justified by the complexities of society. In relation to this I will explore compulsory 7 An Occassional Contributor, ‘The Education of the Million’ The Ipswich Journal (Ipswich 5 March 1870) Issue 6817. 8 D Lawton, The Education Reform Act: Choice and Control (British Library Cataloguing in Publication Data, 1989); David H. Hargreaves, ‘A Sociological Critique of Individualism in Education’ [1980] British Journal of Educational Studies, vol 28, no. 3. 55

Ebor Lex

June 2014 adequate and did not put a stop to exploitation of children as the factories dictated education. The need for compulsory education to put a stop to child labour was the rationale behind the 1876 Education Act, which offered a protective blanket to children between the ages of 5-10 and prohibited any employment that would interfere with a child’s education. From this a similarity between the centuries can be seen, as the state does not expect children to work, rather it offers a safe place for this vulnerable section of society. Despite attempts to protect children, exploitation leaked into the twentieth century26 and still causes issues today.

education, choice after being educated to the basic standard,9 the impact of the ECHR10 and how the state is needed to allow all children access to education. Furthermore why, when looking at history, an individual can rarely be a sole individual11 and how making education available to the masses allows equality and breaks down classism. Finally, consideration will then be given to how education allows social mobility between classes and professions, yet the private and state school divide still remains and regardless of the state’s intervention, inequalities with opportunities also remain.

until Forsters Bill15 that a justifiable intervention emerged. The state recognised the reluctance of society to accept the infringed rights of the individual, however the free market was failing the majority of the population, leaving young people less skilful. Previous teachings were not accessible to the working class, most of whom lived in the new urban areas, due to a fear that educating such classes was an unnecessary indulgence that would lead to segments of society rising above their order.16 The trust that was once central to the agrarian communities17 had dissolved as if by the pollution from the new factories.

Industrialisation and the complexities that arose as a result, including population growth and urbanisation, opened the floodgates to an interventionist state that used education as a tool that interjected into the lives of the free Englishman12 in an attempt to produce an educated society that knew how to abide by the social contract.13 The lack of foundation to build an education system for the masses led to a string of inconsistent donations and inadequate legislative attempts.14 It was not

Although originally controversial, in 1876 a consensus was reached that the state’s intervention had been successful.18 From this point onwards the rise of compulsory education was set in motion as the state began to appreciate the importance of investing in the next generation. Today we find ourselves again in times of striking change, with globalisation and technological advances increasing competition between nations, yet it is from industrialisation that we see the demand for education start to unravel as society becomes more complex. As such, raising the school leavers age is a natural progression parallel

9 G.C.T.B., ‘The Elementary Education of the Country’ Journal of the Women’s Education Union (London, 16 October 1877) 145. 10 Julian Lonbay, ‘Education and law: the Community context’ [1989] European Law Review 363. 11 J Tosh, The Pursuit of History (5 edn, Pearson Education, 2006) 222-223. 12 (n 7). 13 (n 10). 14 Anonymous Council of Legal Education, A Century of Law Reform: twelve lectures on the changes in the law of England during the nineteenth century, delivered at the request of the Council of Legal Education in the Old Hall, Lincoln’s Inn, during Michael56

mas term 1900 and Hilary term 1901 (Bibliolife LLC, 1901) 151-155. 15 Alfred Codd, ‘Mr Forsters Elementary Education Bill’ New Readerships (London, 19 March 1870) 209. 16 Evans (n 2) 231. 17 Sarah Wilson, ‘Britain from C. 1750: The emergence of modern Britain’ (Plenary, seminar 2, 20 January 2014) Slide 11. 18 ibid.

to the evolution of society. It is from this point that I agree with Tosh that situating ourselves in an evolving society gives us some purchase on the future and allows a measure of forward planning.19 Identifying with educational development, as a process does not mean that we have to agree with its changes, however the majority would agree that an educated society is a sophisticatedly organised and civilised one that shares a mutual standard.20 By reflecting on the influences that prompted education reform in the nineteenth century we can predict where more changes to education may be made in the future.21 I believe that the forces influencing why the state intervenes in education today are the same as the forces that influenced education reform in the nineteenth century. We would not know about these similarities, unless historical awareness22 had been projected into the past to look at education reforms. Firstly, the state offers a form of protection to children subject to child labour.23 The risk of this began in 183324 and the Victorian’s recognised that child exploitation is unattractive in a civilised society.25 However, education in this context was in19 Tosh (n 13) 40. 20 ibid. 21 ibid. 22 Tosh (n 13) 1. 23 Clare Harrison, ‘Child labour – turning a blind eye? [1991] N.L.J., 141(6494), 301. 24 Factories Act 1833. 25 Sue Palmer, ‘Child Exploitation, 21st Century Style’ (January 2010) < http://www.suepalmer.co.uk/ modern_childhood_articles_child_exploitation. php> accessed 20 March 2014.

Alongside this an underlying motive to combat youth unemployment emerged. The nineteenth century mindset meant that the state would only help those that helped themselves, if not, you only had yourself to blame.27 This rationale does not sit well with society today as since the 80s we have become accustomed to state intervention as a means of help, the difference being that in the 19th century state intervention was needed to protect the majority whereas today it is the majority that exceed the school leavers age and stay in some form of education or training. The unskilled worker has disappeared and the state intervenes with justification to improve the skills of society, giving each member the same chance of competing in an increasingly globalised world.28 Research commencing in 2009 has prepared the country for raising the school leavers age and a subjective criterion for each school district has been formed.29 Such sophistication was also in operation in the nineteenth century, as by reforming education the state intervenes, and then leaves enforcement up to the individual to follow the school board, teachers and parents, with the state only intervening again if the individual breaks the social contract. Applying this to raising the age today, we can see that the options for the individual aim to cater to all preferences30 which rationalises state intervention as minimal in proportion to the fact that sole individuals or small collectives can no longer organise education for such a large population. The state, as the highest being of our country, is best equipped to improve the standard of society through determining the set standard we should all be educated to. It does so by installing the same values, al26 Children and Young Persons Act 1933. 27 (n 10). 28 Lonbay (n 11) citing ECHR para 17. 29 Department of Education, http://www.education.gov.uk accessed 14 March 2014. 30 Government (n 4).

lowing us to continue living in the civilised As societies standards increased, educawestern society to which we have become tion was seen as the predominant way chilaccustomed. dren could better themselves and improve the overall standard of the country. Today Starting the education process from a this is similarly the basic premise of raising young age allows everyone to reach the the age. However, we increase the pressure same standard31 and have the tools in on young people to make early choices as place to deal with what is to come. By the to their future and risk unleashing a generstate pushing society in the right direction ation obsessed with working. Objectively, this reduces the chances of the individual an educated society is a society with high relying on the state, whether this reliance standards, yet when the rights of the indiis in the context of the poor law amend- vidual become unprotected as a result of ments32 or welfare benefits today. In this excessive educational demands, the state sense, we see history as a circular force re- has failed in its duty to protect children peating itself, as characteristics of society who are still considered vulnerable. are similar and I see education change as a positive progression as changes to educa- In addition, nineteenth century education in the past have been for the better, tion did little to promote the individual and changes in the future will also be. as we have seen that children were and Although England was the workshop of still are considered a vulnerable class of the world,33 the competition in the nine- persons in need of protection. However, teenth century was with already estab- some thought punctuality should not be lished economies and Forster believed compulsory as it would come naturally that leaving work folk unskilled would and there was no evidence to suggest that see us over marched by the competition.34 direct compulsion between the ages of five Whereas today, globalisation has meant and twelve worked, in fact there was evithat emerging economies post the biggest dence to the contrary.39 Compulsion was threat to western societies as it is inevitable seen as oppressive to the individual values that countries such as China and India will society had always abided by.40 As discovbe able to offer cheaper labour and manu- ered above, the growing population and facturing, and it is on the basis of this that demands of an evolving, complex society New Labour thought it had never before meant that the individual had no choice been so crucial to raise the leavers age.35 but to accept that its freedom would be reOur nations skills were not world class and stricted on the condition that the whole of without raising education standards we civilised life would be improved through would be jeopardising our long-term pros- education. This accepting mind set is still perity.36 Differences such as these reinforce at play today, for example, the nineteenth the fact that nothing in history stands century state recognised that academic still and that we cannot impose modern education was not for everyone and it reassumptions on previous ages. Instead sponded with practical options.41 Today we can use education history as a social we see this in the apprenticeship culture, mechanism37 and reflect upon the striking volunteering opportunities and the allowchange that we have endured. ance to work full-time whilst studying. To understand how education has got to this point we must situate it in our present time, tested against the historical record and if necessary replaced by a more accurate perspective.38 Discussion surrounding the rising age today draws upon the Victorian mind-set, as it is unacceptable to have a large proportion of society unemployed offering little contribution to the country. 31 ibid 268. 32 E L Woodward, The Age of Reform 1815-1870: Oxford History of England (2 edn, OUP, 1963) 430. 33 Robin Simmons, ‘Raising the Age of Compulsory Education in England: A Neet Solution?’ [2008] British Journal of Educational Studies, vol 56, no. 4, 428-431. 34 ibid 424 citing Forster 1870. 35 Simmons (n 49) 422. 36 Simmons (n 49) 423 citing The Leitch Report of 2006 p 1. 37 Atiyah (n 6) 256. 38 Tosh (n 13) 40.

Moreover, the ECHR recognises a national minimum standard in each member state’s education system and that each state is there to provide financial assistance and opportunities for the individual to pursue its chosen career. There needs to be an opportunity to carry on in education throughout ones working life and improve skills or obtain new skills in light of technological developments. This should be provided by each member state, however what is studied, post basics, is the individual’s choice.42 When looking at state individualism, in one sense we no longer need to look at history as education, specifically higher education, no longer always 39 (n 10). 40 Contributor (n 7). 41 ibid. 42 Lonbay (n 11) citing ECHR Articles 9 and 10. 57

Ebor Lex falls purely within our domestic jurisdiction. Co-ordination of training with other member states allows free movement into education in other European countries consequently promoting a people’s Europe through education43 and relinquishing the need to focus too heavily on England’s education history. In the nineteenth century parents choose whether their child worked whilst in education. For some working class families this was inevitable, as families were dependent on their children’s wages. This seeped through into the twentieth century and in 1901 300,000 children did this.44 Raising the age through legislation was the only speedy and efficient way to change this.45 Since the first offerings of free milk for children in need of financial assistance and today providing free education for 16-19 year olds, subsidised transport and uniform,46 the state is protecting a child’s right to education. However, in 1947 there was a 130% increase in children enrolling in higher education,47 in this sense the individual is still helping himself as the majority are sophisticated enough to decide whether they want to stay in education and in 2008 87% of children stayed in education post sixteen.48 By making the school leavers age compulsory the state is merely showing itself in a positive light, either taking credit for the individuals choice or imposing upon the 13%49 that choose not to stay in education post sixteen, albeit the more vulnerable proportion. When we refer to the individual we do not refer to a sole individual, rather a collective of individuals.50 This is because although no two individuals are the same, the way they behave in certain situations is similar, for example, education campaigners wanting to institutionalise education so the future was structured.51 Regardless of the individual, education is circular as the actions of such campaigners made education an institution and such institution is then changed by actions,52 such as youth unemployment. To understand the forces leading to this change we need to look at a collective of individuals instead of looking at a sole individual as he is likely to provide no shape and instead a chaotic sequence 43 Ibid citing ECHR Article 235. 44 ibid. 45 Musson and Stebbings (n 34) 75. 46 Department of Education (n 41). 47 Simmons (n 49) 427. 48 ibid 421. 49 Ibid. 50 Tosh (n 13) 268. 51 Contributor (n 7) 52 Tosh (n 13) 222-223 citing Philip Abrahams. 58

of events.53 Moreover, some believe that our society focuses excessively on the individual and trivialises social functions of education in the process. To base children on their merits we must compare them to the mass without any social barriers and reward their talent and effort accordingly.54 By promoting the individual, education cannot promote a certain individualistic type of society that is out of its reach, as due to the similarities between individual interests, looking at a collective is inevitable.

June 2014 lishments, which are still considered to teach to the utmost standard. It has been argued that increasing parental choice would stand a better chance of improving the educational standards of each generation than raising the school leavers age,61 as this avoids situations where only the privileged can afford to send their children to private schools. This would be fairer to the majority and more choice between schools would increase competition and see the worse schools closed.

The remaining issue in the twenty-first century is that nineteenth century society did not want to put the power of educating the million into the hands of those whose influence meant that they could favour relatives or friends. If this happens today, the state would say that it does so underhandedly, however I do not believe that this is now a myth as a great stigma is still attached to ‘who you know’; if you know a lawyer, you will more than likely be able to get advice and work experience from them. The state may provide equal education opportunities, however this objective standardisation offers little help to the individual from a working class background who, through no fault of their own, has not had as much experience outside of their compulsory studies, yet is as ambitious as the upper class child, as from an employAs education has evolved we have em- ers’ perspective the candidate who knows braced social mobility58 and to some extent the firm and comes with high recommenbreached the classism divide. Equality dations will be favoured. helped do away with this in the nineteenth century by local school boards having the A child’s right to education has evolved as discretion to remit whole or part of a child’s society has since the nineteenth century. school fee in poverty cases. This upheld The interventionist state was, and still is the fact that the emerging and established needed to: protect children from exploitaclasses alike needed educating to survive tion, combat youth unemployment, eduin the foreign society that had emerged cation society to the same standard and as a result of industrialisation.59 Children help the public expenditure strain. Greater were no longer born into a certain pro- choices in education have emerged to fession and as lower orders began to rise reflect individual interests, yet as long as above their previously restricted status,60 children remain a vulnerable class in need more choice was allowed. With this came of protection the individual becomes a colhealthy competition, as for the first time lective with state intervention being necesthere was a widespread society all educat- sary. The aim of education has always been ed to the same standard with the opportu- to provide equality of access for all and nity to dictate its own future. Although a although diluted, a classism divide seemwider cross section of society was begin- ingly remains. Raising the school leavers ning to be represented through education, age to eighteen is one of many pieces in today it is inevitable that as long as private the education puzzle and it will not be the schools are around, the privileged classes last as our present becomes someone else’s will be able to be educated in such estab- past. State intervention provides equality and its 1870 beginnings describe a fair and liberal act supporting all moderate and practical men, providing access to public elementary education for all children.55 Industrialisation pushed working class families into cramp urban areas without the necessary education facilities and full of factories with minimal education where children were expected to work and rarely exceeded three and a half years in education.56 The upper and middle classes sent their children to private schools in the country, but as the industrial class emerged and demand grew, the state was needed. Today the vision of the Department of Education is equality for all backgrounds,57 which is the same vision Forster had.

53 54 55 56 57 58 59 60

Tosh (n 13) 222-223. ibid 194. Contributor (n 7) Evans (n 2) 232. Department of Education (n 41); (n 1). Tosh (n 13) 72. Atiyah (n 6) 257. Evans (n 2) 231.

Goodbye

www.eborlex.co.uk 61 ibid. 59

Ebor Lex

MAKERS OF FINE LAWYERS We have a single objective: to create lawyers of extraordinary quality. We carefully select and nurture individuals with character, commitment and curiosity. We then give them the opportunities and the support they need to become exceptional lawyers, capable of advising the worldâ&#x20AC;&#x2122;s leading businesses and business leaders. www.macfarlanes.com