An Attempt to Control ‘Psychopaths’: One Possible Origin of Religion and Why that Attempt Did Not Work Part 7

Before I started his post, I came across his question in Quora:

“Why are we taught the moral values like honesty, trust, respect, ethics, justice etc. when there is no rule of nature. Most of the times criminal gets away after committing crimes (even when they are of inhumane nature) and innocent suffers?”

https://www.quora.com/Why-are-we-taught-the-moral-values-like-honesty-trust-respect-ethics-justice-etc-when-there-is-no-rule-of-nature-Most-of-the-times-criminal-gets-away-after-committing-crimes-even-when-they-are-of-inhumane-nature-and?__filter__=18&__nsrc__=1&__sncid__=7414371518&__snid3__=11155451512

I wrote the following as a reply:

“I would like to give an answer to your question, which from your tone appears to be very personal and, out of respect, requires a serious, if short, answer.

Firstly, is there no rule of nature?  The vast majority of humanity are empathic, that is, to put it glibly, they do care about moral values, as it is in their nature to care. Without empathy, there is no generosity to strangers, no justice, no society and no civilisation. There are humans that have no empathy, being either born that way or being brutalised from experience. The latter people can be brought back to their natural state (perhaps not easily, perhaps never). The former cannot and they could not survive without us empaths; they are parasitic upon us. Unfortunately, they are equipped by their own nature, to turn our empathy against us, to get to positions of political or moral power and so corrupt our moral values, values that have been built on our empathy. They can even rig our political and moral systems.

Depending on the circumstances, it may well be that criminals as you term them (that is, those without empathy) are able to commit their crimes and the innocent do suffer, but as long as persons like you realise that such a situation is the norm, then in the long term, justice will prevail.

I can only hope that you can persuade enough other people to see that justice not only does matter, but can be achieved and become the norm, as it should be.

As to why are we taught moral values, then there are a few answers. One of them is have a common set of values, another is to have values that we can reflect on to see if they are, in some sense the best, and another is to train us in the use of the values, so they can be applied respectfully and effectively.”

[Other replies are available.  Please see site.]

As I stated, the above was a short answer.  I stand by the claim that “[t]he vast majority of humanity are empathic … as it is in their nature to care. Without empathy, there is no generosity to strangers, [no altruism], no justice, no society and no civillisation”.

I had better explore some of what I have claimed.  Empathy, here and throughout all posts, unless stated otherwise, follows the general definition of the ability to identify with or understand another’s (typically a person or a group of persons) situation or feelings and the intellectual identification of the thoughts, feelings, or state of another person.  I do not use the term to project my own feelings to an object, that is, to a never living being.  Once (at least, think) you understand then the next stage is to care, if you don’t already care as a direct part of empathy.  Care can be synonymous with compassion and is the basis of altruism.  Altruism is deliberate benevolence towards others and quite impossible without understanding the needs of others (part of empathy); it has to be to that other’s benefit, perhaps at a loss to one’s self in some fashion.  Justice, will be defined for our purposes as quite simply doing the right thing for each person, as this does no violence to the concept, and that justice needs an entire essay to itself, but does arise from empathy (even if it is now independent from empathy, it still starts from empathy).  Without justice, there is no society, there is perhaps a family bound together by (a mutual) love or a gang bound by fear of the leader and the selfish hope of individual gain.  Without society, then civilisation cannot exist as only an ordered band of people. could co-operate to build such.

I claim that there are two groups who have no empathy.  One broad group would be those whose empathy has been impaired, but who can have their empathy revived or restored “(perhaps not easily, perhaps never)” and, though not naming them as such, psychopaths, who “could not survive without us empaths; they are parasitic upon us”.  When you consider the above paragraph, psychopaths lack the very building block required to have altruism, etc.  I consider here that psychopaths require empathically-normal persons’ (empaths’) altruism to survive, to be allowed to be a part of a society or a civilisation.  As I said they could form gangs or live within a family’s love, but societies are better than families at organisation and are larger.

I have now mentioned love a couple of times and must consider it here.  The love I am talking about is the natural affection felt within families.  This appears in parallel with empathy and again is missing from the psychopath.  It appears to be separate from empathy and may be a rival, so that your family may be placed ahead of strangers, which can be a source of moral conflict.  For example, suppose your brother had killed another person, who now has a grieving family, do you deliver your brother to the authorities for trial and punishment or do you protect him from that fate?  I shall set that aside for now and return to the point in a later post.

“Unfortunately, [psychopaths] are equipped by their own nature, to turn our empathy against us”.  I am here thinking of the most important scientific theory that can be applied outside of science (that is to non-scientific problems), the Darwinian theory of evolution through natural selection (henceforth to referred to as evolution), for the psychopath must have evolved alongside the empath and although devoid of empathy able to understand (analytically) what empathy is and use empathy from empaths to make their way in the world with the most successful of them able “to get to positions of political or moral power”.  From these positions it is possible “to corrupt our moral values …[which] have been built on … empathy”, that is, from a position of authority, they suggest or impose values that will ensure the thriving of (that) psychopath (or without meaning to benefit, them, psychopaths in general). In this way “[t]hey can even rig our political and moral systems”, so that our systems themselves become psychopathic.

Sometimes our systems do not need to be empathic and it may even be to the advantage of society to not be empathic.  Here, by empathic, I mean, obviously, something different from the definition given before, which applies to persons.  Also I talk of systems being psychopathic and how can this be so?  To describe a system as empathic is because it has been set up on the principles of empathy, but there times when, in the interests of justice, that the system serves everyone fairly and not not just because the officers serving the system feel some more sympathy towards one person using the system than another.  This is not to say that this system is psychopathic.

To say that a system is psychopathic is to say that the system treats persons as a psychopath would.  Kant had a maxim, often called the ‘Formula of Humanity’: “So act that you treat humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means” or more succinctly as treat a person or persons as ends-in-themselves and not merely as means to an end.  In other words respect persons.  A psychopath would not treat persons as other than means, so a psychopathic system will treat persons as means and not ends.

**************************************************************************

Can a belief be forced on a person?

Unfortunately, it can, but only if that person has been prepared or is very young, but anyone who can reflect on their beliefs could change them and therein  lies an issue, what if they cannot?  What if the authority imposing the belief is too strong?  What if the belief comes from God?

Is it ethically right to force a belief on a person?  It can be, in some cases, but we are talking of young children and this forcing can only be done if the values are good, that is, in alignment with empathy, and with the intention of getting the children to reflect on the values imposed and be given as much information as possible about the value and about rival and complementary values.  This should not be attempted on adults as empaths should not be treated as merely means and will have no effect on psychopaths, so in the former case it is unethical, and likely to be ineffective, and in the latter case just ineffective.

*************************************************************************

Although I said previously that judgement would be discussed in this post, I shall leave if ro another time.

Before I started his post, I came across his question in Quora:

“Why are we taught the moral values like honesty, trust, respect, ethics, justice etc. when there is no rule of nature. Most of the times criminal gets away after committing crimes (even when they are of inhumane nature) and innocent suffers?”

https://www.quora.com/Why-are-we-taught-the-moral-values-like-honesty-trust-respect-ethics-justice-etc-when-there-is-no-rule-of-nature-Most-of-the-times-criminal-gets-away-after-committing-crimes-even-when-they-are-of-inhumane-nature-and?__filter__=18&__nsrc__=1&__sncid__=7414371518&__snid3__=11155451512

I wrote the following as a reply:

“I would like to give an answer to your question, which from your tone appears to be very personal and, out of respect, requires a serious, if short, answer.

Firstly, is there no rule of nature?  The vast majority of humanity are empathic, that is, to put it glibly, they do care about moral values, as it is in their nature to care. Without empathy, there is no generosity to strangers, no justice, no society and no civilisation. There are humans that have no empathy, being either born that way or being brutalised from experience. The latter people can be brought back to their natural state (perhaps not easily, perhaps never). The former cannot and they could not survive without us empaths; they are parasitic upon us. Unfortunately, they are equipped by their own nature, to turn our empathy against us, to get to positions of political or moral power and so corrupt our moral values, values that have been built on our empathy. They can even rig our political and moral systems.

Depending on the circumstances, it may well be that criminals as you term them (that is, those without empathy) are able to commit their crimes and the innocent do suffer, but as long as persons like you realise that such a situation is the norm, then in the long term, justice will prevail.

I can only hope that you can persuade enough other people to see that justice not only does matter, but can be achieved and become the norm, as it should be.

As to why are we taught moral values, then there are a few answers. One of them is have a common set of values, another is to have values that we can reflect on to see if they are, in some sense the best, and another is to train us in the use of the values, so they can be applied respectfully and effectively.“

[Other replies are available.  Please see site.]

As I stated, the above was a short answer.  I stand by the claim that “[t]he vast majority of humanity are empathic … as it is in their nature to care. Without empathy, there is no generosity to strangers, [no altruism], no justice, no society and no civillisation”.

I had better explore some of what I have claimed.  Empathy, here and throughout all posts, unless stated otherwise, follows the general definition of the ability to identify with or understand another’s (typically a person or a group of persons) situation or feelings and the intellectual identification of the thoughts, feelings, or state of another person.  I do not use the term to project my own feelings to an object, that is, to a never living being.  Once (at least, think) you understand then the next stage is to care, if you don’t already care as a direct part of empathy.  Care can be synonymous with compassion and is the basis of altruism.  Altruism is deliberate benevolence towards others and quite impossible without understanding the needs of others (part of empathy); it has to be to that other’s benefit, perhaps at a loss to one’s self in some fashion.  Justice, will be defined for our purposes as quite simply doing the right thing for each person, as this does no violence to the concept, and that justice needs an entire essay to itself, but does arise from empathy (even if it is now independent from empathy, it still starts from empathy).  Without justice, there is no society, there is perhaps a family bound together by (a mutual) love or a gang bound by fear of the leader and the selfish hope of individual gain.  Without society, then civilisation cannot exist as only an ordered band of people. could co-operate to build such.

I claim that there are two groups who have no empathy.  One broad group would be those whose empathy has been impaired, but who can have their empathy revived or restored “(perhaps not easily, perhaps never)” and, though not naming them as such, psychopaths, who “could not survive without us empaths; they are parasitic upon us”.  When you consider the above paragraph, psychopaths lack the very building block required to have altruism, etc.  I consider here that psychopaths require empathically-normal persons’ altruism to survive, to be allowed to be a part of a society or a civilisation.  As I said they could form gangs or live within a family’s love, but societies are better than families at organisation and are larger.

I have now mentioned love a couple of times and must consider it here.  The love I am talking about is the natural affection felt within families.  This appears in parallel with empathy and again is missing from the psychopath.  It appears to be separate from empathy and may be a rival, so that your family may be placed ahead of strangers, which can be a source of moral conflict.  For example, suppose your brother had killed another person, who now has a grieving family, do you deliver your brother to the authorities for trial and punishment or do you protect him from that fate?  I shall set that aside for now and return to the point in a later post.

“Unfortunately, [psychopaths] are equipped by their own nature to turn our empathy against us”

, to get to positions of political or moral power and so corrupt our moral values, values that have been built on our empathy. They can even rig our political and moral systems.”

Can a belief be forced on a person?  Is it ethically right to do so?

judgement

An Attempt to Control ‘Psychopaths’: One Possible Origin of Religion and Why that Attempt Did Not Work Part 6

I was not happy with this post, feeling that I did not explain all that I could nor did I cover some points I should have.  All additions and corrections are in red.

In this post, I want to cover values, virtues and vices, intentions and outcomes with a less brief look than earlier at virtue ethics and divine command ethics and a summary of my notions on ethics.  With this, the very short excursion into ethics will end.

Ethics is a vast area, and we have barely crossed its borders, but a least some knowledge of it is required when tackling issues of social and political philosophy.

We defined values earlier on and, for the purposes of these posts, virtues can be defined as good values and vices as bad values, leaving aside for the time being any definition of good and bad.  It may be that there is no absolute good nor absolute bad.  I think that we, as rational creatures, are working towards definitions of good and bad, but that we may never reach such definitions.  We have definitions of relative goodness and relative badness.  An issue to highlight is that what may seem to me to be obviously good is bad to someone else.  As an example, according to most Abrahamic religious traditions, it is quite clearly a  bad thing not to believe in the Abrahamic God (or rather a version from Judaism, from Protestant, Catholic or Orthodox Christianity, or from Islam) and that any and all non-believers will be eternally punished for non-belief.  This conviction (that is a value) has often led to a further conviction (an additional value) that is it good to save people from that punishment by forcing such a belief (in God) onto other people, and this has led to some of the most disgusting crimes perpetrated on humanity, such as genocide.

Can a belief be forced on a person?  Is it ethically right to do so?  These two questions will be dealt with in the next post.

We have had a brief look at Virtue Ethics before, but need to have a more in-depth look.  From the above, virtue ethics is about acquiring or (already) possessing good values and their use and the way of living derived from them.  Virtues are seen as your character and will be the way you behave.  There is no Vice ethics (that I have heard of) as living a way of life based on bad values is thought to be highly implausible if not impossible by advocates of virtue ethics.  In the Western world, virtue ethics is on a revival and has been since the middle of last century.  It is, however, an ancient form and is embedded in many cultures all over the world.  The Western world’s main types are based on Aristotle, sometimes Plato or on modern thinkers who reject what the ancients claimed as virtuous, but accept the idea of ethical behaviour springing from the possession of modern virtues.  ‘Virtue Ethics’, edited by Roger Crisp and Michael Slote is both a good introduction and an in-depth critique of virtue ethics.  It will give an excellent introduction to modern western virtue ethics as well as some c50challenging works.

Also, it is possible that what is a vice to one person is a virtue to another, and the possession of a vice may not be recognised as such.  An amusing illustration can be seen where comedians David Mitchell and Robert Webb performed a sketch as SS officers, and Mitchell’s character has noticed that his cap badge is a sh=kull, prompting him to ask of Webb, “are we the baddies” (see https://www.youtube.com/watch?v=hn1VxaMEjRU)?

The preceding does highlight the relativity of values.  And this relativity of values underpins the notions of moral and cultural relativity.  Moral and cultural relativity are two major problems as any and all moral codes and cultures are counted as equals.  In practical terms, people who are part of one culture (whether they want to be or not) will be treated as how a member of that culture is supposed to be treated, for example, if a woman transgresses the moral code of certain cultures, her life is forfeit.

 Also, there is the possibility, it may seem, that virtues can be used in the service o0f bad causes.  I courage is a virtue (and I have yet to see anyone argue it is not), can it be denied that Spartan Hoplites had courage, yet served one of the most ruthless, nastiest regimes ever.  Virtue ethicists do have arguments covering these sorts of issues and often speak of incontinence, while others will deny that the Spartan Hoplites truly had courage.  I consider this a weakness in virtue ethics.

It is possible that there is only one set of universal values, but this poses the issue of what they are.  Various virtue ethics systems have tried to come up with a complete set without there being (a complete) agreement between them, suggesting, perhaps, there is no such set.  Also, it should be emphasised that could the possession of what appears to be a virtue not be a hindrance to action in certain circumstances.  Take two values that can be considered contradictory but each of which would have its supporters as virtues; obedience to (true) authority and independence of mind.  Both have drawbacks.  The first requires a judgement of what or who is the authority to obey, and the second can prevent action that is beneficial to the community.  If, say, you were very independent-minded and you came across a coach crash, and there were casualties, and already one person had placed him/herself in charge, would you really disobey the person’s order to call for an ambulance?  Is it more virtuous to obey or be independent-minded?

To me, I would think this would require judgement (or perhaps merely guesswork) and is a whole big new issue to be dealt with in the next post.

To have a complete list of virtues raises many questions, and one of these is how many virtues are there?  To which the reply might (flippantly) be, how long is a piece of string?  Could there be dozens, hundreds, thousands even?  Virtue ethicists have considered this, of course, and often see this as a weakness in their systems and have tried to limit the number (possibly ending up with a dogmatically held list, or with missing virtues) or have considered there to be fundamental and derived virtues, that is, some are primary virtues with others being secondary or tertiary (or nth derivative), derived from the primary.

As rational beings are complex, I can see no issue with an open-ended list of virtues.

I do have a concern with the use of single words or short phrases (call them simple descriptions) being used to describe complex concepts.  Often we think we know what the simple description means, but the actual concept may be subtly or even very unlike the actual concept intended.

 As an example, well-being is often the simple description used by virtue ethicists, but this is actually quite complex and to appreciate this, please see https://plato.stanford.edu/entries/well-being/ for a discussion of well-being in the Stanford Encyclopedia of Philosophy.

A difficulty I have with virtue ethics, in general, is that virtues are internal, that is, in the character (part of the mind) of the holder and, as such, cannot be seen.  What can be seen are the actions of a person and from these actions we can (supposedly) infer what virtues are held.  I have another difficulty here in that the possession of different values could produce the same actions.  The intentions, that is what are our motives for actions, cannot be seen by others (we are the only witness) and can only be inferred from our actions.

Some people see the provision of morals as the purpose of religion; they want a set of values that are imposed on at least the group s/he belongs to and often on the whole of humanity.  This is, rather simply, divine command theory and is as ancient a type of ethics as virtue ethics.  To disobey divine commands is either implicitly or explicitly to defy the will of the divine commander (usually with horrendous punishments for doing so).  I will suggest this is an attempt to keep psychopaths in line as in the case of simple religion in Part one with the same consequences as before, only worse as a complex religion will generally have more significant numbers of people following it.  For the non-psychopath, values stop being lived that is active values cease to be treasured and defended and explained and reflected upon and rejected and transferrable and become dogmas to be followed blindly and without reflection (in this I follow the lead of JS Mill in his discussion of holding live opinions in ‘On Liberty’).  To the psychopath, the supposed target of these, they instead become weapons to be used.  Further, as these are divine commands, they can be interpreted by the clergy for their own ends and this could include bad deeds, such as having people killed for possession of the ‘wrong’ values.

I hope I have briefly demonstrated the danger of such an approach and will expand on it further in subsequent posts.

To conclude this post, I will just give some of my notions about ethics.  This is nothing as grand as a system but merely notes.  None of it is original; all of it is borrowed even if I no longer remember from whom.  I think I need to set it out.

Firstly, we are born with instincts and dispositions, and, if we are not psychopaths, with empathy.  The instincts will include such things as are needed for self-survival.  They will include instincts which give us our self-worth, without which, and in combination with our empathy, we would not value others.

Empathy is an instinctive value.  It may need practice to use it, but it is instinctive.

Altruism is one of our added values (but we are disposed to have it), but can only arise if we have empathy, and is needed for the kind of social animal that we, as primates, are, and it further allows us to build constructive relations with other groups in simple societies and to build complex ones.  It does also mean that such societies can be exploited by psychopaths by them mimicking what is required by members of these societies.  Empathy and altruism cancel out selfish values (even instinctive values) and take us beyond them.

We add values, using empathy and reason (and other instincts and disposed values) through passive learning, active education (by one’s own efforts and by those of your family, friends, society and religious groups among other individuals and institutions) and by reflection on values already held or proposed by someone else.  Values can be imposed and this may be benign in the case of young children or malignant in the case of imposing (say) racist values.

I have an instrumental approach to the main theories, taking what I think is useful from them.  From Kant, the maxim that people should be treated as ends in themselves and not merely as means to an end is one to be followed, but I think derives from empathy anyway.  His notion of duties is very instructive in instructing what you should do, if you do not know

I was not happy with this post, feeling that I did not explain all that I could nor did I cover some points I should have.  All additions and corrections are in red.

In this post, I want to cover values, virtues and vices, intentions and outcomes with a less brief look than earlier at virtue ethics and divine command ethics and a summary of my notions on ethics.  With this, the very short excursion into ethics will end.

Ethics is a vast area, and we have barely crossed its borders, but a least some knowledge of it is required when tackling issues of social and political philosophy.

We defined values earlier on and, for the purposes of these posts, virtues can be defined as good values and vices as bad values, leaving aside for the time being any definition of good and bad.  It may be that there is no absolute good nor absolute bad.  I think that we, as rational creatures, are working towards definitions of good and bad, but that we may never reach such definitions.  We have definitions of relative goodness and relative badness.  An issue to highlight is that what may seem to me to be obviously good is bad to someone else.  As an example, according to most Abrahamic religious traditions, it is quite clearly a  bad thing not to believe in the Abrahamic God (or rather a version from Judaism, from Protestant, Catholic or Orthodox Christianity, or from Islam) and that any and all non-believers will be eternally punished for non-belief.  This conviction (that is a value) has often led to a further conviction (an additional value) that is it good to save people from that punishment by forcing such a belief (in God) onto other people, and this has led to some of the most disgusting crimes perpetrated on humanity, such as genocide.

Can a belief be forced on a person?  Is it ethically right to do so?  These two questions will be dealt with in the next post.

We have had a brief look at Virtue Ethics before, but need to have a more in-depth look.  From the above, virtue ethics is about acquiring or (already) possessing good values and their use and the way of living derived from them.  Virtues are seen as your character and will be the way you behave.  There is no Vice ethics (that I have heard of) as living a way of life based on bad values is thought to be highly implausible if not impossible by advocates of virtue ethics.  In the Western world, virtue ethics is on a revival and has been since the middle of last century.  It is, however, an ancient form and is embedded in many cultures all over the world.  The Western world’s main types are based on Aristotle, sometimes Plato or on modern thinkers who reject what the ancients claimed as virtuous, but accept the idea of ethical behaviour springing from the possession of modern virtues.  ‘Virtue Ethics’, edited by Roger Crisp and Michael Slote is both a good introduction and an in-depth critique of virtue ethics.  It will give an excellent introduction to modern western virtue ethics as well as some c50challenging works.

Also, it is possible that what is a vice to one person is a virtue to another, and the possession of a vice may not be recognised as such.  An amusing illustration can be seen where comedians David Mitchell and Robert Webb performed a sketch as SS officers, and Mitchell’s character has noticed that his cap badge is a sh=kull, prompting him to ask of Webb, “are we the baddies” (see https://www.youtube.com/watch?v=hn1VxaMEjRU)?

The preceding does highlight the relativity of values.  And this relativity of values underpins the notions of moral and cultural relativity.  Moral and cultural relativity are two major problems as any and all moral codes and cultures are counted as equals.  In practical terms, people who are part of one culture (whether they want to be or not) will be treated as how a member of that culture is supposed to be treated, for example, if a woman transgresses the moral code of certain cultures, her life is forfeit.

 Also, there is the possibility, it may seem, that virtues can be used in the service o0f bad causes.  I courage is a virtue (and I have yet to see anyone argue it is not), can it be denied that Spartan Hoplites had courage, yet served one of the most ruthless, nastiest regimes ever.  Virtue ethicists do have arguments covering these sorts of issues and often speak of incontinence, while others will deny that the Spartan Hoplites truly had courage.  I consider this a weakness in virtue ethics.

It is possible that there is only one set of universal values, but this poses the issue of what they are.  Various virtue ethics systems have tried to come up with a complete set without there being (a complete) agreement between them, suggesting, perhaps, there is no such set.  Also, it should be emphasised that could the possession of what appears to be a virtue not be a hindrance to action in certain circumstances.  Take two values that can be considered contradictory but each of which would have its supporters as virtues; obedience to (true) authority and independence of mind.  Both have drawbacks.  The first requires a judgement of what or who is the authority to obey, and the second can prevent action that is beneficial to the community.  If, say, you were very independent-minded and you came across a coach crash, and there were casualties, and already one person had placed him/herself in charge, would you really disobey the person’s order to call for an ambulance?  Is it more virtuous to obey or be independent-minded?

To me, I would think this would require judgement (or perhaps merely guesswork) and is a whole big new issue to be dealt with in the next post.

To have a complete list of virtues raises many questions, and one of these is how many virtues are there?  To which the reply might (flippantly) be, how long is a piece of string?  Could there be dozens, hundreds, thousands even?  Virtue ethicists have considered this, of course, and often see this as a weakness in their systems and have tried to limit the number (possibly ending up with a dogmatically held list, or with missing virtues) or have considered there to be fundamental and derived virtues, that is, some are primary virtues with others being secondary or tertiary (or nth derivative), derived from the primary.

As rational beings are complex, I can see no issue with an open-ended list of virtues.

I do have a concern with the use of single words or short phrases (call them simple descriptions) being used to describe complex concepts.  Often we think we know what the simple description means, but the actual concept may be subtly or even very unlike the actual concept intended.

 As an example, well-being is often the simple description used by virtue ethicists, but this is actually quite complex and to appreciate this, please see https://plato.stanford.edu/entries/well-being/ for a discussion of well-being in the Stanford Encyclopedia of Philosophy.

A difficulty I have with virtue ethics, in general, is that virtues are internal, that is, in the character (part of the mind) of the holder and, as such, cannot be seen.  What can be seen are the actions of a person and from these actions we can (supposedly) infer what virtues are held.  I have another difficulty here in that the possession of different values could produce the same actions.  The intentions, that is what are our motives for actions, cannot be seen by others (we are the only witness) and can only be inferred from our actions.

Some people see the provision of morals as the purpose of religion; they want a set of values that are imposed on at least the group s/he belongs to and often on the whole of humanity.  This is, rather simply, divine command theory and is as ancient a type of ethics as virtue ethics.  To disobey divine commands is either implicitly or explicitly to defy the will of the divine commander (usually with horrendous punishments for doing so).  I will suggest this is an attempt to keep psychopaths in line as in the case of simple religion in Part one with the same consequences as before, only worse as a complex religion will generally have more significant numbers of people following it.  For the non-psychopath, values stop being lived that is active values cease to be treasured and defended and explained and reflected upon and rejected and transferrable and become dogmas to be followed blindly and without reflection (in this I follow the lead of JS Mill in his discussion of holding live opinions in ‘On Liberty’).  To the psychopath, the supposed target of these, they instead become weapons to be used.  Further, as these are divine commands, they can be interpreted by the clergy for their own ends and this could include bad deeds, such as having people killed for possession of the ‘wrong’ values.

I hope I have briefly demonstrated the danger of such an approach and will expand on it further in subsequent posts. To conclude this post, I will just give some of my notions about ethics.  This is nothing as grand as a system but merely notes.  None of it is original; all of it is borrowed even if I no longer remember from whom.  I think I need to set it out.

Firstly, we are born with instincts and dispositions, and, if we are not psychopaths, with empathy.  The instincts will include such things as are needed for self-survival.  They will include instincts which give us our self-worth, without which, and in combination with our empathy, we would not value others.

Empathy is an instinctive value.  It may need practice to use it, but it is instinctive.

Altruism is one of our added values (but we are disposed to have it), but can only arise if we have empathy, and is needed for the kind of social animal that we, as primates, are, and it further allows us to build constructive relations with other groups in simple societies and to build complex ones.  It does also mean that such societies can be exploited by psychopaths by them mimicking what is required by members of these societies.  Empathy and altruism cancel out selfish values (even instinctive values) and take us beyond them.

We add values, using empathy and reason (and other instincts and disposed values) through passive learning, active education (by one’s own efforts and by those of your family, friends, society and religious groups among other individuals and institutions) and by reflection on values already held or proposed by someone else.  Values can be imposed and this may be benign in the case of young children or malignant in the case of imposing (say) racist values.

I have an instrumental approach to the main theories, taking what I think is useful from them.  From Kant, the maxim that people should be treated as ends in themselves and not merely as means to an end is one to be followed, but I think derives from empathy anyway.  His notion of duties is very instructive in instructing what you should do if you do not know from instincts or such phenomena as love, friendship, etc. I do think people should be acquiring virtues, but, as you can only see actions and not intentions, remain a form of consequentialist.

I regard various forms of utilitarianism as useful filters for judging what to do, where it is not clear. Firstly, apply reverse utilitarianism, that is what causes the least misery.

Queen’s Speech and the Assault on Liberty

[Please see https://www.opendemocracy.net/en/opendemocracyuk/boris-liberal-dead-boris-authoritarian-reigns-supreme/?utm_campaign=Weekly%20flagship%20newsletter%20%28Week%2018%2C%202021%29%20%28RHC4Rs%29&utm_medium=email&utm_source=Newsletter%3A%20oD%20weekly&_ke=eyJrbF9jb21wYW55X2lkIjogIllqQ1l3bSIsICJrbF9lbWFpbCI6ICJ0aGVyZWFsbWpyMjQ3QGdtYWlsLmNvbSJ9%5D

There are a number of points in the Queen’s Speech which are of constitutional importance and lean against democracy. I do not regard the UK as a democracy for a number of reasons, but do see it as potentially one. The UK government’s proposed measures take the UK further away from democracy.

Firstly there is a bill to have photographic evidence in order to vote at a UK general election. Reasons have been given that are not based on evidence, but are claimed to strengthen democracy. The main reason given is to counter a type of fraud known as personation, or claiming to be someone you are not as you try to vote; current protections against this are more than adequate. The effect is that anyone without photographic identification will be excluded. Democracy, as based on the principles of humanitarianism and equalitarianism, is a system to include all living inside a territory (of a state or of a city; indeed any locality) or who can claim attachment to that territory, without discrimination. This proposal to exclude is therefore anti-democratic.

[Equalitarianism here means equality before the law; it can be seen as part of egalitarianism, or as separate. As it stands this proposal would exclude millions of voters, mainly young ones and those from ethnic minorities.]

Secondly, the Police, Crime, Sentencing and Courts Bill is against the legitimate and the necessary right to protest and “threatens to criminalise protesters who are noisy, disruptive or even ‘annoying’, while effectively outlawing Gypsy, Roma and Traveller communities’ way of life” (see openDemocracy’s report above). The separate legal systems of Scotland and Northern Ireland mean that this Bill should it become an act will not apply over the whole UK, but the bulk of the UK’s popation will be affected. As above, it is also unnecessary as illegitimate protest is already covered by other laws. Further, it makes the police responsible for deciding what is legitimate protest and thus making them make law rather then follow it as a police force should do.

“The government’s plans for immigration … [propose] a system that ties people to their employers, is unresponsive to labour needs within the economy and shuts out working-class migrants” (see openDemocracy report). Clearly the first and third effects are anti-democratic; the first comes close to slavery and the third violates humanitarianism and equalitarianism. The second is mostly foolish and, taken with the third, effectively harms the economy of the UK and thus is against the interests of the people of the UK.

The proposed asylum policy is quite possibly illegal under international, but is at best highly discriminatory seeking to prevent most refugees routes into the UK. Yet again the humanitarian element necessary for democracy is violated.

The Judicial Review Bill aims to curb the current right of ordinary citizens to challenge the government by recourse to law. Laws are necessary in a democracy and this will give the government the right to ignore whichever laws do not suit them.

The Queen’s Speech 2021

The Queen’s Speech is a UK ceremony that occurs for the opening of sitting of the UK Parliament. This speech is actually the UK government using the monarch as a mouthpiece to state what its programme of legislation is intended to be for the coming session. The monarch has (supposedly) no input, but merely recites the lines put before her.

[I have said supposedly above as this is the government’s list of actions, and by convention the monarch has no say. The vague UK constitution would actually allow the monarch to interfere. I have two objections to this ceremony. Firstly as it is the government’s programme, the Prime Minister as head of the executive should read it out and secondly, there should be no monarchical power, but only power wielded through elected means]

The speech analysed below is from Tuesday 11th May 2021 and is found in full at https://www.gov.uk/government/speeches/queens-speech-2021.

[I would recommend John Crace’s article at https://www.theguardian.com/politics/2021/may/11/the-queens-a-class-act-but-the-bills-she-has-to-read-out-are-not?utm_term=62d76ba0ad428fbd729a6cadebde17fe&utm_campaign=GuardianTodayUK&utm_source=esp&utm_medium=Email&CMP=GTUK_email.%5D

Various commentators have had concerns not just with the proposals but with omissions.

The first two paragraphs are quite broad and vague and thus impossible to disagree with.

In the third the “[g]overnment [says it] will protect the health of the nation, continuing the vaccination programme and providing additional funding to support the NHS”, but not from where this funding shall come. Previously, when the NHS has needed funding to even maintain its then current level of service, it has been ordered to either make do with what it had or even to make cuts that negatively affected its level of service, as it was said there no possibility of further funding.

The third paragraph continues with “Ministers will bring forward legislation to empower the NHS to innovate and embrace technology”. There is no current legislation to stop the NHS from innovation and embracing technology; there is lack of funding.

“Patients will receive more tailored and preventative care, closer to home [Health and Care Bill]. Measures will be brought forward to support the health and wellbeing of the nation, including to tackle obesity and improve mental health. Proposals on social care reform will be brought forward”. See https://www.kingsfund.org.uk/blog/2021/05/health-and-care-bill for a careful, if potted, analysis. Its main obstacle appears to be that health and socdial care workers do not see it as workable.acIn the fourth paragraph it is claimed that because of “the success of the vaccination programme”, where that success has ben due to the NHS and not to the government, the UK will “lead the world in life sciences, pioneering new treatments against diseases like cancer and securing jobs and investment across the country”, which rather ignores the facts that the efficacious vaccines were either developed abroad or, if in the UK, by a multi-national workforce, that is, of people that this current government has tried to make felt unwelcome in the UK and that success in the implementation of a vaccine does not make for a success in any other area of life sciences.

“My Ministers will oversee the fastest ever increase in public funding for research and development and pass legislation to establish an advanced research agency [Advanced Research and Invention Agency Bill]”. This again lea the governemtves a question of funding unanswered.

“Following the unprecedented support provided to businesses during the pandemic, proposals will be brought forward to create and support jobs and improve regulation”. As the UK’s Trade Unionists (see https://www.tuc.org.uk/news/tuc-government-has-rowed-back-promise-boost-workers-rights) point out this is not the same as boosting workplace rights; rights which used to be the worst in the EU and amongst the worst in the Western world.

“My Government will strengthen the economic ties across the union, investing in and improving national infrastructure. Proposals will be taken forward to transform connectivity by rail and bus [High Speed Rail (Crewe – Manchester) Bill] and to extend 5G mobile coverage and gigabit capable broadband [Product Security and Telecommunications Infrastructure Bill]” This government shows more concern with improving services in their newly acquired (from the previous general election) seats in the north and midlands of England, than in Scotland which rejected this government. Now that the Scottish parliamentary and Welsh Assembly elections have been a heavy for the government, will we see more or less investment for Scotland and Wales? Again, there is little mention of funding and even less of how such policies show commitment to reducing global warming.

“Legislation will support a lifetime skills guarantee to enable flexible access to high quality education and training throughout people’s lives [Skills and Post-16 Education Bill]” This is criticised in https://www.tuc.org.uk/news/tuc-government-has-rowed-back-promise-boost-workers-rights for failing to address actual needs.

“Measures will be introduced to ensure that support for businesses reflects the United Kingdom’s strategic interests” although we are not told what these are. “Laws will simplify procurement in the public sector [Procurement Bill]” sees astounding in the light that in the past few months a simplified system was used to either fail to deliver required goods and services or to deliver substandard ones at a cost greater than could be had by the previous system which monitored procurement. “Eight new Freeports will create hubs for trade and help regenerate communities [National Insurance Contributions Bill]” may well be the intention, but freeports rarely do and https://phys.org/news/2021-05-freeports-hubs-centres-money-laundering.html is only the latest in a long line of study of freeports that show this is so and point out that the lack of regulation can lead more easily to smuggling and money laundering.

“My Government will ensure that the public finances are returned to a sustainable path once the economic recovery is secure” seems to hint at a return to Austerity, that is where the most economically vulnerable in society are expected to live on less.

Much in the following paragraphs, it is difficult to disagree with as it is so vague. It is as if peopl had been asked what is desirable, but not asked how it will be achieved. I will look at only some brief points.

“Legislation will also be brought forward to ensure the United Kingdom has, and promotes, the highest standards of animal welfare [Animal Welfare (Sentience) Bill, Kept Animals Bill, Animals Abroad Bill]”. Most people would concede that the UK used to be in the vanguard for the welfare of domesticated animals when in the EU, but the detail is missing on how he UK will able to compete in meat and dairy products with nations that ignore such welfare, such as the USA.

“My Government will strengthen and renew democracy and the constitution. Legislation will be introduced to ensure the integrity of elections, protect freedom of speech and restore the balance of power between the executive, legislature and the courts [Electoral Integrity Bill, Higher Education (Freedom of Speech) Bill, Judicial Review Bill, Dissolution and Calling of Parliament Bill]. My Ministers will promote the strength and integrity of the union. Measures will be brought forward to strengthen devolved Government in Northern Ireland and address the legacy of the past [Northern Ireland (Ministers, Elections and Petitions of Concerns) Bill, Legacy Legislation]”. This will be the subject of a separate post.

“Legislation will increase sentences for the most serious and violent offenders and ensure the timely administration of justice [Police, Crime, Sentencing and Courts Bill]. Proposals will be brought forward to address violence, including against women and girls, and to support victims [Draft Victims Bill]. Measures will be brought forward to establish a fairer immigration system that strengthens the United Kingdom’s borders and deters criminals who facilitate dangerous and illegal journeys [New Plan for Immigration Legislation].” Again, this will be the subject of a separate post.

“The United Kingdom will … lead the global effort to secure a robust economic recovery from the pandemic”, that is, to, presumably, take the role that the EU, USA or PRO China will jointly take and “… will deepen trade ties in the Gulf, Africa and the Indo-Pacific” as will everyone else.

The claim that “[m]y Government will continue to provide aid where it has the greatest impact on reducing poverty and alleviating human suffering” must be quite sickening as the UK government has just cut the budget to levels that will have no impact. “My Government will uphold human rights and democracy across the world” also seems quite hollow. “It will take forward a global effort to get 40 million girls across the world into school”, but how as the overseas aid budget is now much reduced?.

Only a Joke? Dingos and Babies.

From news article https://www.theguardian.com/uk-news/2021/may/11/bbc-cuts-prince-andrew-joke-from-rupauls-drag-race?utm_term=62d76ba0ad428fbd729a6cadebde17fe&utm_campaign=GuardianTodayUK&utm_source=esp&utm_medium=Email&CMP=GTUK_email of The Guardian.

“Viewers of the original Australian broadcast [of Ru Paul’s Drag Race Down Under] saw performer Anita Wigl’it, dressed in full drag as the British monarch, ad-lib the comment: “I wish a dingo would have taken my baby, then I wouldn’t have anything to do with Prince Andrew any more.””

Now, Andrew Windsor is clearly an appalling human being and there is no need here to repeat what he has been accused of by both legal authorities and self-proclaimed victims. We need only mention that he has clearly lied in public about events that did happen.

Further, I should state that as a democratic republican and a humanitarian, I find the institution that is the British Monarchy to be abhorrent and offensive an an absolute affront to any mature society, especially to a supposedly democratic one. Here is the not the article to discuss this. In many ways, I find the person that is Elizabeth Windsor to be admirable, but I regard the office she occupies as an impediment to a democratic society and, even if the post of monarch is not abolished, then it needs to have its powers and privileges removed.

Do I take offence at Wigl’it’s joke? Yes, but not for any offence caused (or supposed by the BBC to have been caused to the UK’s Royal Family. I am offended by the idea that the violent death of an infant should be considered to be funny.

How should I react to the joke? And by this I mean how should a reasonable person who has had this joke reported to him and has not seen the actual routine (nor really intends to see the routine) react? I do not know the context of the joke; perhaps it was a piece of legitimate satire, perhaps a stupid thing to say and Wigl’it now regrets saying it. I would think ignoring this joke would be best and not placing Wigl’it high on my list of people I should wish to see. Unreasonable people will be taking to Twitter with hatred and mock offence. Many of these will be the same people who watch You’ve Been Framed, a programme whose staple seems to be infants getting hurt.

How should I react to the censorship? This joke has been removed from British edit, so it seems like censorship has been carried out. This is much more serious. As a mature human being, I do not like being told what I should or should not hear or see, even if it is something I would not look at nor watch.

[You’ve Been Framed is not a BBC programme.]

Farewell to Shirley Williams

“No man is an island,

Entire of itself;

Every man is a piece of the continent, 

A part of the main.

If a clod be washed away by the sea,

Europe is the less,

As well as if a promontory were:

As well as if a manor of thy friend’s

Or of thine own were.

Any man’s death diminishes me,

Because I am involved in mankind.

And therefore never send to know for whom the bell tolls;

It tolls for thee.”

John Donne’s poem (above) is a reminder, not only of mortality but of how to behave when faced with a stranger’s death, whether that person was known to you or not. Donne is concerned mostly with reaction to a stranger’s demise and in the past few days (this is Wednesday 14^th April 2021 CE), two strangers have been featured in the news. both were from the UK: one was important due to membership of an influential family. and the other actively sought to make the world a better place for the inhabitants.

One had a massive coverage in the media; the other less so.

I refer to Prince Phillip, Duke of Edinburgh and to Shirley Williams.

(As an egalitarian, I would prefer to not use non-earned titles, but to use the plain name is to perhaps misdirect. Also, the main reason for the over the top media interest is because of the titles.)

I all too often forget that “[a]ny [person]’s death diminishes me, [b]ecause I am involved in” humanity. Partially, because, announced death’s are of people who made a negative contribution to the commonwealth of humanity. Prince Phillip, despite many people who claim otherwise, despite the recorded evidence, was one such with his casual, apparently deliberate and calculated, racism and misogyny, among other bad traits. Whilst I can feel sympathy for his relatives; I can only feel indifference towards his death.

But enough of the Duke.

Shirley Williams was a political thinker, making an honest attempt to improve the lot of humanity. Born into relatively high privilege, she was an ally of the non-privileged. Once, as a member of the UK government, she travelled to Soviet-era Moscow on an official visit. She took her seat in second class and on arrival left the plane and was a bit surprised to not be greeted by any officials of the USSR. They were waiting at the VIP gate as they would have travelled that way. Another time, whilst also a government minister, she was removed from a picket line by police. She had been merely protesting with her Trade Union.

I have nothing further to add at this time, but would urge anyone to read one of her many obituaries.

Response to The Nightmare And The Noble Dream

This post is a response to a speech by the Lord Chancellor and Secretary of State for Justice of the UK, the Right Honourable Robert Buckland, Queen’s Counsel, Member of Parliament (of the UK). The speech is printed in full below and starts with quotation marks. My comments are inserted within and are marked off by use of braces (that is { and }) and by being italicised. The unamended full speech can be found at:

https://www.gov.uk/government/speeches/lord-chancellors-speech-law-and-politics-the-nightmare-and-the-noble-dream?utm_medium=email&utm_campaign=govuk-notifications&utm_source=d3dc5994-db8f-4e6e-9595-7de339ed2801&utm_content=daily

A description of the role of Lord Chancellor can be found at:

https://www.gov.uk/government/ministers/secretary-of-state-for-justice

and at:

https://www.parliament.uk/about/mps-and-lords/principal/lord-chancellor/

and at:

https://www.parliament.uk/site-information/glossary/lord-chancellor/ .

From the last URL, perhaps the most shocking aspect of the role for a democrat is to be found in the phrase: ‘The Lord Chancellor is appointed by the Monarch [my underline] on the advice of the Prime Minister’. The very idea that an important position in the rule of the people is not appointed by the people but by an unelected official is anti-democratic and raises the suspicion that the role is not intended to be a representative of the people. Indeed part of the role is to represent the judiciary and this would be acceptable for a democracy if it were the case that the appointment was made by the judiciary, but still held to be accountable to the people or to a parliament that is accountable to the people. There is another official that is the head of the judiciary, but that role will not be considered here.

“Lord Chancellor’s Speech: Law and politics – the nightmare and the noble dream

Speech delivered by the Lord Chancellor at the Queen Mary University Conference.

From:

Ministry of Justice and The Rt Hon Robert Buckland QC MP

Published:

25 March 2021

Delivered on:

25 March 2021 (Transcript of the speech, exactly as it was delivered)

{photograph removed}

Introduction and the role of the Lord Chancellor

Thank you, Richard [Johnson, School of Politics and International Relations, QMUL]. It’s a pleasure to join you and everyone online.

It has been claimed on various occasions, most recently by my friend and colleague the Lord President of the Council and Leader of the House of Commons that one expert on the constitution believes, and I quote, that it ‘has always been puzzling and always will be.’ I say quote because the expert in question is no less than Her Majesty the Queen. But I think I had better leave it there for the sake of well-known propriety. Let me start by saying how grateful I am to the School of Politics and International Relations for the invitation, and to Queen Mary University for the opportunity to speak today as we continue to puzzle over our constitution.

Now, those who are privileged to serve as Lord Chancellor have, I believe, a unique responsibility with regard to our constitutional arrangements. As part of the Executive, the Lord Chancellor naturally wants the government to be as effective as possible in delivering on its agenda – we should not apologise or be defensive about that in any way, it is what voters expect from their government frankly. But at the same time, the Lord Chancellor has an important – a vital – duty to protect the Judiciary, not just in the single jurisdiction of England and Wales, but throughout our United Kingdom.

{Agenda is, perhaps, an unfortunate word to choose. Modern usage tends to imply hidden meaning. An agenda suggests a hidden agenda; colloquial use, as in, ‘what is his/her agenda?’ is said when someone’s intentions are opaque, or it is not believed that the stated end is the intended end.

Agenda is, of course, intended to be a neutral word.

What, however, is the justification or mandate for the agenda? Before attempting an answer, I think some observations on what democracy is are called for. In a way, I hope these will be obvious and not controversial, but they may challenge other views of what other persons consider democracy. I will describe some significant observations, and I realise within some of these are further points.

Firstly, democracy is a form of governance, not merely a process for electing a government or one of a few processes for selecting a government. As a form of governance, that government (or the head of government) has to be democratically elected (and methods of election can also be more or less democratic in themselves) and, just as importantly, be willing to stand down when the vote has gone against them.

Secondly, to be democratic, governance aims are justice (in all forms, or at least political, social, educational, workplace and economic) and consensus. These aims apply to both direct and representative forms of democracy, and the hybrids of these. Voting in referenda is more like a reserve power to break disputes and should be used sparingly; citizen assemblies, aiming to find consensus, are to be preferred. I will leave justice as a fuzzy concept but say it applies to everyone and should aim at fairness (again, a fuzzy concept).

This leads to a third, a fourth and a fifth point. These are all connected, namely, responsibility, accountability and transparency. These are especially important in government leadership and all government positions for reasons that should need no explanation. Also, taken together, these imply honesty and openness.

Sixthly, democracy requires laws to be made, and a democratic government will rule by adhering to existing law and by changing laws to be more just. Government by debate and, if possible, not by force should be the aim.

Seventhly, in the light of the above and on the understanding that no one person or group, even if that group is the democratically elected government, has a monopoly on wisdom and therefore may enact or preserve an injustice. Hence, every person has a right to protest. There will be limits on the means of protest; murder, for example, will not count as legitimate protest, but being loud, public nudity, temporary obstruction of access to public or private spaces, graffiti and many other forms of protest will be candidates for legitimacy, and circumstances will determine their legitimacy.

There are further criteria to determine a democracy, but this brief list will be helpful.

Turning quickly to what is not democracy. Firstly, mere majoritarianism dismisses consensus and further may be unjust for other reasons.

Secondly, the tyranny arising from a claim that a historical decision is binding on not just future generations but even on current ones. For example, in the USA’s constitution, there is supposed ‘right to bear arms’, which, however necessary in the circumstances of its creation, now can be seen to be unjust.

I would now like to turn from political philosophy to current politics in the UK and briefly examine whether the UK does count as a democracy. Of course, there is the difficulty of how ideal is the above list and whether it can be applied to the real world, but standards are always somewhat ideal. The list of observations above I will take as principles and will use a few.

Although the UK has no written constitution, that is, a set of laws gathered into one document, it has various laws which taken together form a constitution. These laws are not all democratic; many were derived from monarchs or oligarchs’ enactments (House of Lords). That is not to say that all should be dismissed as unjust. The impracticality alone of dismissing them all would leave society with too few laws to have social cohesion. Some would have been arrived at by democratic means anyway, and it is possible to adopt them as democratic.

The primary point is that the UK still has undemocratic (even antidemocratic) elements in its constitution. As Bagehot, and others, pointed out in their time, the constitution was ‘mixed’ with monarchic, aristocratic (oligarchic) and democratic elements. This remains true today, although with different weights now given to each component than earlier, however, important powers are retained by the monarch and by the House of Lords; powers that should be only wielded by elected officials, as these are powers to alter or reject laws.

As democracy aims at justice, there needs to be a just system of election to office, and again, the UK fails. It has an electoral system, where an MP is elected by a system that can place a political party in charge by giving it a considerable number of seats even if it receives less than half the total number of votes cast, that is, it gains an influence out of all proportion to its popularity.

We can now turn to ‘agenda’ again to ask what is meant. One answer is that it is the manifesto pledges made when a party is trying to be elected or a programme created by the circumstances the government finds itself in. The policies from either source may not be those the electorate or significant numbers of public wishes to see.

The claim that “what voters expect from their government” is for“the government to be as effective as possible in delivering on its agenda” is wrong. Much of the agenda may be rejected by most of the electorate.}

For instance, the Lord Chancellor retains the power to determine the remuneration of specified judicial offices in Scotland and Northern Ireland, the rationale being that this goes to the unique constitutional position of the Lord Chancellor and their duty to uphold the independence of the Judiciary throughout the UK – without compromising, of course, the integrity of those three separate and historic jurisdictions. The Lord Chancellor’s role is also to champion those aspects of the three different legal systems that they share in common, namely an excellent Judiciary and a top-quality legal profession; to promote the value of the UK justice system on the global stage and the values that have made it such a success. So, the Lord Chancellor is therefore very much a UK-wide role.

As our system continues to evolve to serve the needs of our citizens, as it has over many centuries, the delicate balance between our institutions and the ways in which they interact between the nations of the United Kingdom inevitably requires fine tuning. The Lord Chancellor has a vital role to play in carrying out that work and, as the current holder of the office, I am taking forward a series of reviews to examine the balance in different contexts. As you will know, last year I set up the Independent Review of Administrative Law. And I am pleased to say that the Panel has produced a fine report, which analysed the trends seen in judicial review over the previous decades, as well as evaluating the diverse views that are held about them. And a week ago, I launched a consultation outlining my proposals for reform which emanate from the Panel’s recommendations.

“As our system continues to evolve to serve the needs of our citizens,” contains a bold claim, namely to serve the needs of citizens. Two questions spring to my mind: What are the needs? Who are the citizens?

Although, as can be inferred from my previous comments, I agree that the political system will evolve, I think that the evidence shows that the political system is currently evolving to suit the needs of only a small proportion of the citizens of the UK. For example, both absolute and relative poverty has risen in the UK since the banking crisis of 2008; bankers, who as a group, caused the crisis and also accidentally benefited from it. The Grenfell tower incident also shows that the needs of some citizens to live in a safe environment were considered less the needs of other (wealthier) citizens to have a pleasant view. Even very recently, the TUC of the UK reports that ‘1 in 3 key workers earn less than £10 an hour’ (31/03/2021). Many other examples could be given of injustice allowed by the political system, that is of the needs of the citizens being unfulfilled.

As the talk here is of evolution, I have assumed that Darwinian evolution is the process discussed. Darwinian evolution is the most important scientific theory to be used outside of science and applied to non-scientific areas of human endeavour, such as philosophy. An important aspect of Darwinian natural evolution is its non-directionality, that is there is not an intelligence or other agency to guide development. An organism evolves due to ‘evolutionary pressures’ found in its environment; political systems are not entirely natural in their evolution as there is intelligent direction, but that direction may make the system, for example, more democratic, more anarchic or more autocratic.

Also political systems may be developed to meet the needs of non-citizens, for example, for refugees or migrant workers. There are also considerations to be made for those who live in the territory claimed by the state, such as Roma or Travellers, and aboriginal peoples.}

The ongoing Independent Review of the Human Rights Act chaired by Sir Peter Gross that was established earlier this year recently held a call for evidence, as many of you will know. Now, that review is concerned with the operation of the various aspects of the Human Rights Act and I look forward to reading the Panel’s report, so that the government can consider how to respond.

Finally, I want to examine the role of the Lord Chancellor itself, in the context of the Constitutional Reform Act of 2005. Now, the Act brought in some sensible reforms, such as a greater degree of transparency in judicial appointments, but there are strands that are worth examining – to ensure that they have kept pace with the developments and continue to provide the appropriate framework for the Lord Chancellor to exercise their duties in respect of our constitutional arrangements. We are still in the early stages of that thinking and I am clear that I want to consider these matters in an open and consultative way. I look forward to talking about this in more detail in due course, but I do think there are elements that feed into the specifics of what I want to talk about today and that are worth considering first.

In the days when the Lord Chancellor was not only a Parliamentarian and a Cabinet Minister, but also sat on the bench and appointed all their judicial colleagues, the role was often described as a ‘linchpin’ that linked all three branches of the state and managed the relationships between them. itNow Walter Bagehot was somewhat unimpressed with this arrangement, describing the role as ‘a heap of anomalies’. My predecessor, Ken, now Lord Clarke, said the role was difficult to explain to people in other political systems as it ‘sounded like something… made up’. The only other Lord Chancellor to have hailed from my home town of Llanelli, Lord Elwyn-Jones, described it perhaps as only he could in a more kindly way as, and I quote, ‘an object of wonderment and perplexity’.

The Lord Chancellor today

As you will know, the Constitutional Reform Act of 2005 made sweeping reforms to the office of Lord Chancellor, the extent of which was brought home to me when on assuming office in 2019 I was obliged to resign my position as a Recorder of the Crown Court, a part-time judge.

The Act aimed to answer questions about separation of powers, but the reality is that we do not have a perfectly neat and defined separation of state powers – and I say amen to that. As a Tory, I accept and I embrace the imperfections of the human condition and indeed of government. Now, instead we have a system which is based on checks and balances. By changing the role of the Lord Chancellor in the ways that the previous government did – remaining as part of the Legislature and the Executive but no longer the Judiciary – we have lost the sense of the office being the linchpin between all three that I mentioned just a few moments ago.

“I accept and I embrace the imperfections of the human condition and indeed of government.” This raises questions about human nature. Anyone who expects perfectibility in actual persons is, undoubtedly, going to be disappointed, but to “embrace” that imperfectability appears to be complacent. There are many modest ways to improve oneself from taking general knowledge quizzes or other puzzles, to gentle exercise, to striving towards openness, honesty and integrity, and many other other actions besides.

It is much more serious is to embrace the imperfections of government. The implication of placing human condition and government as above is that government is merely an extension of the human condition. This is not so. Government is dependent on their being a human condition, but does not follow that it must be like the human condition.

Government imperfections may include incompetence and corruption.}

It is worth reminding ourselves that contrary to regular commentary Parliament today is not in my view the supine body it has been at times. It is better informed by the way outside bodies interact with it; it is a stronger scrutinising body in my view certainly since the Tony Wright reforms; and more recently since 2016 it has demonstrated an ability to flex its muscles on issues of huge national importance. It is no longer the Victorian child, someone who is seen and not heard. The fact that Parliament frankly matters a lot more today and is more assertive than it once was, is to be celebrated in a healthy democracy such as ours. While it doesn’t necessarily make the day-to-day work of politics any more straightforward, I frankly very much value the effect that it has on our ability to make better law – for instance the kind of cross-party working we have seen on the Domestic Abuse Bill of late.

“Parliament today is not … [a] supine body” may be one view, but the current UK government is able to pass bills in the House of Commons that break international law, threaten the right to legitimate protest or harm the economy without complaint from the MPs of the same party as government. To many persons views, this is evidence of a supine Parliament.}

Since 2007 Lord Chancellors have been drawn from the House of Commons, which means that they are much more in the hurly burly of politics, with responsibilities amongst others for piloting legislation through the House – indeed just last week I made the closing arguments for the Government in the Second Reading of the Police, Crime, Sentencing, and Courts Bill. And at the same time as taking on all of these responsibilities on behalf of the Executive within the Legislature, the role of Lord Chancellor continues to demand that those who hold the office remain detached from partisan politics in their duty to defend the Judiciary.

Now, the one benefit to no longer themselves being a member of the Judiciary is that the Lord Chancellor is able to offer, shall we say, much more detached commentary in upholding their oath to defend it. This is particularly helpful in discussing the question of where power lies in our country. So, let’s look then at each of these institutions. Firstly, the Executive. The role of a modern Lord Chancellor can only be understood in the light of a modern government, and it seems to me that modern government is caught between two positions: firstly, that of constant suspicion about executive power and secondly one of constant expectation about the need for Government to assume that very power to ‘take swift action’. And nowhere is this more obvious than in the adoption of secondary legislative powers as a basis of lawful activity, and in the ability via secondary powers to amend primary legislation, the so-called Henry VIII power.

Modern government is indeed needed to take decisions and actions at times when there is no possibility of debate, but must then also take responsibility for those decisions and actions and must expect to have these scrutinised. A law of a“Henry VIII power” is unnecessary and appears to be authoritarian.}

And indeed, the current pandemic has thrown this issue in to stark relief. Government has imposed legislative restrictions on the clear understanding that they are to be temporary only, with reviews and sunset clauses to assure every one of their intentions. Suspicion remains, however. There is an historical hangover perhaps from the Civil War struggle between Parliament and the Crown, or rather, between Parliament and a particular interpretation of prerogative power, namely the Divine Right of Kings – and we still live with tensions between different arms of the state today. I won’t deny that there have been instances in ancient and indeed more modern political times where governments have overreached and have had to be checked. Governments are not perfect, but neither generally speaking do they have that insatiable appetite to ever expand their power and reach.

Now this argument has been described to me by its opponents as somewhat redolent of the way in which Frederick the Great described the attitude of Empress Maria Theresa of Austria on the partition of Poland in the 1770s – and I quote: ‘She cried, when she took; the more she cried, the more she took.’ I see the point, but frankly it misunderstands motive. The idea that governments of all hues are on a ceaseless mission to expand their power is, frankly, for the birds.

Government is very often all too glad to share or cede responsibility. It is constantly faced with cries of ‘there ought to be a law against it’, and when it acts to address those calls, often it accrues a little more authority and a little more power. And of course, this has consequences. Government has to constantly balance the need for action with its actual capacity to deliver. This is the real struggle and is the true explanation for the reluctance of Government in many instances to seek more power. Because with more power comes more responsibility, and with more responsibility comes more financial cost. This in itself is, in my view, a key check against unrestrained Government and ‘elective dictatorship’, so well written about by my predecessor, Lord Hailsham. And there are many other restraints, both formal and practical. Modern Government is more Prometheus bound than unbound.

{“Government is very often all too glad to share or cede responsibility”. It should not be; government is responsible for passing, repealing and maintaining laws for the governance of society. It is the one body that should have responsibility. It may, of course, delegate its authority to other institutions, but it cannot and should not refuse to accept blame on the Thatcherite excuse of ‘I was on (responsibility) holiday at the time’. There are other elected bodies that will have their territories and will have local laws and these bodies may have sole responsibility or it may be jointly held.

The EU’s GDPR distinguishes between data controllers and data processors in the handling of data, where the controller can delegate the use of data to the processor, but the controller is responsible still for the use and (more importantly) the misuse of data. I hold this a good analogy.

[Government] “is constantly faced with cries of ‘there ought to be a law against it’” and may just ignore these calls for legitimate reasons, one of which could be “its actual capacity to deliver”. Part of the definition of a bad law (and here bad is kept vague and there is a non-viscous circularity involved) must be when it is nearly or totally unenforceable (all laws are, I suppose, potentially or at least partially unenforceable, as they can be broken and have to be enforced). Any law can become a bad law if the mechanisms or institutions for enforcement are too weak or otherwise not fit for purpose. There is a danger that a law can become bad if the government, perhaps deliberately, has weak enforcement, due to, say, not enough persons to oversee the law. For example, the tax laws become bad when the wealthy are able to avoid payment when there are not enough inspectors to extract full payment; sometimes, messy compromises are made to extract some of the due payment. I would say that tax avoidance (with some exceptions) is a violation of the principles of (social) justice. Further it is a violation of political justice as the retained money can be used to increase political influence.

I would like to agree with “[b]ecause with more power comes more responsibility”, but cannot. It is clear this does not always happen.

Again disagree that “with more responsibility comes more financial cost”, but can see that with more power comes more financial cost, but this cost can be passed onto the powerless, so, I have a further disagreement that “[t]his in itself is … a key check against unrestrained Government”. To reiterate, the cost is bourne by the powerless not the powerful.

I am grateful for the mention of “‘elective dictatorship’, … [and] Lord Hailsham” and will look into his views on the subject, but as I have encountered the concept already (I usually use the term elective tyranny, following J S Mill) still have remarks to make. Firstly, that FPTP voting is, of course, far more likely to lead to such a situation than PR. Secondly, a referendum, that is supposedly binding for the future (despite the public changing its mind or future generations have different or even polar opposite views) is clearly an instrument of tyranny, not of democracy.

When the Scottish Parliament was set up, there was a clear intention to avoid (if possible), the near total domination of that parliament by one party (as would have happened by FPTP), that a PR element was introduced. Whether this will always work against elective tyranny remains to be seen.

Are “there are many other restraints, both formal and practical” against elective dictatorship/tyranny? Only, if they are effective.

“Modern Government is more Prometheus bound than unbound”. The image of modern government as on that is chained to and crucified on a rock (as Sophocles imagined) is one I do not understand. This becomes less understandable if you add in a vulture eating his ever-regenerating liver. Is there an implication that government is subject to an all-powerful being who wants to punish the only god who ever helped humanity without seeking worship from humanity?}

Hart’s Lecture

So, when it comes to the Judiciary, its role and its approach, nowhere do these issues become more pertinent than in the area of judicial review. I think it is helpful from my vantage point, uniquely connected to the Judiciary but no longer of it, to consider issues raised by none other than Professor HLA Hart, one of the foremost legal philosophers of the last century, in his 1977 Sibley lecture at the University of Georgia, and it was entitled ‘American Jurisprudence through English eyes: The Nightmare and the Noble Dream’¹.

{https://digitalcommons.law.uga.edu/lectures_pre_arch_lectures_sibley/33/

An interesting essay.}

And in addressing the question of adjudication, especially higher court judges, Hart explained that there were two views on how the courts approach such a task, which he termed the Nightmare and the Noble Dream. And setting aside the purist view that, when faced with a dispute, judges simply apply existing law and do not create new law, Hart saw two extremes: firstly, the Nightmare of judges deciding dockets of moral and political questions, and then the Dream of judges threading fundamental principles through every case.

Now the Nightmare in Hart’s scenario and I quote ‘is that this image of the judge, distinguishing him from the legislator, is an illusion, and the expectations which it excites are doomed to disappointment – on an extreme view, always, and on a moderate view, very frequently.’ ²

Now if of course adjudication were a true form of law-making, rather than the application of existing laws, this would lead to worrying questions about how the far judges’ personally held views could form the basis of their legal decision-making. An easy defence is that here in the United Kingdom not only do we do avoid selecting our judges with regard to their personal political views, but our constitution does not allow for primary legislation to be struck down by the courts. The very existence of the sovereignty of Parliament is at odds with the idea that judges could ever act as legislators and ‘create’ law, but as I shall return to, the core idea of the nightmare – that judges are placed into the position of legislators or political decision makers – is not unimaginable.

Hart’s Noble Dream is the belief that – even when the law appears unclear or there exists no precedent, judges can apply existing law and underlying principles and I quote ‘which if consistently applied, would yield a determinate result’ ³ to their cases – to do so without creating new law.

Now whether this dream can be said to apply in the UK of course is questionable, given, as I shall return to, our legal systems can contain conflicting principles, and there may be a number of legal sources which could be examined in seeking clarification. Judges are then left in the unenviable position of having to make law-making choices.

Hart concludes ultimately that the truth – as with so many things in life – is somewhere in the middle. In many cases judges simply apply the law, but in others they have a discretionary field of judgement and actually have a choice to make about what the law should be. As Hart put it and I quote: ‘It is not of course a matter of indifference but of very great importance which they do and when and how they do it.’ ⁴

Morpheus or Epiales in Britain

{There are numerous sites (including Wikipedia entries for those who seek short summaries) about these gods of the ancient Greeks. In the essay they are standing for Noble Dream and Nightmare at either end of the ‘oneiric spectrum’ (see first paragrapgh below..}

Whilst Hart was speaking of the United States, quite a separate and distinct jurisdiction to ours, it is useful nearly 50 years on to consider where Britain stands on Hart’s oneiric spectrum – and how the modern Lord Chancellor should react.

Before the Supreme Court heard the appeal in the first Miller case, a newspaper carried a feature analysing how supposedly ‘Europhile’ the 11 judges were. The rating of each was based upon their formal links to European institutions, any views they publicly expressed that seemed to be sympathetic to the EU, and their close links to individuals who themselves might be pro-EU ⁵. In the end, there was no correlation whatsoever between the rating given and the way in which way the judges ruled. Lord Sumption, imagined to be the only Eurosceptic, ruled with the majority; whilst Lords Carnwath and Reed, each imagined to be a Europhile, dissented. In this case, the Nightmare proved to be just that – a nightmare and a rather ridiculous one at that, but not at all easy for the judges whose integrity was impugned and who could not defend themselves.

{The “first Miller case” referred to is known as ‘2016 R (Miller) v Secretary of State for Exiting the European Union’ as a short title and there are a number of summaries that can be consulted, for example, https://www.judiciary.uk/wp-content/uploads/2016/11/summary-r-miller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf. There is even one in WikiPedia. The fuller title is not shown here.

The significance of the case is the ruling by courts against a decision of the Executive to force through a constitutional change with the approval of the UK Parliament.

Ms. Miller, a woman and a person of colour was subjected to extremely foul abuse online and only slightly less foul abuse by some mainstream British newspapers. It would seem these are no respecters of law or of persons.

The footnote (5) refers to a British mainstream newspaper.}

At the same time the Noble Dream – the view that judges do nothing more than interpret and apply the law – is frequently aired in our country. For example, the former President of the Law Society said, and I quote: ‘A judge’s ruling is an expression of the law – not of their personal opinion. It would be disingenuous to conflate the two.’⁶

{The President expresses a view for which, I would hope no one should dissent. This is however a difficult position as there are many cases where a judges opinion has added to a sentence or led to a false conviction. Further mechanisms are occasionally needed to ensure justice. As the next paragraph from the Lord Chancellor shows, when he talks of another court case.}

However, I am not the first to consider that this is not always true in every case. In an interesting lecture last year Lord Sales described R (Nicklinson) v Secretary of State for Justice as and I quote ‘a case literally involving questions of life and death, which called for a decision which balanced competing fundamental moral values. It also called for a decision which balanced competing fundamental institutional values in terms of whether the court should or should not strike the balance of moral values itself or accept the balance as struck by Parliament.’ ⁷

{In R (Nicklinson) v Secretary of State for Justice, the judges of the Supreme Court of the UK ruled that they could not decide whether ‘assisted suicide’ could be permitted, but that it was a mzatter that required an act of parliament; the Supreme Court ruled that if they had allowed this, then they as judges would be making the law and not interpreting it.

This does raise the question of whether moral rules can be made law. Sometimes it is clear that they can, such as a law against murder. It becomes murkier when ruling on, say, whether it is unlawful for unmarried (competent) adults to have fully consensual sex in privacy.}

Now the judges of the Supreme Court, holding the highest legal offices in the land were not of one mind on what was the first order question here and how it should be answered.

Now if the courts had to answer moral and not legal questions themselves, wholly different from the sorts of questions which even the apex courts are accustomed to considering, this raises questions of what the proper description of the judicial role should be, how the government and Parliament should relate to them and how the Lord Chancellor – me – how I should defend them.

I do not think it is controversial to say that there are questions on which a court should not be required to adjudicate. And on one famous occasion a former Chief Justice, Sir Edward Coke told James I that no level of natural reasoning abilities made the king qualified to decide a case personally. And Coke of course distinguished between natural reason and I quote ‘accessible to individual rational minds’ and by which ‘law is measured’ ⁸ , and artificial reason – technical, legal reasoning which requires long study of the law. On this analysis, legislators use natural reason, but judges use artificial reason and this distinction is an important one in determining what is being asked of our Judiciary and so, in turn, how the Lord Chancellor should act.

Now without wanting to get into a debate about whether everyone is equally good at natural reason, there is no objective metric by which it can be measured. And, even if there were, judges in the UK are not appointed on that basis. And as the late US Supreme Court Justice Antonin Scalia pointed out of his own bench, they would have no more, and indeed likely had less, legitimacy to decide a moral question than nine randomly selected citizens – an inference which must be true even of our great Judiciary ⁹.

In a jurisdiction where a body of law lay out the settled moral and philosophical view of the nation and catered for all possible scenarios then no judge would ever be asked to exercise their own discretion. Despite the work of codifiers from Hammurabi through to Justinian to Napoleon, such a jurisdiction has never existed and indeed in the increasing complexity of the modern world seems further away than ever.

The United States has pursued a solution of considering the moral, political, and philosophical dispositions of would-be judges in the appointment process. And we’ve all seen the results of that. As Lord Chancellor I feel that this would indeed be a nightmare for the UK, which we should seek to avoid. Imagine if the newspaper story I mentioned earlier had been about the judges’ views on Assisted Suicide – here we are back to the nightmare once again. But how best can the modern Lord Chancellor use their roles in the Executive, Legislature and as advocate and defender of the Judiciary to avoid that very nightmare?

The Intention of Parliament

In her response to the Independent Review of Administrative Law call for evidence, the Noble Lady, Baroness Hale wrote and I quote that ‘in the vast majority of cases, Judicial Review is the servant of Parliament’. In this Kingdom we in Government – the Executive and the Judiciary – are all servants of Parliament, which derives its authority from the people. But how do we know what it wants – particularly how it wants the Executive and the Judiciary to treat each other?

When Parliament grants a power to the Executive it also sets limits to how it can be used – these are the familiar grounds of judicial review. Now how those limits apply in a particular case essentially comes down to a question of statutory interpretation: did Parliament intend for the decision maker to have the power to do it? The courts should not imply any limitations on a power which Parliament did not actually intend; and if Parliament intended not to put in some limitations, the of course this must be respected.

There is a cautionary tale to be found in the case of Roberts v Hopwood, where the Appellate Committee of the House of Lords held that the powers Parliament granted to Local Authorities had the implied condition that they should be exercised in accordance with a so-called fiduciary duty towards ratepayers. Using this limitation of power that they had just discovered, the courts decided that a council could not set a minimum wage for its employees. So much so, that this rule was nicknamed by some mischievous souls as ‘the rule against socialism’! The powers of local government have of course changed since then, but the legal problem of a constitutional problem raised is not simply theoretical.

On the other hand, the continued failure of the courts to give full effect to ouster clauses is a cause for concern. As Lord Chancellor I have sought to ensure that Parliament’s instructions are clearer to both the Executive and the Judiciary. Although I am no longer personally a law officer of the Crown, I have a duty to uphold the rule of law. The Independent Review of Administrative Law Panel said that ouster clauses, when they are used in relation to specific decisions and powers, do not contravene the rule of law, and so should be upheld. Nonetheless, we are yet to see an ouster clause where Parliament was held to have been clear enough in its language to be given full effect by the courts. Indeed, even the previous Government with a majority north of 150 at one stage ran into problems in attempting to get an ouster clause through Parliament that sought to clarify the law in the broadest terms possible. So, I believe it is now time for Parliament to clarify its instructions to the courts in this situation, and so we are consulting on proposals on how ouster clauses should be interpreted by our courts, and to ensure Parliament’s intentions are observed.

Now more generally, the risk of the Nightmare arises most commonly from legislation which lacks the kind of clarity that the rule of law demands in a modern and mature democracy like ours. A legal system as complex and advanced as ours will always fills gaps in legislation – and that is in the interests of litigants. We must be honest about the fact that rushed and poorly drafted legislation leaves those gaps and judges frankly have an unenviable task in filling them. At best it is a Parliament shirking its duty which leaves jurists uncertain of whether it did or did not intend a certain outcome, at worst it is contracting out its own decision-making function. Frankly that tendency only creates more problems for those who must interpret the law. Governments of all complexions have a clear responsibility to draft better, clearer laws that protect the Judiciary from having the responsibility to do our jobs for us.

And it must surely be an important part of the role of the modern Lord Chancellor to be the keenest advocate in government of precise and clear legislation. As a cabinet minister I have the tools to challenge my colleagues to produce only the best legislation, but as in all things I cannot guarantee perfection.

It is particularly acute when our domestic law interacts with another jurisdiction. In the EU the CJEU’s supremacy was the extreme answer to this tension between the Union and member states. New case law of the CJEU is of course no longer a matter for our courts, but how to maintain clarity for the courts was amongst the most technically and politically fraught parts of legislating for our exit. In the Strasbourg Court the evolution of the convention and our domestic law has increased the complexity and decreased the clarity of the law in cases like Nicklinson. It is in this vein that I have asked Sir Peter Gross to review the operation of the Human Rights Act. Like the rest of you I am awaiting the report and do not wish to pre-judge it, but I am hoping for recommendations which will lead to greater clarity for the courts and which I can, as Lord Chancellor, ask Parliament to approve.

As I have said, achieving that clarity is a responsibility placed upon me and on the Government, but each institution of the state has a responsibility to maintain and respect balance in our system. Writing about the recent decision of the Supreme Court in the Shamima Begum case – where the Court made the determination that ministers are better equipped to make decisions relating to national security and that resolving such matters through litigation lacked democratic legitimacy – one of its former members, Lord Sumption, noted that it marked and I quote ‘a return to a more cautious approach to the judicial control of ministerial decisions.’ ¹⁰ You might say that I am bound, as a minister in the government that made the decision being challenged in the case, to agree with him. But his assessment – that it goes some way to restoring a balance between Parliament and the courts which understands the realities and the proper role of each institution within a democracy – has much more to say about the ongoing relationship between the Executive and the Judiciary than it does about the decisions of the current government.

Conclusion

As a modern Lord Chancellor my duties are to properly balance our constitutional arrangements, and so to protect the Judiciary. To maintain a clear delineation about where the power lies, it falls to me to propose reforms which, as far as possible, avoid drawing judges into the political realm and forcing them to adjudicate on moral or philosophical issues. The best solution is to avoid getting into this situation in the first place by Parliament taking the lead and ensuring that the discretionary field of judgement is appropriately construed.

And I quite agree with Lord Sales that when faced with an unclear statutory provision the court should seek to construe it by, and I quote, ‘looking to infer what the legislating Parliament would have decided had it addressed itself directly to the issue at hand.’ ¹¹ But in doing so the courts should not be asked to replace Parliament’s reasoning with their own.

The responsibility to avoid dragging the courts into moral and political issues lies not solely with the judges. Parliament and the Executive also has a vital role in this regard. We must confront the fact that there have been instances where Parliament glossed over its own divisions by passing legislation that was vague and which had the effect (if not the intention) of exporting the determination of certain moral or political issues to judges. I want us to be clear about where power lies and why; and to strike a balance in our constitutional arrangements – on which issues the courts should adjudicate, and in doing so how they should adjudicate them.

{When “there have been instances where Parliament” passed vague legislation, there can have been no excuse. UK Acts have, generally to pass through a stage of scrutiny by the House of Lords. Much as this is an unelected body and so should be abolished, this institution does possess members that are experts in law and in the constitution, who will point out such a flaw. Any reform of UK political processes should aim to retain this kind of expertise as a part of the civil service.}

In doing so, I am not seeking to grab power for myself or for the Executive and I reject the notion that government is something to be mistrusted fundamentally. But getting the right balance – not just in this constitutional question but right across the board – is, I believe, a fundamental duty placed upon the Lord Chancellor by virtue of their unique role. And it is one that I have begun with the work I have referenced over the last 18 months and I intend to use all the tools at my disposal. And beyond this I look forward to saying much more in the near future about how it will be possible to achieve a balance that reflects the realities of the modern justice system and the world in which we live today. The truth is that neither the Executive, nor the judges are, to borrow a regrettable and wholly wrong headline, ‘Enemies of the People’. Far from it, we are both the servants of Parliament and the people. And in that common endeavour the balance of our constitution will be maintained.

Thank you.

Footnotes

1. Hart, H.L.A., “American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream” (1977) 11 Ga L Rev 969
2. Hart 972
3. Hart 979
4. Hart 989
5. Daily Mail https://www.dailymail.co.uk/news/article-3995754/The-judges-people-week-11-unaccountable-individuals-consider-case-help-thwart-majority-Brexit-Mail-makes-no-apology-revealing-views-links-Europe.html#comments
6. https://www.lawsociety.org.uk/contact-or-visit-us/press-office/press-releases/response-to-supreme-court-ruling
7. Lord Sales, ‘Proportionality review in appellate courts: a wrong turning?’ November 2020 available at: https://www.supremecourt.uk/docs/speech-181120.pdf, p. 3
8. Gerald J. Postema, ‘Classical Common Law Jurisprudence (Part I)’ (2002) 2 Oxford University Commonwealth Law Journal 178
9. Cruzan v Director, Missouri Department of Health (1990) 110 S. Ct. 2841, 2859 (Scalia J); cited approvingly by Ward LJ in Re A (Conjoined Twins) [2000] EWCA Civ 254
10. https://www.thetimes.co.uk/article/supreme-court-rules-that-home-secretary-is-the-best-judge-of-national-security-risk-rfs067gw9
11. Lord Sales, ‘In defence of legislative intention’ November 2019, available at: https://www.supremecourt.uk/docs/speech-191119.pdf, p. 16

Published 25 March 2021”

Freedom and Democracy According to Margaret Thatcher

“You cannot have freedom without a rule of law… And if you don’t have it, what you tend to get is corruption and that is death to freedom, it’s death to truth, it’s death to honour, it’s death to democracy.” Margaret Thatcher, 1st October 1996.

Recently, the government of the UK has said it was going to break international law. Theirs is a statement of intent from the Conservative and Unionist Party, the governing party in the UK. Theirs is a party that venerates Margaret Thatcher but is prepared to ignore her about a critical issue.

Breaking international law will have dire consequences
for the UK in negotiations and has led to some resignations from honourable people, but not from the Prime minister, Alexander Johnson, known as Boris, nor from his Cabinet.

On the first of October 1996, Thatcher made a speech to the European Foundation on “Freedom, Economic Liberty and the Rule of Law”. I intend to critique this speech. The full text can be found at https://www.margaretthatcher.org/document/108365. Quotations from the address and elsewhere will be in “”.

Thatcher delivered her speech at “a dinner which is called ‘the Freedom Dinner'”. In her speech, she claimed that “as every empire has broken up, in this generation, into component nations—not into new federations, please note: each with their national pride and their national character”. Many of those new nations were federations, for example, India, Pakistan, Malaysia and Nigeria, formed from the former colonial powers with few of them having national pride and character. Notice that she is approving nationalism, while in the UK, she opposed the national pride and national character of the component regions and nations of that Union. The Scots are distinct from the English, from the Welsh, from the Irish. The northern English are distinct from the southern, as distinct, for example, as the Danes are from the Swedes and the Norwegians.

Thatcher claimed that “there are only 75 countries [out of 180] that are truly democracies. And so we have a great deal more work to do” in establishing democracies I suppose she means, but she passes
swiftly to another point dealt with in the next paragraph, but we do need to pause here to discuss a topic already raised. I assume the figures are approximate, but near correct enough not to be bothered with making more accurate. The important things are her claim that there are 75 (or so) that are ‘truly’ (sic) democracies, which hinges on what true democracies are. She gives no examples, but given the occasion, we may be justified in assuming that France, Germany, Denmark, Sweden and the UK are examples. Of these, I would dispute the claim that the UK is a true democracy. It has democratic elements to be sure and has, since Thatcher made her speech, through devolution created parliaments and assemblies that are more democratic than that of the UK government. No self-respecting political commentator of the 19th century of the Common Era would have said that the Westminster government of the UK was democratic but would have declared it a mixed constitution with Monarchical, Aristocratic and Democratic elements. The monarchical element is not as powerful as it once was, but the Queen of the UK still decides who is the person to be Prime Minister and who then forms his/her Cabinet. UK people are still not citizens, but are called subjects and lessens our dignity (We used to be citizens of the EU; now we do not have the dignity to be called that). There is a still the unelected aristocracy taking decisions that an elected body should take; this aristocracy has many elements; the old heredity lords, which are now restricted in number to far fewer than the actual number of hereditary peers, the Church of England Bishops, who represent a minority religion, and serve no other purpose, several celebrities and businessmen seemingly being rewarded for some vague service to ‘the country’, some former members of the House of Commons and others. The UK House of Lords even has the ultra-wealthy son of a former officer of the KGB, who, having first looted his own country, settled in the UK. There is within the House of Lords some useful people (mainly former holders of high office) who can review legislation and from their experience critique this. Such people should be employed as civil servants in my opinion, and their views should be respected in rejecting legislation that is illegal or unworkable. The House of Commons may not be regarded as democratically elected as the electoral system is by the majority of those who can be aroused to vote, so that minority views (and even majority views) can be ignored by the party in power, who may have only a minority of the popular vote, but will have a possibly large number of MPs. This leaves open the possibility of elective dictatorship, that is, a system where voting does not count towards the choice of government, but is seen by the authorities as an endorsement and legitimisation of their rule. The preceding would be an example of the anarchist criticism of voting for your own oppression.

I have deliberately chosen Denmark and Sweden above as examples of democracies, and the reason will be apparent when we look at further parts of this speech.

Thatcher by her denial of the formation of federations is laying down her opposition to federations, and this is one direction that the EU could take, as a United States of Europe, rivalling the USA, which Thatcher admired. She was also opposed to a federal UK.

Thatcher claims that “[o]ur form of government [that is democracy] is not just a miscellaneous collection of policies: it is founded on fundamental principles, which Winston [Churchill] called “the title deeds of freedom”. And he said this: “The people of any country have the right and should have the power by constitutional action, by free unfettered elections, with a secret ballot, to choose or change the character of the form of government under which they dwell”. That’s choosing the government.’ [See https://histobron.nl/churchill-ijzeren-gordijn-speech-1946/ for the full Churchill speech, which is in English; the introduction is in Dutch.]

Churchill was, of course, an imperialist and it is quite stunning that this opponent of the self-determination of the peoples of the British Empire should suddenly become an unapologetic convert. But we should not judge statements by who said them, but by what is said. The context was the building of the Soviet Empire in Eastern Europe. The doctrine he is expounding is democratic and the basis of any democratic country which begs the question of what is a country. For example, is Poland, or is Silesia or is Czechoslovakia or just Slovakia? What defines a country? Is it adherence to a ruler? Is it a people with a common culture, a supposed likeness to one another or perhaps it is a community who want a common form of government?

Churchill, if he is sincere, had moved from being an imperialist in 1945 (when he stood for reelection to the UK parliament) to a committed democrat in 1946 as Thatcher further listed from Churchill’s speech necessary components: freedom of speech, freedom of thought, freedom of religion (to which should be added freedom from religion), “freedom to have independent justice by independent judges, freedom to choose your government” to which she added, “every four or five years, so that your government is answerable and accountable to the people”. To all of the preceding, I can have, and can see from other people, apart from Anarchists, no objection.

If Churchill’s conversion is sincere, then it is an example of democracy in action, someone being persuaded by the peaceful means of argument that a previously held opinion is incorrect and replacing that position with another. The new opinion may also be incorrect, of course.

However, Thatcher brings in an element not considered by Churchill. Thatcher claims that “[y]ou could not have, in fact, political freedom unless you have economic liberty” and then continues to defend her addition. Her argument is “wealth is not created by government”, but “by the talent and enterprise of individuals” and it is these individuals who create wealth (“build up the wealth”). The whole argument is questionable. Wealth can and has been created by various governments, although it may not be the primary purpose of such an institution. Thatcher is notorious for her comment that there is no such thing as society, and the second quote seems to fit with that. For her, there appears to be government and individuals. Putting aside the argument that if there is no society, then a government is nothing more than a tyranny over those individuals, then, Thatcher has baldly stated that wealth can only be generated by what appears to be an elite, who have talent and enterprise, although these words are not defined. A musician has talent, but doe s/he generate wealth? A bank robber may have both talent and enterprise.

The notorious statement on society can be found at https://www.margaretthatcher.org/document/106689 (again from the Thatcher Foundation) and places it in context. It seems to be a sloppy remark as Thatcher attempts to set up an analogy with a tapestry, that clearly is a representation of society.

Returning to the main speech under consideration, Thatcher goes on to claim that, in effect, any other economic system than the ‘free enterprise’ one is socialism or creeping towards it. For her, socialism is where people serve the state, which sets up socialism (remember anything other than free enterprise) as a straw man. Her socialism covers such a broad swathe of economic systems that one argument against cannot cover all.

She claims “[i]f you look … at the regulation … [and] the level of taxation, [then] the freest countries, … [which are] the most prosperous and most successful …, are countries like the United States, … Japan … [and] the United Kingdom”. Lowest on her list of free countries are Denmark and Sweden, because of their high taxation. Denmark and Sweden regularly both now and in the 90s top or are high in the polls of most indices of freedom, but Thatcher is not concerned with that. It is this economic freedom that is her obsession, and nothing else at this point seems to matter. As can be seen from ‘Carry on Laundering’ [Private Eye No. 1531 pp 21-23], this economic freedom of little or no regulation has corrupted “economies, governments and societies” and sustained “despotic regimes, organised crime and a worldwide tax-dodging industry”. A corrosion of those freedoms that Thatcher seems to have had little regard for.

Eventually, Thatcher returns to the subject of freedoms other than the economic; “we can’t have freedom without a rule of law. … [that is, there is no] unconstrained freedom … [and it is distinct from] oppressive law[s]”. The rule of law is “having wise judges who decide fairly and whose decisions are taken and honoured. It’s having your laws made in a parliament which is accountable to the people and which you know are going to be honourably administered.” “And if you don’t have it, what you tend to get is corruption and that is death to freedom, it’s death to truth, it’s death to honour, it’s death to democracy.”

Toots Hibbert: Farewell to a Reggae Legend

There is nothing profound in the following post. I have not the skill in musicology to write anything like that.
What I do have is sorrow at the passing of one of my favourite singers and musicians: Toots Hibbert. He was an artist I preferred to Bob Marley, who I also rated very highly and although it is rarely right to compare such different talents, I think it may draw out my views on Toots as an artist.
Firstly the voice, described once as the Otis Redding of Reggae is a big attraction; a voice that was as strong at 77 as when he was in his youth. He has an album of new songs coming out soon and, thanks to the David Rodigan programme on BBC Radio 1 Extra, some of the new music has been played.)
Secondly, he was an excellent musician (as was Marley), but more inventive.
Thirdly, he was as good a songwriter as Marley, but with a broader range of moods. As serious as Marley when being serious, but with a good ear for a comic song.
I heard of his passing oddly enough on the BBC Scotland sports programme ‘Off the Ball’ and only confirmed it once I had stopped driving.
Like all fans, my thoughts are with his family.

On Freedom of Expression of Opinion

This post is a break from the theme of the last few and next few posts and is a discussion of an extract from Chapter II of John Stuart Mill’s ‘On Liberty’ from 1859. The extract is known as ‘On Freedom of Expression of Opinion’. I have chosen this for its importance as a topic, a topic that is always under attack, sometimes by well-meaning critique, which has failed to grasp the importance of freedom of expression of opinion, and an example of my ragbag philosopher approach.

A ragbag philosopher follows no great -ism of philosophy, but chooses the best arguments from all and any. This is not done arbitrarily (at least, not intentionally) and is probably the most common method of Western Analytic philosophers.

JS Mill is philosopher worth reading, but a great believer in long sentences and even longer paragraphs, which can span several pages. He was a liberal, a feminist, a free marketeer and a reluctant democrat, distrusting the aims of the manual labourers, ascribing to them a sense of class solidarity over justice. Not all those worth reading will have your views and you will be all the better for it.

All quotes will be encased “” and the extract is uninterrupted as follows:

“But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

We have now recognized the necessity to the mental well-being of mankind (on which all their other well-being depends) of freedom of opinion, and freedom of the expression of opinion, on four distinct grounds; which we will now briefly recapitulate.

First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility.

Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied.

Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds.

And not only this, but fourthly, the meaning of the doctrine itself will be in danger of being lost, or enfeebled, and deprived of its vital effect on the character and conduct: the dogma becoming a mere formal profession, inefficacious for good, but encumbering the ground, and preventing the growth of any real and heartfelt conviction, from reason or personal experience.”

Mill starts with a preamble that is a summary of his argument. He uses rhetoric to great effect, drawing attention to the issue. Denying expression of opinion is ‘evil’, not just merely bad or wrong, and robbery, not only robbery of those who hold an opinion, but those who oppose it. Mill shows a concern for mental health, which seems very advanced for the time (and it was), but is unsurprising as he had had a nervous breakdown at an early age. His concern is clearly for humanity (as he meant by mankind).

He put forward four arguments, with the last being the strongest. As we examine, we should consider an opinion. The opinion I shall use is that ‘dwarves are inferior to elves’. I am using this opinion as it should arouse no controversy in itself (unless some hobbit objects), but other categories can be substituted easily to form (nasty) opinions.

A point to remember is that it is easier to disprove an argument or an opinion than it is to prove it. There no tools by which we can utterly provide proof; we can give good grounds. Deductive arguments will give absolute proof of a conclusion if and only if the rules of that type of argument are followed and the premises are all true, that is, they are all facts and not opinions.

The first argument is quite simple as no human being is infallible, then we could individually, or collectively, reject a fact, that is something that is true. This argument makes an appeal to the humility rather than the vanity of a person. One weakness is that a person may believe that they have a special access to the truth, perhaps through their own perspicacity or that a infallible entity has revealed the truth to them and any opposite opinion can be safely dismissed. This is to hold an opinion dogmatically.

The next argument from Mill is the partial truth argument, which makes two claims. The second is “the general or prevailing opinion on any subject is rarely or never the whole truth”, which is a real possibility if we accept fallibility as above and how difficult it is to prove an argument. The first, however, is more contentious. A false opinion can be just that, with no merit and although I have said to consider the example opinion above, I think we need to consider some real-life opinions, such as ‘ there is no artificial climate change’. This opinion ignores scientific data, which clearly shows that there is artificial climate change, for, although we have no tools to actually prove this absolutely, we certainly have very strong grounds, as strong as they could be. The deductive argument is sound and valid and the premises are facts as scientific data is prepared to be as objective as possible.

Mill is correct to say that “it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied”, but when an opinion is proven false, it should not be considered.

The concern of the third argument, is the status of a completely true argument if it is not under (constant?) challenge. Will it “by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds” as Mill had it? Perhaps, he is suggesting this is how prejudice starts: an opinion is (held to be) true for a society and never questioned. I note that Mill says most, so does he mean that that there are those who will actively hold a true opinion? I think he means there are. He gives no reason why some should and most not, although, I assume, this would be more of a psychological issue (for Mill) and not a philosophical one and so ignored, but it does show that he was not an instinctive democrat with a contempt for the ‘most’. Perhaps, I am harshly judging Mill and he could comment on this by saying he thought most persons had been conditioned to only accept opinions and never to actively hold them. I may here be merely projecting my view, that is certainly possible to stifle human curiosity or encourage it, by training a person. A point raised is whether the opinion needs to be debated or can be held as such. Clearly for Mill it cannot as it tantamount to be prejudice. I have one further criticism, but defer this until we have examined the fourth argument.

“[F]ourthly, the meaning of the doctrine itself will be in danger of being lost, or enfeebled, and deprived of its vital effect on the character and conduct”, that is becomes a dogma, to be followed blindly and for no good reason, as ”a mere formal profession, inefficacious for good, but encumbering the ground, and preventing the growth of any real and heartfelt conviction, from reason or personal experience”. If an opinion is not debated, Mill would have it, then we do not hold it as a value, but as a dogma. This is hard to argue against and I cannot see how it could be effectively argued against. My only criticism is on on the grounds of practicality; can you actively hold all your opinions? Many, probably most, will not be needed hourly, daily, weekly, etc and so not be to the forefront of your mind, so, perhaps when you do need to recall them, they could be refreshed in an active debate (if only with yourself). Some will be held as your deep values and inform your actions without recourse to debate, and become quasi-instincts and only called into doubt if the results from your actions are bad in some way. It is best to be holding your values actively, but not always possible.

I can now turn to the example opinion and ask whether this is an opinion worth bothering with; of course, it is not, it is not true in any sense worth bothering with as it concerns two fictional types of character. So the arguments above do not apply to that opinion, but Mill is not bothered with that but with the expression, but this is scarcely better as we have an expression of a statement that is not true. The arguments work with opinions held regarding reality.

Finally the arguments are against dogma and prejudice. Can these be removed? Yes they can from a reasonable person who can listen to arguments and analyse another person’s opinions, but are useless against anyone who is not a reasonable person.