The allure of the law
Individuals aggrieved by iniquity often complain, ‘There ought to be a law against that!’ There is an understandable tendency to look to the law to resolve our problems. And the law’s failure to provide a remedy may provoke a sense of frustration and anger.
Yet legal regulation of antisocial behaviour is not as simple as it may appear, as should become clear when the challenges to the law of technology are considered. Before we reach for the law – or a lawyer – it is worth recalling the words of the great American judge Learned Hand, who prescribed this antidote to an excessive faith in the law:
I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, and no court to save it. The validity or otherwise of this assertion should become evident in the course of these pages.
The functions of law
Football, chess, bridge are unthinkable without rules. A casual poker club could not function without an agreed set of rules by which its members are expected abide. It is not surprising therefore that when they are formed into larger social groups, humans have always required laws. Without law, society is barely conceivable. We tend, unfortunately, towards egoism. The restraint that law imposes on our liberty is the price we pay for living in a community. ‘We are slaves of the law’ wrote the great Roman lawyer Cicero, ‘so that we may be free’. And the law has provided the security and self-determination that has, in large part, facilitated social and political advancement.
The cliché ‘law and order’ is perhaps more accurately rendered ‘law for order’. Without law, it is widely assumed, order would be unattainable. And order – or what is now popularly called ‘security’ – is the central aim of most governments. It is an essential prerequisite of a society that aspires to safeguard the well-being of its members.
Thomas Hobbes famously declared that in his natural state – prior to the social contract – the condition of man was ‘solitary, poor, nasty, brutish and short’, though more than one student has rendered this maxim as ‘… nasty, British and short’. Law and government are required, Hobbes argues, if we are to preserve order and security. We therefore need, by the social contract, to surrender our natural freedom in order to create an orderly society. His philosophy is nowadays regarded as somewhat authoritarian, placing order above justice. In particular, his theory – indeed, his self-confessed purpose – is to undermine the legitimacy of revolutions against even malevolent governments.
He recognizes that we are fundamentally equal, mentally and physically: even the weakest has the strength to kill the strongest. This equality, he suggests, engenders discord. We tend to quarrel, he argues, for three main reasons: competition (for limited supplies of material possessions), distrust, and glory (we remain hostile in order to preserve our powerful reputations).
As a consequence of our inclination towards conflict, Hobbes concludes that we are in a natural state of continuous war of all against all, where no morals exist, and all live in perpetual fear. Until this state of war ceases, all have a right to everything, including another person’s life. Order is, of course, only one part of the functions of law story.
Though the law unquestionably protects order, it has another vital purpose. In the words of the 20th-century English judge Lord Denning: The law as I see it has two great objects: to preserve order and to do justice; and the two do not always coincide. Those whose training lies towards order, put certainty before justice; whereas those whose training lies toward the redress of grievances, put justice before certainty. The right solution lies in keeping the proper balance between the two.
The pursuit of justice must lie at the heart of any legal system. The virtual equation of law with justice has a long history. It is to be found in the writing of the Greek philosophers, in the Bible, and in the Roman Emperor Justinian’s codification of the law. The quest for clarity in the analysis of the concept of justice has, however, not been unproblematic. Both Plato and Aristotle sought to illuminate its principal features. Indeed, Aristotle’s approach remains the launching pad for most discussions of justice. He argues that justice consists in treating equals equally and ‘unequals’ unequally, in proportion to their inequality.
Acknowledging that the equality implied in justice could be either arithmetical (based on the identity of the persons concerned) or geometrical (based on maintaining the same proportion), Aristotle distinguishes between corrective or commutative justice, on the one hand, and distributive justice, on the other. The former is the justice of the courts which is applied in the redress of crimes or civil wrongs. It requires that all men are to be treated equally. The latter (distributive justice), he argues, concerns giving each according to his desert or merit. This, in Aristotle’s view, is principally the concern of the legislator.
In his celebrated book, The Concept of Law, H. L. A. Hart maintains that the idea of justice:
… consists of two parts: a uniform or constant feature, summarized in the precept ‘Treat like cases alike’ and a shifting or varying criterion used in determining when, for any given purpose, cases are alike or different.
He contends that in the modern world the principle that human beings are entitled to be treated alike has become so well established that racial discrimination is usually defended on the ground that those discriminated against are not ‘fully human’.
An especially influential theory of justice is utilitarianism, which is always associated with the famous English philosopher and law reformer Jeremy Bentham. In his characteristically animated language:
Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne. … The principle of utility recognizes this subjection, and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity by the hands of reason and of law. Systems which attempt to question it, deal in sounds instead of sense, in caprice instead of reason, in darkness instead of light.
To this end, Bentham formulated a ‘felicific calculus’ by which to assess the ‘happiness factor’ of any action.
There are numerous competing approaches to the meaning of justice, including those that echo Hobbes’ social contract. A modern version is to be found in the important writings of John Rawls who, in rejecting utilitarianism, advances the idea of justice as fairness which seeks to arrive at objective principles of justice that would hypothetically be agreed upon by individuals who, under a veil of ignorance, do not know to which sex, class, religion, or social position they belong. Each person represents a social class, but they have no idea whether they are clever or dim, strong or weak. Nor do they know in which country or in what period they are living. They possess only certain elementary knowledge about the laws of science and psychology. In this state of blissful ignorance, they must unanimously decide upon a contract the general principles of which will define the terms under which they will live as a society. And, in doing so, they are moved by rational self-interest: each individual seeks those principles which will give him or her best chance of attaining his chosen conception of the good life, whatever that happens to be.
Realism about law
The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.
Justice Oliver Wendell Holmes, The Common Law, 1
Justice is unlikely to be attained by a legal system unless its rules are, as far as possible, reasonable, general, equal, predictable, and certain. None of these objectives can be achieved in absolute terms; they are ideals. So, for example, the law can never be utterly certain. Occasionally the facts of a case are obscure and difficult to discover. Similarly, the law itself may not be easy to establish – especially for the non-lawyer faced with a profusion of statutes, decisions of the courts, by-laws, and so on. The Internet has rendered the task of finding the law slightly easier, but, in the face of an escalating spate of legal sources, it remains a formidable challenge. The maxim ‘hard cases make bad law’ expresses the important principle that is better that the law be certain than that it be bent to accommodate an unusual case.
Justice requires more than just laws; the process whereby justice is attained must be a fair one. This entails, first, an impartial, independent judicial system. Second, there must be a competent and independent legal profession. Third, procedural justice is a vital ingredient of a just legal system. This necessitates, amongst other things, access to legal advice, assistance, and representation, and the guarantee of a fair trial.
In a just or nearly just society, few obstacles beset the path of the judge who, in a general sense, seeks to advance the cause of justice. Heroism is rarely required. Where injustice pervades the legal system, however, the role of judge assumes a considerably more intractable form. How could a decent, moral, fair-minded person in a society such as Nazi Germany or apartheid South Africa square his conscience with his calling? This moral quandary is perhaps encountered also by ordinary individuals who inhabit an unjust society. Should the fact that the judge is a public official distinguish him from others who participate in the legal system or who simply derive benefit from its injustice? Are there compelling reasons for morally differentiating judges from others, particularly lawyers? The honourable judge attempts to do justice when he can, admitting that his autonomy is curtailed in several major areas of the law. But is a conscientious lawyer not in the same boat? He strives to do well, often at great personal cost, within the strictures of the legal system. He too lends legitimacy to the system. Is the moral dilemma not the same?
There are no simple answers to this sort of predicament. Institutionally, judges differ from lawyers: they are officers appointed or elected to implement the law. Their legal duty is plain. Lawyers, on the other hand, are not state officials. They owe a strong duty to their clients. They must, of course, work within the system, but their responsibility is to utilize the law, not to dispense justice. They may find the law morally repugnant, but their role within an unjust legal system is easier to justify than that of the judge. So, for example, lawyers in apartheid South Africa themselves recognized this distinction, and several prominent senior lawyers declared that on grounds of conscience they would decline appointment to the bench. Yet they continued as lawyers. And, though the temptation to withdraw from the system was often powerful, many lawyers played a courageous, sometimes heroic, part in the struggle for justice.
A lawyer may, however, decide that his or her participation in the legal system serves to legitimate it. This is a perfectly proper moral response. But it does not follow that the dilemma is therefore the same as for the state official. This is because of the important functional differences between the two. In particular, lawyers, unlike judges, are not concerned exclusively with the forensic process. Indeed, lawyers do some of their most worthwhile work when they advise clients of their rights, whether or not litigation is intended or anticipated. Thus, while appearance before the court may be regarded as a more palpable acceptance of its legitimacy, advising clients may not.
The law lays down certain ground rules. Murder is wrong. So is theft. Legal rules against these and other forms of antisocial behaviour are the most obvious, and the most conspicuous, instances of legal regulation. Modern governments seek to persuade us to behave well by means other than compulsion. Often the carrot replaces the stick. Advertising campaigns, official websites, and other forms of public relations exercises exhort us to do X or avoid Y. But by setting standards of conduct, the law remains the most powerful tool in the hands of the state.
Further, the law establishes a framework within which unavoidable disputes may be resolved. Courts are the principal forum for the resolution of conflict. Almost every legal system includes courts or court-like bodies with the power to adjudicate impartially upon a dispute and, following a recognized procedure, to issue an authoritative judgment based on the law.
The law facilitates, often even encourages, certain social and economic arrangements. It provides the rules to enable parties to enter into the contract of marriage or employment or purchase and sale. Company law, inheritance law, property law all furnish the means by which we are able to pursue the countless activities that constitute social life.
Another major function of the law is the protection of property. Rules identify who owns what, and this, in turn, determines who has the strongest right or claim to things. Not only does the law thereby secure the independence of individuals, it also encourages them to be more productive and creative (generating new ideas that may be transformed into intellectual property, protected by patents and copyright).
The law seeks also to protect the general well-being of the community. Instead of individuals being compelled to fend for them, the law oversees or coordinates public services that would be beyond the capacity of citizens or the private sector to achieve, such as defence or national security.
Another dimension of the law that has assumed enormous proportions in recent years is the protection of individual rights. For example, the law of many countries includes a bill of rights as a means of seeking to protect individuals against the violation of an inventory of rights that are considered fundamental. In some cases a bill of rights is constitutionally entrenched. Entrenchment is a device which protects the bill of rights, placing it beyond the reach of simple legislative amendment. In other jurisdictions, rights are less secure when they are safeguarded by ordinary statutes that may be repealed like any other law. Almost every Western country (with the conspicuous exception of Australia) boasts a constitutional or legislative bill of rights.
The sources of law
Unlike manna, the law does not fall from the sky. It springs from recognized ‘sources’. This reflects the idea that in the absence of some authoritative source, a rule that purports to be a law will not be accepted as a law. Lawyers therefore speak of ‘authority’. ‘What’, a judge may ask a lawyer ‘is your authority for that proposition?’
In reply, the common lawyer is likely to cite either a previous decision of a court or a statute. A civil lawyer will refer the court to an article of, say, the civil code. In either case, the existence of an acknowledged source will be decisive in the formulation of a legal argument.
In addition to these two conventional sources of law, it is not uncommon for the writings of legal academics to be recognized as authoritative sources of law. There are also certain sources that are, strictly speaking, non-legal, including (though it may be hard to believe) common sense and moral values.
The stereotypical source of law in contemporary legal systems is the statute enacted by a legislative body that seeks to introduce new rules, or to amend old ones – generally in the name of reform, progress, or the alleged improvement of our lives. Legislation is, however, of quite recent origin. The 20th century witnessed an eruption of legislative energy by law-makers who frequently owe their election to a manifesto of promises that presumes the existence of an unrelenting statutory assembly line. In most advanced societies, it is not easy to think of any sphere of life untouched by the dedication of legislators to manage what we may or may not do.
Statutes are rarely a panacea; indeed, they not infrequently achieve the precise opposite of what their draftsmen intended. Moreover, language is seldom adequately lucid or precise not to require interpretation. The words of a statute are rarely conclusive; they are susceptible of different construction – especially where lawyers are concerned.
Inevitably, therefore, it falls to judges to construe the meaning of statutes. And when they do so, they normally create precedents that provide guidance for courts that may be faced with the interpretation of the legislation in the future.
A number of technical ‘rules’ have developed to assist judges to decode the intention of law-makers. A classic example that demonstrates the various approaches to the legislative interpretation is a hypothetical statute that prohibits ‘vehicles’ from entering the park. This plainly includes a motor car, but what about a bicycle? Or a skateboard? One solution is to adopt the so-called ‘literal’ or ‘textual’ approach which accords the text in question its ordinary everyday meaning. Thus the definition of a ‘vehicle’ would not extend beyond an automobile, a truck, or a bus; bicycles and skateboards are not, in any ordinary sense, vehicles. Where, however, the plain meaning gives rise to an absurd result, its proponents concede that the approach runs into trouble, and the words or phrases in issue will need to be interpreted in a manner that avoids obvious illogicality.
A second approach seeks to discover the purpose of the legislation. In our example, we may conclude that the purpose of the provision is to secure the peace and quiet of the park. If so, we are likely to find it easier to decide what is the real intention of the legislation, and hence to distinguish between a car (noisy) and a bicycle (quiet). This approach also permits judges to consider the wider purposes of the legal system. Where either the narrow or broader purpose suggests an interpretation different from the literal meaning of the language, the purposive approach would prefer a liberal to a literal interpretation.
It is an approach that holds sway in several jurisdictions. Courts in the United States routinely scrutinize the legislative history of statutes in order to resolve ambiguity or confirm their plain meaning. A similar approach is evident in Canada and Australia.
And under the European Communities Act of 1972, a court is required to adopt a purposive approach in construing legislation that implements European Community (EC) law. Indeed, since EC legislation tends to be drafted along civil law lines – expressed in fewer words than common law statutes, but with a high degree of abstraction – a purposive approach is unavoidable, and broad social and economic objectives are frequently considered by the courts. The European Court of Justice also tends to favour a purposive approach.
It is, I think, fair to say, that there is no single ideal approach to unlock the door to an ideal construction of a statute. Indeed, there is considerable doubt as to whether the ‘rules’ are, or can be, uniformly applied. No less a distinguished author on statutory interpretation than Professor Sir Rupert Cross shared the doubts expressed by his Oxford pupils:
Each and every pupil told me there were three rules – the literal rule, the golden rule and the mischief rule, and that the courts invoke whichever of them is believed to do justice in the particular case. I had, and still have, my doubts, but what was most disconcerting was the fact that whatever question I put to pupils or examinees elicited the same reply. Even if the question was What is meant by ‘the intention of Parliament?’ or What are the principal extrinsic aids to interpretation? Back came the answer as of yore: ‘There are three rules of interpretation – the literal rule …’
Common law rules of statutory interpretation
The literal rule
If the language of a statute be plain, admitting of only one meaning, the Legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced though it should lead to absurd or mischievous results.
Lord Atkinson in Vacher v London Society of Compositors  A.C. 107, 1211
The golden (or purposive) rule [The] golden rule … is that we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification, and to justify the Court in putting on them some other signification, which though less proper, is one which the Court thinks the words will bear.
Lord Blackburn in River Wear
Commissioners v Adamson (1877) 2 App Cas 743, 764–5
The mischief rule (or the rule in Heydon’s Case) In applying the mischief rule, the court is required to ask four questions: (1) What was the common law before the statute was passed? (2) What was the defect or mischief for which the common law did not provide? (3) What remedy did the legislature intend to provide? (4) What was the true reason for that remedy?
Heydon’s Case (1584) 3 Co Rep 7a, 7b
Moreover, there are those who cynically contend that the rules simply justify solutions reached on wholly different grounds. Another difficulty intrinsic to the legislative process is that law-makers cannot be expected to predict the future. Legislation designed to achieve a specific objective may fail when a new situation arises. This is especially true when innovative technology materializes to confound the law. Some of the awkward challenges to the legislation on copyright or pornography posed by the rise of digital technology and the Internet.