The Society of Legal Scholars in Dublin

Well it was a special thing to give the After-Dinner talk at the Society of Legal Scholars  Conference in Dublin last night.  Here is the hall being set up and full as it was last night it is a glorious space. The conference itself is being held at UCD where I was a student many years ago and this is the first occasion the Society has ever held its annual event outside the UK. All very moving for me.

Inevitably I talked about Brexit and argued that in Ireland there is a special obligation to assist the UK at this hour of terrible need. (As those of you reading this who know my work will know I am an ‘extreme remainer’!)  Ireland’s common law traditions and its long close association with Britain (or do I mean quasi-colonial domination?) will post Brexit make it a powerful bridgehead between a declining Britain outside Europe and the rest of the EU.  To be effective, it is vital that somehow or other Irish-British relations survive the horrible years of rupture that inevitably lie ahead, so that when common sense returns the Irish are ready to assist.

Is this unduly provocative? Or patronising?  I don’t think so. In the speech I identified six arguments for BREXIT, and found none of them persuasive.  The first three are more or less the same: Brexit proponents frequently explain themselves by attacking the EU (either (i) ‘it is corrupt, venal, hopeless’ or (ii) ‘it is about to fall apart’) or (iii) attacking the people in favour of remain (‘liberal elites’; ‘experts’ etc) as out-of-touch with the people.  None of these positions is an argument. They are just ways of changing the subject since all might be true but the question of whether the EU is so important that the costs – if they really exist – need to be accepted is as a result of this shift invariably dodged. The fourth (‘taking back control’) has been laid to rest by the Government itself whose key white paper has admitted that parliamentary sovereignty was in truth never subverted by the EU but that ‘it just felt like that’. The fifth – the people have spoken – is another procedural trick to avoid any discussion of substance; deployed by the other side it would render all argument after the 1975 referendum illegitimate, an idea that would have been rightly rejected by all those pushing for the more recent referendum.  Democracy is by definition about fluid decision-making. The sixth argument is the strongest – we need to disrupt everything to make progress. Brexit throws all the cards on the table, the game of Britain begins afresh – all will be fine even if there are short term hiccups.  Maybe.  But how things will be fine and what fine will mean are never defined.  This is some risk to take with a people no longer able to rely on colonial territories for the easy accumulation of wealth.

Sinn Fein means ‘Ourselves Alone or ‘We Ourselves’ in English.  How will the UK enjoy being the new Sinn Feiners?  Not very much I confidently predict.  That’s when the old Sinn Feiners (of all contemporary political persuasions), now confidently cosmopolitan, will be needed to help rescue a country drifting aimlessly ever further out into the north sea.

On Fantasy Island

My book On Fantasy Island. Britain, Strasbourg and Human Rights will be published by Oxford University Press in July, with the proper launch being in September. I did a lecture a while back with this title – a summary of which you can read here . The book explores the various myths, illusions and occasional downright deceptions that have marked the attitude of our two main political parties, but especially the Conservatives, to the Human Rights Act since it was enacted in 1998. After going through these fantasies I outline the facts behind the Act and then end with some thoughts about the future.  About 80,000 words – an antidote, I am hoping, to the infections of noisy nonsense that the Act has attracted. The test of the value of a law lies in the sort of enemies it attracts.  On this basis alone the Human Rights Act would be worth defending!

Watch out for my new web site devoted specifically to the book, coming soon.  I’ll be including long extracts from it there, and comments on the latest speeches on rights as and when they emerge – like Theresa May’s yesterday, on which as well more later (very soon in fact).

The Rule Of Law In Europe: Friend Or Foe Of Democracy?

Abstract:

The reaction to 11 September damaged the liberty of those living in Europe who found themselves targeted as suspect terrorists while seeming to do little to ensure the security of the wider community. More recently a second emergency, rooted this time in the financial and economic collapse of 2008 onwards, has caused a further unraveling of Europe’s constitutional project, even threatening the gains of past generations of European idealists. In today’s Europe universal liberty and security have no meaning for many even if their shape is retained in structures that in truth mock rather than deliver democracy and human rights. This talk traces the origins of the crises that have afflicted so directly the breadth of liberty and human security in the Union, demonstrating their roots in ‘viruses’ that have been present from the start of the European movement but which have now spiralled out of control. The lecture ends by asking what can be done to prevent the full decline of the region into a state of neo-democratic/post- democratic unfreedom, one in which capital unbound from democracy thrives at the expense of the people.

The state of freedom in Europe

What resources does Europe in general and the European Union in particular have to resist a world  in which as one scholar has put it ‘core democratic institutions, such as parliaments or recurring elections, stay formally in place while the substance of political decision making is no longer determined by active citizens and their representatives’? And we should add while the law comes and goes as neo-liberal exigencies demand, and human rights rhetoric grows ever louder as its real impact on the ground diminishes ever further?  Pushing the point even more, is it right that as the sociologist Wolfgang Streeck has said, ‘one cannot but be afraid of the possibility of a new, however temporary, settlement of social conflict in advanced capitalism, this time entirely in favour of the propertied classes now firmly entrenched in their politically unconquerable institutional stronghold, the international finance industry’?

This crisis in Europe has not come from nowhere: it is a creature of three fundamental weaknesses that have dogged the Community since its modest inception in the 1950s.  First there is the never-resolved question of national identity.  The European project has been strong enough to make progress towards the idea of a Union but never strong enough to make it matter on the ground.  Where once nation states pirouetted around their sovereignty while conceding enough to facilitate European progress, now increasingly states build walls – metaphorical and real – to defend their national interests, displaying chauvinism as a matter of pride rather than of reluctant electoral necessity.

Second there has been the unresolved question, raised when the issue of a European Constitution was mooted but left to one side at that time, of whether the European space is a Christian one or at least a culturally Christian one (whatever about belief in the risen Christ).  The antagonism to Moslem peoples that we see across Europe today reflects a deep-rooted sense of their being different, one that has been greatly exacerbated by the attacks of 11 September and the politically-inspired atrocities that followed within Europe in (for example) Madrid, London, Burgas in Bulgaria and Paris. Europe may not have re-embraced its Christianity but it has increasingly developed a tendency to articulate values rooted in the past and which reflect the post-Christian secularism of the moment in a way that for all its invocations of universalism is just as divisive (and marginally less honest) than the religious partisanship of the past.

Thirdly there is the Union’s long attachment to the moral force of the market, benign enough when it was a merely an aspirant Common Market seeking to make war impossible in a region that had been a killing zone for generations,  but deadly now when the neo-liberal virus of market power has not only destroyed the economies of many European states but then insisted on further destruction as a remedy for the damage it has already done: like asking a poisoner how to solve a problem which has been caused by his own application of strychnine; naturally he will suggest more poison.  It is the neo-liberal contagion wreaking havoc outside Europe that together with big-power-induced instability that has sent desperate people towards Europe in what looks like it might be millions.

Can Europe cope? The refugee crisis that burst fully in 2015 and just alluded to may indeed be the final straw for the Union, the point at which the three viruses of national selfishness, racist intolerance and the decay of life-chances produced by neo-liberalism the world over come together in a perfect and destructive storm.  There is pushback in the courts from time to time, both at Luxembourg and in the European Court of Human Rights in Strasbourg. The European Parliament may be relied upon to raise the issues of democratic engagement that are missed elsewhere, indeed can sometimes manage the occasional bite despite the leash on its powers severely curtailing its movement.  Social movements influence public debate as well, though less than such aspirant social movers would like. The fact that for many the best way of moving forward is to rely on the democratic energy of ‘the people’ may be evidence of despair or determined optimism, or indeed both. We must hope that the high point of the fever is upon us and the patient is about to begin recovery. Optimism of the will is vital exactly when the intellect sees no escape from pessimism.

If I Were Prime Minister

IF I WERE PRIME MINISTER I would immediately announce my intention to resign, in exactly one year.  With my Party safely on side and the succession secured, I would embark on my LAME DUCK QUACKS tour.  Once every ten days I would give a speech, 36 in all, picking out key themes for discussion and debate.  My political suicide would have freed me to speak the truth: that Britain is a small place that should stop pretending it is a power, much less a super-power; that the future depends on sibling and not just neighbourly relations with Europe; that immigration is what Britain is not what Britons should fear; that the country is horribly class-conflicted with the engine of inequality being driven not by the poor but by the upper middle class with their different schools, accents, health plans and gated communities; that the ‘free press’ is merely the commercial tool of capitalists who trade of the worst instincts of the people for their own gain; that the green belt is a rust belt standing in the way of British homes; that reindustrialization is a fantasy but that the skills to cope with post-industrial Britain can only be delivered by the higher taxation needed to fund the better schools and colleges we need.

My agenda being set in this way I would turn to Parliament. Each speech I make would be accompanied by a Bill that I would table, ignoring the need for the support of colleagues.  The radicalism of these proposals would doom them all to failure, and – knowing that – I would convene parallel discussions around the country on the measures that I would be failing to secure. The public would be gradually drawn to these honest if uncomfortable sessions just as they had been to my LAME DUCK QUACKS tour.  What begins as eccentric would come to grip the country, honest expression of the difficult being quickly preferred to the deceitful verbiage with which my speeches and bills were increasingly being greeted (by political friends and foes alike).

Lengthening prime ministers questions to one hour, I would refuse to answer fatuous questions, and disdain fawning ones too.  If my answer were not being heard in silence I would stop speaking – if necessary for the full hour. The Speaker would at my suggestion seek backbenchers who were not known or used to intervening and specifically seek to draw them in.  I would only acknowledge interventions which were signaled gently by hand and would refuse to engage with hecklers or those with a record of heckling.

Questions about whether I was mad would soon come to be replaced by arguments about whether I was right. The culture would be beginning to change just as the giant tutorial it represented was winding to a close. When the final speech’s final Bill is defeated in the House of Commons (to turn private schools into civic spaces for skills-training), I would sign off on Twitter, close down my Facebook account and head back to the LSE where I used to work. Would I get my old job back? Probably not: no publications over a whole year and zero impact. Depends though on what you mean by impact….

Devolution

The debate in the UK regarding devolution, is in a bit of a mess. Three separate processes are rumbling on for Scotland, Wales and Northern Ireland, each at a different speed. Calling the situation within England a “process” would be overly generous. Last year, George Osborne announced plans to establish a Greater Manchester Combined Authority (quickly and inevitably dubbed “DevoManc”). This body was negotiated in secret between Manchester council groups and George Osborne himself, and seems to offer us little in the way of a model that might be adopted for other areas. Demands for devolution to the English regions, or even an English Parliament, have yet to result in anything tangible.

Both Labour and the Liberal Democrats have committed themselves to the creation of a constitutional convention to tie these threads together and form a more cohesive process. But aside from the need to have such a common line, what approach should it adopt?

As part of our ConstitutionUK project, we have been exploring various models of devolution. Broadly, there appear to be two alternatives the UK might adopt: a big bang, federal model, established over a relatively short period of time; or an evolutionary, multi-speed approach, with various parts of the UK moving along at their own pace.

“Big bang” federalism has several things going for it in terms of consistency and simplicity. If tidiness were our top concern, it would be the automatic choice. However, it is clear that the nations in the UK are all at different places right now; marshalling them all into a “one size fits all” may result in a stalemate as, effectively, the process will have to go at the speed of the slowest participant.

A multi-speed approach avoids that, but presents its own challenges, and greatly increases the scope for confusion. Of course, in effect that is what we have right now. But it could be made more systematic, and the power to initiate the process of devolving powers could be taken out of the hands of Westminster (what Nick Clegg has dubbed “decentralisation on demand”). So, rather than spelling out the precise powers nations, regions and local government should have, our new UK constitution could simply detail the process by which those bodies might acquire such powers. Such an approach would be more along the lines of the constitution of Spain and its “autonomous communities” compared to, say, the United States.

The elephant in the room is what to do with England. Should it be treated as another nation state, alongside Scotland, Wales and Northern Ireland, despite it having more than five times the population of the other nations combined? Does replacing a parliament with responsibility for over 64 million people with a parliament with responsibility for over 53 million people even count as devolution, as far as the day-to-day lives of people are concerned?

So should we split England into regions which, when it was tried, came to a grinding halt with the referendum for a North East assembly in 2004? Or should our attention be more directly on local government? The focus in Westminster recently has been on the latter, and more specifically on “city regions”. But that still leaves significant questions to be answered over what should happen in the bits of the country which cannot reasonably be regarded as part of a conurbation.

These are thorny questions on which we are looking for people’s views over the next few weeks. Our community has already come up with dozens of suggestions we would like your response to. In this case (if in no other) you are very much encouraged to vote early and vote often!

Guerrillas

We the LSE guerrillas take our stand against the lack of creativity and imagination in university teaching today.  Why must class be scheduled in the way it is?  How are lectures to be treated as fresh and lively if they take place at the same time and in the same place on a regular basis, and deal only with topics that have been anticipated, set out in advance and generally drained of life?  What is this about disciplines, as though the world were segmented into silos – marked LAW, ECONOMICS, SOCIOLOGY and so on – and not the messy confusion of rival ideas that it is in reality? Why do some humans claim a greater right to teach than others based simply on the arbitrary title PROFESSOR – good at school and afraid to leave it for real life, all that they now bring to others is prejudice amplified by wider reading.

Agreed at our inaugural meeting two years ago, the Guerrilla Manifesto

  1. deplores the concept of the pre-ordained in teaching;
  2. demands that all ‘teaching’ engagements be SURPRISE INTERACTIONS WITH LEARNING;
  3. calls for teaching that is SPONTANEOUS, UNEXPECTED, MYSTERIOUS and therefore MEMORABLE;
  4. recognizes as teaching only that work in which KNOWLEDGE IS CO-PRODUCED BY ALL THAT ARE PRESENT: truth is no longer the preserve of the priest, the learned or the ostensibly ‘qualified’ – humanity is our qualification, voice our common means of communication.

Our first action after issuing our Manifesto was to identify a useful idiot, a conduit through which to channel our ideas.  We settled on CONOR GEARTY (under whose name we write this piece) for various reasons: he had just started a new Institute at LSE and was therefore more vulnerable than most, having something to prove, a rationale for his Institute’s existence that he needed to demonstrate; his presence on Twitter and his access to the levers of power within LSE communications, allied to his perceived status within the organization ( ‘a full professor’ – what a pompous comedy!) made him  someone through whom we could work; and by allowing him to believe the Guerrillas was his idea (easily done) we have secured his commitment to something that is in truth way beyond him.

Our first strike was in the crypt of Westminster Cathedral: the first thirty LSE workers (students? professors? staff? – we recognize no such distinctions!) in a flash queue in the new academic building were guided to a grubby street in Westminster when at a preordained time they entered a dark and dank passage that lead beneath the Cathedral to a Holy Place where, surrounded by the tombs of cardinals, they debated the MEANING OF HELL, in the company of the School chaplain Jim Walters, a sociologist of cults  Eileen Barker and an anthropologist with a specialism in humanism Matthew Engelke.

Next up was Highgate Cemetery. We took possession of it one Summer evening when it was ostensibly ‘closed’ (albeit not to the guerrillas!) and after our LSE people had wandered this mysterious place of death we summoned them by bell to the graves of Karl Marx and Herbert Spencer, frowning at each other across a gravelly path, the one a great revolutionary, the other a cheerleader for social Darwinism. Leah Ypi and Tony Giddens debated their merits, both school people immune to status however high they rise and natural sympathisers therefore with the Guerrilla agenda.

Our most ambitious action was our last.  Just a few weeks ago we took possession of LSE Director Craig Calhoun’s apartment (magnificent; opulently overlooking the Thames) for a debate about wealth and higher education.  Calhoun himself was not in though his partner was – her tweets from the upstairs study alerted the Director and on arriving home at 9pm he found us still in deep debate – Nick Barr, Tim Leunig – both faculty workers – were joined by the Student Union’s Nona Buckley-Irvine, and a group of LSE people brave enough to have taken a ticket to an unknown destination one miserable February evening.

Brothers, sisters, trans-siblings: this is just the beginning! As this last action shows, we are growing in confidence, drawing nearer and nearer to the full levers of power.  In education what is power? Not knowledge for we deny there is such a thing, but rather the networks of influence and opportunity that the ostensible search for knowledge at the right place brings.  The right place is LSE, top ranking, international, hugely influential.  If we can realize our Manifesto here we can achieve anything, anywhere. And even if we do not what does our failure leave: memories of unexpected discussions for those courageous enough to have sought them out; debate about topics on which we feel strongly but of which feelings we knew nothing before we had the chance to explore them. If this is failure then we devotedly hope that more lectures and classes should fail more often. Death to routine!

LSE Review Of Books

In the first two years of my time as an undergraduate law student in Dublin, I can’t remember a single book that inspired me.

Sure I read lots of text books – I remember queuing for the first Irish land law book ever published as though it was a Holy Grail of scholarly excellence: we got it from our professor’s room and I’ll never forget the debonair (ie foreign) lecturer in Spanish playing golf in the corridor while we waited (putting not driving).  Some of the books we had to read were mesmerising in their structure and in the glorious pedantry of their assembly of data and organisation of material.  (I particularly remember Evidence by Sir Rupert Cross, a man who had never seen anything having been blinded at the age of one, and Winfield and Jolowicz on Tort, which explained the law of negligence with beguiling simplicity.)

But bedside reading they were not.

And some were truly dreadful – not that you knew that when you were a student of course; naturally you always assumed it was your fault you couldn’t understand a word and fell asleep ever five minutes, not that of the dullard who had droned on assembling the words that were torturing you now.

Then in third year I did a political philosophy course with a Dominican priest and great man Fr Fergal  O’Connor – and discovered university books that could be read for pleasure.  Obvious stuff now maybe – Plato’s Republic; Aristotle’s Politics – but what a dramatic impact they had on me, so much so that I tried to dump law and read politics. Fr Fergal was happy to have me but, like prison guards who relish their job of incarceration, the law people wouldn’t let me go, so on I ploughed after my graduation through endless practitioner texts that made university law school seem a paradise of scholarship.

I escaped to Cambridge where I sought asylum from professional practice by becoming an academic.  The reading gradually got more interesting.  An LSE man’s book on the Politics of the Judiciary made a big impression but everybody at Cambridge disliked it so I kept my mouth shut – John Griffith was ‘too critical of judges’; ‘too left-wing’.  Another short volume, Tragic Choices by a visitor from America Guido Calabresi  and his then colleague Philip Bobbitt showed me a different way of writing.  I sat too in the old Squire law library making detailed notes of books I’d never be examined on – Harold Laski, William Robson, Jerome Frank, Roscoe Pound, the amazing Oliver Wendell Holmes Junior.  Harry Street from Manchester and my own research supervisor David Williams had written books on law stuff which they located in moments of history – these were books that I could understand and connect with.  They were about the law as part of politics not as a thing-in-itself outside human activity.  I devoured them, and when I got a chance to write a book of my own with my colleague and friend Keith Ewing the style I went for was modelled on theirs.

The point of all this is to admit that I am not so good at pointing out great law books that have made a difference to me.

The books that have hit me for six are those which have forced me into new ways of looking at the kind of political law I like: Alexander Bickel The Least Dangerous Branch; John Hart Ely Democracy and Distrust on the US; a wonderful book I bought on Venice Beach in California, Archibald Cox’s The Court and the Constitution; Jeremy Waldron’s edited Theories of Rights, a greatest hits collection of thinkers worth reading. In the early 2000s I spent ages reading and thoroughly enjoying the late Brian Simpson’s Human Rights and the End of Empire – he still loved his history as much as when, years before, he had written a law book about eating the cabin boy (Cannibalism and the common law) which was so good I bought it for my brother as a Christmas present.  Richard Rorty’s Contingency, irony and Solidarity and Philosophy and Social Hope are always by my desk – his collected works are my Narnia cupboard to a secret world of thought I’d never be able otherwise to access. His Achieving our country is a fantastic read.

And recently?

Sam  Moyn’s, The Last Utopia is the best book I have read on where all this human rights stuff has sprung from.

Colin Dayan’s The Law is a White Dog is the most imaginative and passionate (mainly about prison conditions in the US) that I have come across for a long while.

And  Tony Judt’s  Ill Fares the Land is the book I’d most like to have written but never could – simple, clear, confident and unashamedly partisan for the social democracy that he loved and which he saw being beaten down everywhere as his own life gradually closed in around him.

Aileen Kavanagh’s Constitutional Review under the Human Rights Act is a conventional law book but a brilliant demonstration of how to do this sort of thing – and it draws the politics in rather than pretends they don’t exist.

Tom Bingham’s The Rule of Law is like a piece of modern music in the pellucidity of its prose, so good you could almost believe the argument.

And my own reading?

I have just finished Travels with my Aunt by Graham Green whom I always read to enjoy and to remind me of why, despite everything, I am still a Catholic. Cormac McCarthy, F Scott Fitzgerald among the Americans. Colm Toibin closer to home.

But the greatest of them all, whom I will read and re-read to the end of my days, is that wondrous technician of the language and dazzling sentence-creator, a man for whom a semi-colon out of place would be like a vast belch at a discreet dinner party, a writer who rewards concentration by giving you a chance to enjoy a style so sublime you can easily miss the moral intensity of what he is doing,  that great American whose forefathers (I am so glad to say) came from the Irish county next to where I grew up  (though it must be said he hated the link to Ireland), Henry James.