Should Academic Lawyers Want To Be Understood By The General Public?

There was a dispiriting moment in the Q and A session after Professor William Twining’s excellent address to the Society of Legal Scholars last Thursday, on the need to foster the public understanding of law. An academic colleague described how the business of writing his academic treatise meant he had little time for other, non university stuff, dealing with the media for example, or making submissions to a parliamentary body on a matter on which he is expert. But how many people will read your book, was Professor Twining’s reply – and it was left rather hanging in the air.

At a time when the public purse is being so closely scrutinised, do those of us who make a living off the taxpayer in the higher education field not have some sort of obligation to explain what we do? After all I get a lot more money than an MP, and it strikes me that my accounting for it should include learned books maybe, but well-prepared teaching and efforts at public engagement for certain. Surely there are enough hours around to be able to teach say an average of four or so hours a week (over the year) and write a few words a day for the tiny circle of readers of the specialist stuff, while also being able to help colleagues run the Department and still having enough time left over to be able to engage with the general public as and when the opportunity arises?


Israel’s attack on Gaza is its consolation prize for not being allowed bomb Iran: like a school bully denied the chance to attack another Form, it has picked on some small kids in the playground so as to satiate its anger. Is there any way that, out of the suffering of the inhabitants of Gaza, something positive can be forged? The key is President Obama, the new head teacher at whom the bully’s message is also aimed: will he cower like the vast majority of his predecessors, more concerned with lobby popularity than with moral purpose, or is there more to him than this? Let us assume Obama knows full well both how shameful is America’s association with Israel and how senseless is his nation’s collusion in such vast criminality. There are ways of marking this without making it explicit and thereby unleashing the pro-Israeli forces against him at too early a stage.

It is already clear that the new Administration desires to re-engage with the global community and to revive its commitment to international law: the ‘war on terror’ will be reconfigured and Guantanamo closed. A rededication of the US to law should also involve a more consensual approach to the UN in general and to Security Council business in particular, and this should include (for example) support for UN investigative missions to regions where egregious violations of human rights and breaches of the UN charter need to be investigated. It should entail signing up to the International Criminal Court – and urging its closest allies to do likewise. Done in this way, US engagement in the international human rights agenda would quickly lead to a re-empowerment of the various forces for good, the rapporteurs, special representatives, committees of experts and so on, that have languished on the margins for so long.

All of this reformist energy would then need to be backed by mechanisms linking US financial and military aid to the newly emerging international legal order, a fresh set of McBride principles of the sort that eventually forced South Africa racism to its knees. And economic and intellectual boycotts would also need to be framed so as to lie in wait for the worst offenders against the new dispensation. Since its application would be general, Obama could do all this without ever mentioning Israel, leaving the consequences to be worked through by various bureaucracies while the ‘phone calls and special pleas of Netanyahu or Livni or Barak or whoever it is go either unreturned or politely fended off with an easy ‘it is out of my hands’. When the screams of the special interests reach dangerous levels, the president may then judge it to be necessary to take the issue to the American people, to discuss openly whether Israel should have a special exemption from the civilised values to which every other true ally and the US itself will by then have signed up. That is not likely to be a debate which the Israeli leadership will especially want.

Dreadful though they are, it is just possible the killings in Gaza may prove to be the beginning of the death rattle of Israel’s disastrous plunge into militant Zionism.

The Economic Collapse

The great good fortune is that these events have taken place before not after the US presidential election: had this happened in March 2009, and had Obama won a tight contest he would have been powerless for a disjointed four years. Now, instead, not only is he more likely to win (if only because, in the welter of real news the Republicans have been unable to mount their usual campaign of concerted character assassination, and so have lost vital weeks of pre-election Attwater activity) but he is also more likely to be able to govern. Expect a great shift in our language towards equality and fairness: socialism may not be back yet, but social justice is.

Should Ian Blair resign?

I have not liked the Metropolitan Police Commissioner Sir Ian Blair since one of my students of many years ago – a police officer who received the George Medal for bravery in confronting an IRA gang in London in 1975 – felt compelled publicly to contradict the Commissioner’s account of his (allegedly central) role during the same incident. If Sir Ian could be so casual about the truth in relation to his highly peripheral involvement in the Balcombe Street siege, what kind of an approach did he take to his day-to-day work at the Met? Now, thanks to the conviction of his force for breaches of health and safety law arising out of the shooting dead of Jean Charles de Menezes on 22 July 2005, we know something of this, and what has emerged is extremely disturbing, both in terms of the Met itself (a force out of control) and at a personal level as well (a chief officer mislead by his own senior officers). There is more to come on Thursday when the Independent Police Complaints Commission (IPCC) publishes its account of the killing, an investigation which Sir Ian tried hard to stymie. Stoutly defended by those in authority, the Commissioner is nevertheless under increasing pressure to depart his office, the media criticism rising daily to a crescendo which few public servants would be able to resist.

Should Blair resign? The constitutional answer, at least pending the IPCC report, is clearly no. The purpose of the prosecution of the Metropolitan Police Service that produced last week’s conviction was to hold the organisation, not any individual within it, criminally responsible for the mistakes that in combination cost Mr de Menezes his life over two years ago. The relevant authorities had looked carefully at, and ruled out, bringing charges against particular officers. The law is clear that the appropriate accused in health and safety cases is the culpable corporate entity, not any of its senior officers. Nor should the range of mechanisms of accountability which are in place to oversee the conduct of the Metropolitan Police Commissioner be ignored simply because they do not produce the dismissal (or insistence on resignation) that the media demand: the Metropolitan Police Authority, the London mayor and the Home Secretary have a duty to interpose their own rational assessment of what is required between the public and the media on the one hand and an embattled Sir Ian on the other. This support may erode with publication of the IPCC report but the present indications are that it will add nothing radically new to what is already in the public domain. The Commissioner is technically entitled to stand his ground, saying that there is no seismic explanation for the earthquake that is threatening his position on the highest perch in British policing.

In the UK constitutional system, however, it is rarely safe to rely on technicalities. The untenability of Sir Ian’s position does not derive from the law nor from any particular action on his part (though the perception of a pattern of sharp dealings – of which the Balcombe Street false reverie was one – has not helped). Rather it is a matter of the withdrawal of public confidence, the sucking away of respect that can almost be physically heard and of which the hostile media are mere messengers. This derives in turn from a strong sense that the force’s conviction under health and safety legislation was simply not enough to capture the full sense of what was wrong about the killing of Jean Charles de Menezes. It seems almost insulting to treat the shooting as though it were some kind of accident at work, when in fact it was no such mishap but rather a series of shots fired into an already apprehended suspect with the intention of killing him. The relevant officers having escaped all charges for murder or even manslaughter, it was inevitable that once these facts became known the furore would grow for a greater level of accountability than has occurred here. Trapped by the decision not to prosecute the officers concerned, the Commissioner cannot say the obvious, that they stepped outlandishly out of their mandate when they acted as they did. As a result he must now take the rap for charges that were never brought.

In the absence of any murder charges, much better in this case would have been proceedings under the Human Rights Act for a breach of de Menezes’s right to life under Article 2 of the European Convention on Human Rights. Since the controversial ruling of the European Court in the Gibraltar case in 1995 (arising out of the SAS shooting of three IRA operatives on that island), it has been accepted that this provision imposes obligations on a state not to construct a counter-terrorist operation so badly that the officers on the ground end up believing that they have no option but to kill. The array of errors uncovered by the prosecution in the de Menezes case recalls the mistake-strewn run-up to those particular shootings. This would have been a better basis for a court to have probed why it was that so many officers had persuaded themselves that this innocent commuter was a dangerous terrorist who had to be stopped at all costs.

The answer might well have been found in the very language of terrorism itself. Though it emerged in the course of the criminal proceedings that the policing choices which were to lead to de Menezes’s death were not part of Operation Kratos, the then secret shoot-to-kill policy which the police had put in place to tackle suicide bombers, the quasi-military atmosphere of such deadly counter-terrorism manoeuvres hung over the whole affair. Once the police had persuaded themselves that they were facing a fanatical terrorist rather than a potential criminal, the urge to stop at all costs inevitably overwhelmed the more traditional instinct to apprehend and to charge. It is in the way that it disrupts our sense of justice and fairness and our instinct for proportionality that the language of terrorism does so much of its most damaging work, making police actions like this highly likely at times of high anxiety, and inuring us to draconian invasions of our rights that we would otherwise refuse to countenance. The pressure on Sir Ian is not an explosion of irrational wrath but rather reflects the great anxiety that is felt by many about the way in which the counter-terrorism atmosphere of our times is slowing (but inexorably?) changing the character of the society in which we live.

Luck & The Irish

If Ireland were ever to spend some of its recently acquired vast fortune on a ‘Museum of National Treasures’, Roy Foster should be asked to open it. This occasionally angry, sometimes whimsical and frequently hilarious account of the Republic of Ireland’s ascent from gombeen-land to the happiest place on earth (according to the Economist in 2004: ‘Gratifyingly for many Irish people, the UK languished at twenty-ninth’) is exactly the kind of sharp affectionate smack across its purring head that the Celtic tiger needed from the premier historian of the place it used to be. Foster is however clearly with the ‘Boosters’ of the new Ireland rather than the ‘Begrudgers’: for all his criticisms (and there are many in the book) in the end ‘it is hard not to … recognise that in several spheres, not just the economic, a certain amount of good luck was maximized by good management’.

Like the good historian he is, Foster traces the changes further back than is usual: to the first stirring of a new economic order in the late 1950s; to the passing of the ancient regime of Church (Archbishop John Charles McQuaid) and State (President de Valera) in the early 1970s; to the energies unleashed by entry into the Common Market in 1973; and then finally (perhaps even above all) to the opening up of this luckily English-speaking (despite their best revolutionary efforts!), well-educated people to foreign investment at exactly the moment when not having had an industrial revolution became a strength rather than a weakness. In five substantive and elegantly written chapters, which carry off the trick of being able to appeal simultaneously both to those who know nothing and to those who think they know everything, Foster weaves all the various threads into a tapestry of great beauty before ending on the celebratory note that he is right to intuit that this remarkable tale demands. Warnings can come later; for now, ‘understanding the future requires an expanded sense of what has just happened, and a map of the landscape receding so bewilderingly behind us’.

Though sensitive to deep structure, the book stocks its chapters with a pleasing array of heroes. There is Michael Killeen thinking about external investment at a time when ‘inward capital investment [was] viewed with deep suspicion’. There is Mary Robinson courageously taking on reactionary Ireland from an absurdly young age, and not letting go until her work is done. The decent Fianna Fail leader Jack Lynch – modest, and on Northern Ireland way ahead of his time – is justly reclaimed from a party that has airbrushed him from history. Even Bob Geldof is given his due, in a marvellous final chapter on culture and literature, as ‘the late-twentieth-century Irish icon who achieved global status by using his formidable abilities and influence to attack global issues’. But above all this book is an understated paean of praise to Garret Fitzgerald, the man who saw it all first: the need for economic progress; for constitutional change; for conciliation with the Unionists in Northern Ireland; and who then had the tremendous courage to come out of his ivory tower so as to fight to give Ireland what he knew was her due. This included the at the time seemingly startlingly bad-tempered Dáil speech with which he greeted Charles Haughey as Ireland’s new prime minister. Haughey, ‘an odd combination of Napoleonic enigma, Ascendancy hauteur, Gaelic chieftain and Tammany boss’ is the true villain of this book – the man himself and the crooks and blaggards that surrounded him, feeding their own villainy out of the trough of corruption that under Haughey was always sure to be overflowing.

Ireland has survived him, just as it has survived ‘the troubles’ in the North: Foster is tough on but understanding of John Hume, while reserving a contempt for Gerry Adams which borders on the personal. Above all Ireland has survived the extreme version of Catholic authoritarian fundamentalism from which it seemed until as late as the 1980s it could never escape. In a magnificent reply to critics of his earlier revisionist work on Ireland, Foster ends his chapter on the Catholic Church by observing that ‘if one looks at the Republic of Ireland over the last thirty years in religious terms, it is hard not to think of that standard exam question for students of Irish history: “Why did the reformation not succeed in Ireland?”’ And answer: “It did, but it took four hundred and fifty years.”’ Foster should not be opening our hypothetical Irish museum of national treasures: he belongs in it himself.

Amazon has the book for sale.

A Comment on The Visit of President Kagame to The Centre For The Study Of Human Rights

The President of Rwanda Paul Kagame is my my first guest at LSE this term. His schedule includes an address to the centre on development, climate change and human rights. There has been some controversy around the visit. Some people are critical saying he has committed human rights violations. Why have I invited him to speak at my centre?

The first point to note is that the President has been elected by an overwhelming majority of his people. The Foreign Office noted some problems with that election but overall comments that they were ‘generally well-run and orderly’. The elections were held under a constitution that had been agreed by referendum, again by a large majority. This constitution (2003) followed a long period of government in which power had been shared under the Arusha accords (1993).

While in power, Paul Kagame has overseen the establishment of a National Human Rights Commission. He has also announced a National Human Rights Campaign, and this year Rwanda abolished the death penalty. Though his country remains very poor, the Foreign Office comments that ‘since 1994, [Rwanda] has made significant progress in uplifting the traditionally poor socio-economic indicators.’ Enrolment in primary school is now at 94%.

Of course there is a history of violence in Rwanda. Kagame had to leave the country with his family as a result of attacks on the Tutsi people in the early 1960s. After the 1994 genocide, many of those responsible fled to Zaire (as it then was) from which some at least launched attacks into Rwanda. The Rwandan army invaded the country twice (1996 and again 1998). I appreciate that not all would agree with the entirety of the official claim that Rwandan forces withdrew in 2002, or that these incursions were solely to deal with attacks by exiled Hutus. But that there were attacks and that they were perpetrated by people who had already been intimately involved in the killing of some 800,000-1m people cannot be denied.

President Kagame is not an indicted war criminal, though there are French moves to have him prosecuted. (France has long been involved in the region and the recent opening of archives has revived questions of the exact extent of its support for the leadership that perpetrated the genocide in 1994).

President Kagame comes to the Centre to speak about development and human rights in the context of climate change. He is the African Union spokesperson on climate change. The President has not asked to control the composition of the audience and is aware there is a question and answer session afterwards: I understand he is prepared to answer whatever comes from the floor. In the spirit of open debate I would ask those sceptical of the President to come, to listen and then to make their point.

Can Animals Have Human Rights?

The question seems absurd until you realise that it is an ill-conceived way of putting a deeper point that is harder to refute: what makes human beings so special that they – and they alone among the animals – warrant the protection that flows from being entitled to rights? The usual stock answers to this are not as satisfactory as maybe once they were. First we used to say that humans as possessors of a soul were uniquely special and therefore entitled to things in a way non-humans were not. But the soul idea has taken a bit of a battering of late, and many people who believe in human rights feel they can commit themselves in this way even though they don’t think they have a soul lurking within them.

Often these are the people who turn to the rationality of man/woman as the reason for the uniqueness of this category of animal: unlike the rest of the living things on the planet, we humans can plan our actions, reflect on our life goals and how to achieve them, and generally behave in a thoughtful as well as a feeling way. In other words we have autonomy and as autonomous beings we have an interest in freedom which is nothing like (being far superior than) what other animals can possibly enjoy. This is good so far as it goes but doesn’t deal with two facts. First, many humans are not capable of enjoying their autonomy in this way and yet despite this (perhaps even especially because of this), we persist in thinking of them as human. Second, some non-human animals (eg whales, great apes, but there are others) do show evidence of this kind of personhood, so if this is the criteria that determines which animals have rights, should they not join the human category as rights-holders?

So how do we avoid saying that (certain) animals have rights? Maybe we should not try to. Perhaps there is another narrative under the surface of the religious and rational stories which have linked humans (and humans alone) so indelibly to rights in the past: both faith and reason have been concerned to produce ethical frameworks for good living, and a measure of goodness has in each case being the way we have treated the vulnerable and the weak. Traditionally these have been the human vulnerable and the human weak, but there is no necessary reason why we should allow this species-categorisation unnecessarily to limit our subject. If that is right, then we can talk of supporting the idea of rights for animals as a way of expressing our desire to protect animals from the horrors done to them by the abuse of human power.

Three glosses on this are necessary I think. First, not all animals would enjoy rights in the same way or to the same degree, and certainly the rights aimed at the human animal would not translate automatically to the rest of the animals. It would depend on capacities to feel pain and to engage in rudimentary conscious engagement with the world, in other words (to adapt a phrase while reminding us of the potential exploitation in it) it should be ‘horses for courses’. Second, since many human rights are already susceptible to exceptions based on the greater good of humankind, there should be do difficulty in developing exceptions with regard to particular categories of animals (in the interests of the animals) so as to avoid absurdity. And thirdly, again as is the case with the more ambitious human rights, to frame a right here is not, in the absence of direct enforceable unequivocal legislation, to insist on its immediate application: we can declare and agree animal rights as goals in the way that we already have decided that humans should have a right to food or to shelter: the fact that many don’t is a cause for concern not a basis for refutation.

These thoughts have been provoked by an excellent conference run by Professor Andrew Linzey’s Oxford Centre for Animal Ethics at Keble College Oxford on 18 September. What do you think? Are there gaps in the argument, places where the thesis can be tightened? Or have I got the argument completely wrong? . Is this the right approach for those concerned about animal welfare to take?