Fascinating essay, thanks for posting it. I believe that one of the side effects of general disdain for the law as written is that it is no longer necessary to apply a working knowledge of legislation in order to administer it.
For example, UK police officers who detain and interrogate members of the public regarding their opinions posted online, all the while admitting that these opinions were non-crimes. Or local authority town planning officers who issue decisions contrary to the law and end up in appeal hearings and judicial review cases at vast expense for all parties. Stonewall introducing its own counter-factual equality legislation via workplace training schemes, which led to a number of high-profile employment tribunals.
Admitting the law is imperfect and subject to bias is not a reason to abandon it, making the perfect the enemy of the good. I suspect that critical theories and postmodernism in general are used as a pretentious wrapper covering the naked abuse of power, under the Crowleyite principle "do what thou wilt shall be the whole of the law". The twentieth century provided us with plenty of evidence that this principle leads to very poor outcomes, even for those who wield it.
These theories are critical of power only to the point where power is achieved. For example, queer theory has nothing to say about the state-sponsored mutilation of homosexuals in gender clinics because it didn't anticipate queer theory itself becoming hegemonic. Breaking the liberal assumption that gay people should not subject to cruel and unusual punishment, such as castration, is queering the healthcare system, while reinforcing the marginalisation of homosexuals that queer theory was supposedly critiquing.
The UK's Labour government is led by activist lawyers, including Starmer himself of course, a member of the Haldane Society and contributor to its Socialist Lawyer magazine. Tony Blair set the pattern by arguing that the second Iraq War was 'legal' even though it was clearly a regime change mission, not a war of self-defence against weapons of mass destruction.
It is a very old problem - what has been called the gap between law and justice. Or, as you put it, making the perfect the enemy of the good. Since law is not perfect, why not just ignore it and go to justice more directly? Oakeshott called this 'as the crow flies' morality.
Ah, but 'social justice' requires individual injustice. A current example from the UK could be the state attempting to break up family farms via new inheritance taxes, while funding progressive social programmes (such as Drag Queen Story Hour at the children's library).
Historical examples are far worse, of course. A neighbour of mine set up a children's orphanage in Cambodia, a country which is still suffering from the lack of a professional class. After Pol Pot's regime had killed all of its opponents, it turned to killing anyone who wore glasses, on the basis that anyone who owned glasses could read, and was therefore a potentially dangerous intellectual.
We can serve the goddess Justitia, or revolutionary Marianne, but we cannot serve both at once.
I think ultimately, although we are all victims if the neutral legal system is politicised, the biggest victims will be judges themselves.
If they are essentially making political decisions in the courts, then they must be subject to political and hence democratic oversight. They must be elected (as in the case of some judges in the United States), or at the very least, subjected to confirmation hearings in our elected parliament.
It amuses me to see the spluttering outrage from judges when our elected representatives "have the nerve" to criticise court decisions - while those same judges are insisting on their right to make political decisions.
If they persist in picking fights with the elected government, they will, eventually, lose.
Arguably judges have always been politically appointed, by conservative social networks rather by elected representatives. Now the bias is towards the socially progressive, perhaps because the pre-1968 educated generation are aging out of the system. I understand the UK Supreme Court is a political creation which limited the oversight of the peerage, further reducing conservative influence.
The sense I'm getting from learning ever more on this blog about 'do gooding' in every field of influence is that nothing really separates these fields of human endeavour from good old fashioned Christian zeal. My best friend - a scientific academic - was aghast when I expressed a view that 'improving' the world shouldn't be the defining objective of science, but rather the establishment of material knowledge. It seems to be part of the DNA of above-average intelligence people to desire to influence beyond their immediate existence. Again I cannot shake the feeling that when you kill God (cheers, Nietzsche) as the moral arbiter, everyone wants to be God. All of these ideas that you discuss - the expansion of the State, the strange application of law etc - seem to be motivated by a will to power/influence and doing 'good'.
Another thought arises - which is how damned good this type of thinker is at branding. Realist law turns out to be entirely subjective. This is how so many bad ideas fly under the radar until they've become embedded.
Great comment overall but I would quibble with one small thing - I am a Christian and I was brought up going to church each week, and the messaging was always consistent: be humble, be thankful, be a 'witness', and be kind and helpful to those in your immediate surroundings. There was nothing hubristic in it at all. The drive to 'improve' the world can't be put down to a replacement for Christian faith, I think - there's some other driver at work. I take the general point that everybody wants to be God. But the point about Christianity is that nobody can!
Indeed ! I didn't intend to impugn Christianity or Christians in general. The 'religiosity' of modern liberalism seems (to me) to reflect what happens when we become unmoored from the powerful sense of purpose and moral objectivity that faith in God provides. The academe seems to respond by producing Übermenschen whose mission is to take their values out into the world. But it's the exact opposite of the humility of practicing Christians. They're more like the missionaries who took it upon themselves to 'spread the word' to people as a kind of spiritual colonisation. They too were well-meaning, but ultimately arrogant arbiters of how others should live. And when people are like that, the consequences can be subtly grim, however 'good' their intentions were. We see this constantly in the application of 'human rights' law and the expansion of the State into every area of personal life.
I'm currently working on an article for Genspect about how a strand within Christian feminism revived Gnostic belief in the 1980's onwards, based on the heretical texts documented by Elaine Pagels and others which stated that the true super-God was female or bisexual, and therefore women could be priests. So the reason why intersectional activism doesn't resemble orthodox Christianity is because these woke missionaries are the inheritors of the radical texts cast out of the Bible by Constantine in 325 AD, with his Council of Nicea.
Purely on a personal kevel, the object of the law was made clear to me when a friend decided to study law at university in 2010.
She swapped courses (to Psychology!) after three weeks, when it was made abundantly clear to her at several lectures that the degree course was predicated on the idea that the law itself was not blind, impartial or remotely fair; it was infinitely flexible, based on verbal pyrotechnics ... and the sole object was simply 'to win'.
'Tis but a small jump from being the winner to putting oneself forward as 'the most righteous', which I would suggest is now more outwardly important even than 'socially just'.
Very interesting. Looking further back, Lord Braxfield, who sentenced many of the Scottish Political Martyrs into exile in Australia, is known for his ‘Let them bring me prisoners and I will find them law’…though he was acting for conservative rather than liberal clients.
I think it was Patrick Deneen who said that liberalism’s demise was a function of its success. That is classic, negative rights, liberalism (you cannot maim, kill, steal or trespass) has slowly morphed into positive rights hyper liberalism. As John Gray ably demonstrates, the granting of more rights results in the need for Leviathan to police (NCHI), fund (tax), opine (legal interpretation) and distribute those rights (virtue signalling political largess). The legal interpretation outlined by David is part of the left-leaning politicisation of this process.
Now, everything is about rights and entitlements for the ‘few’ where the incentive scheme is for the ‘few’ to expand via intersectional points gathering (e.g., Adam Graham becoming Isla Bryson).
What is left are the people who must pay for the entitlements or show great deference or duty towards the new system, such as, white, heterosexual males, who now can’t even get a ‘fair’ legal outcome!).
Yes - this is all actually in de Jasay's book, The State. I'm currently writing about this for a 'proper' academic piece. I'll distribute details once it's out.
I wonder if the rights and entitlement culture in the UK is in part due to the huge expansion in the university system over the past thirty years. Perhaps middle-class jobs have been created to administer or lobby for new rights, just because there were far more people with degrees who wanted to do that kind of work.
For example I met a lobbyist for 'assisted dying' who was touring political conferences, no doubt being paid to do so. After a few minutes of discussion, it became apparent that this lobbyist had not considered the matter deeply, and had been reading from a script, rather than expressing their own conscience.
It interesting to note the two US presidents who emphasised the power of sorveign were both lawyers at one point e.g Lincoln and FDR .
Something about the legal profession emphasises legal realism. I myself cannot refute schmitt maxim and have come to accept that the sorveign always does exist. I always think it's better for it to be explicit at least he can be removed if the mandate of heavan falls from him (e.g when everything goes to shit) . In England parliment was ostensibly sorveign but the destruction of the Lords and the introduction of the supreme court have ruined that idea. It was instinctual policitcal but the Lords were not essentially polictians now it's a place to throw all the people to quibble over details while various quangos act as the true sorveign . Only Blair really acted as sorveign in this century every PM since has been unable or unwilling to act with authority since
The interesting point is that, in the end, it is the people who are sovereign because ultimately they are the ones who get to decide on the exception. Just ask Mussolini, or Colonel Gadaffi, or Saddam Hussein....
Not sure I'd agree with any of those examples David , all of those were carried out by foreign powers intervening . None of those were killed in an internal revolution , all when there power as sorveign was removed by an external power not by the people most of time in the face of a full fledged invasion.
It really defeats the point your attempting to argue
Sorveign, as discussed in the stack is the schmitian term of who can decide the exception on law.
Mussolini was killed by communist partisan working with the USSR while he was fleeing to exile after his country had been invaded and occupied , it was not an intenral coup
Although once he and his unfortunate mistress were dead, they were hung by their ankles in the town square for local residents to abuse. Weren't the communist partisans Italian? I would guess that most successful resistance movements of that period had some form of outside help.
Similar developments are taking place in most, if not all, 'democracies', with even the illusion of the 'Rule of Law' no longer bothered to be observed.
Explains a lot. One question - do you think lawyers have enough self awareness to understand this about themselves? Would they recognise themselves in your description?
Tough one. Working lawyers - not really. Judges - possibly (the more self-aware and intellectual ones). Academic lawyers - certainly the theoretically/jurisprudentially oriented ones. In my experience it permeates the entire discipline mostly as an unconscious idea that law is just a tool of politics.
hmmm...so how do working lawyers explain to themselves openly political judgements?
So to take today's example, JSO protestors who damaged the Treasury just got set free because the judge recognised their actions were "born out of concern and anxiety for climate change'. Compare and contrast with Lucy Connelly...
They don't think of it as openly political. They honestly think it is just the application of justice. This may sound odd, but I'm very familiar with the mindset.
In my experience at local government level, the law is bent out of shape on a daily basis to serve political and financial interests.
My own local authority misinterpreted in its favour an appeal court ruling on 'affordable housing' levies for small developments of less than ten properties, a case which two other local authorities had lost against the Secretary of State on this precise point.
My local Council relied not on the judgment itself, but on an opinion piece on a barrister's blog which has since been deleted. In the meantime it was collecting around £4m in housing levies per year. It has now stopped publishing annual reports on how much levy is being collected. It hasn't reported this revenue since 2021.
Was there not a concept in British law (implicit rather than explicit) of "the reasonable man"? Thus, when judging someone's action in a situation, the court would consider whether the conduct was that of a "reasonable man", or alternatively, whether it was disproportionate.
Where does the "reasonable man" fit in with critical legal theory? Is he extinct?
The 'reasonable man' is either: a) a stand-in for the opinion of the judge, or b) biased by unconscious prejudice. Either way, he's a problematic figure, to use the language of the day...
Although there may be no Clapham Omnibus today, and bias is expected, I believe there is still value in the 'reasonable man' test, which I understand as a normative test relying on logic. In the example of queer theory, which is of course deliberately anti-normative and makes no claim to reason, the reasonable man test can be applied usefully.
For example, a man with several convictions for sexually assaulting women takes legal action against the state's refusal to place him in a women's prison. He argues that solitary confinement is cruel and unusual punishment, and so he demands a shared cell with women.
Normatively and logically, we would not accept this demand as legitimate, as the 'reasonable man' could foresee that this would represent a cruel and unusual punishment for the women locked up with him. In using a queer theory argument about gender identity, the litigant could not claim that they were either normative or reasoned.
I would suppose that without being normative and reasoned, there is no law at all. Which is perhaps why queer theorists want to destroy both normativity and reason.
‘Sovereign is he who decides on the exception’ - the sovereign being the authority who determines when the law has effect and when it doesn’t, and, by implication, how it applies and to what ends.
Isn’t this why Magna Carta has Trial by Jury set within it? - it is we the people who make this decision about the law and how it is applied; it is this feature that means people are sovereign and are governed by rules they consent to. This is democracy in action. Voting these days, especially with the Party System, is about choosing the least worst dictator, hopefully.
‘Judges’ should be convenors of proceedings - it is the Jury that should judge.
In a sense, yes, but trial by jury disappeared for non-criminal trials long ago. It would be great if juries decided constitutional matters, employment tribunals, etc. - I would love that!
Do we need to reassert the constitutional rights enshrined in our constitutional document?
Is the justice system acting unconstitutionally, even though it has been doing so for a very long time?
To me, Trial by Jury and its proper re-establishment is a cornerstone to living in a democracy as the people have the power to agree to laws they live under and how those laws are applied - the people remain sovereign.
This is fascinating. You could argue (in fact I do in my last essay) that the rule of law has been from the start a disguise for the powerful to claim neutrality whilst tilting the system in their favour. All legal realists are doing is removing that fig leaf. But there are other systems like the Water Tribunal in Valencia which give a different view of what justice could look like. Perhaps that's what we need instead.....
Fascinating essay, thanks for posting it. I believe that one of the side effects of general disdain for the law as written is that it is no longer necessary to apply a working knowledge of legislation in order to administer it.
For example, UK police officers who detain and interrogate members of the public regarding their opinions posted online, all the while admitting that these opinions were non-crimes. Or local authority town planning officers who issue decisions contrary to the law and end up in appeal hearings and judicial review cases at vast expense for all parties. Stonewall introducing its own counter-factual equality legislation via workplace training schemes, which led to a number of high-profile employment tribunals.
Admitting the law is imperfect and subject to bias is not a reason to abandon it, making the perfect the enemy of the good. I suspect that critical theories and postmodernism in general are used as a pretentious wrapper covering the naked abuse of power, under the Crowleyite principle "do what thou wilt shall be the whole of the law". The twentieth century provided us with plenty of evidence that this principle leads to very poor outcomes, even for those who wield it.
These theories are critical of power only to the point where power is achieved. For example, queer theory has nothing to say about the state-sponsored mutilation of homosexuals in gender clinics because it didn't anticipate queer theory itself becoming hegemonic. Breaking the liberal assumption that gay people should not subject to cruel and unusual punishment, such as castration, is queering the healthcare system, while reinforcing the marginalisation of homosexuals that queer theory was supposedly critiquing.
The UK's Labour government is led by activist lawyers, including Starmer himself of course, a member of the Haldane Society and contributor to its Socialist Lawyer magazine. Tony Blair set the pattern by arguing that the second Iraq War was 'legal' even though it was clearly a regime change mission, not a war of self-defence against weapons of mass destruction.
It is a very old problem - what has been called the gap between law and justice. Or, as you put it, making the perfect the enemy of the good. Since law is not perfect, why not just ignore it and go to justice more directly? Oakeshott called this 'as the crow flies' morality.
Ah, but 'social justice' requires individual injustice. A current example from the UK could be the state attempting to break up family farms via new inheritance taxes, while funding progressive social programmes (such as Drag Queen Story Hour at the children's library).
Historical examples are far worse, of course. A neighbour of mine set up a children's orphanage in Cambodia, a country which is still suffering from the lack of a professional class. After Pol Pot's regime had killed all of its opponents, it turned to killing anyone who wore glasses, on the basis that anyone who owned glasses could read, and was therefore a potentially dangerous intellectual.
We can serve the goddess Justitia, or revolutionary Marianne, but we cannot serve both at once.
Yes, it's Hayek's old point - there is no social justice. There is only individual justice in the end.
Scary. Might you do a contrasting positive piece on what a good understanding of law looks like in practice?
Now there's a thought....
I think ultimately, although we are all victims if the neutral legal system is politicised, the biggest victims will be judges themselves.
If they are essentially making political decisions in the courts, then they must be subject to political and hence democratic oversight. They must be elected (as in the case of some judges in the United States), or at the very least, subjected to confirmation hearings in our elected parliament.
It amuses me to see the spluttering outrage from judges when our elected representatives "have the nerve" to criticise court decisions - while those same judges are insisting on their right to make political decisions.
If they persist in picking fights with the elected government, they will, eventually, lose.
Yes, exactly right - political appointments of judges are coming sooner or later.
Arguably judges have always been politically appointed, by conservative social networks rather by elected representatives. Now the bias is towards the socially progressive, perhaps because the pre-1968 educated generation are aging out of the system. I understand the UK Supreme Court is a political creation which limited the oversight of the peerage, further reducing conservative influence.
The sense I'm getting from learning ever more on this blog about 'do gooding' in every field of influence is that nothing really separates these fields of human endeavour from good old fashioned Christian zeal. My best friend - a scientific academic - was aghast when I expressed a view that 'improving' the world shouldn't be the defining objective of science, but rather the establishment of material knowledge. It seems to be part of the DNA of above-average intelligence people to desire to influence beyond their immediate existence. Again I cannot shake the feeling that when you kill God (cheers, Nietzsche) as the moral arbiter, everyone wants to be God. All of these ideas that you discuss - the expansion of the State, the strange application of law etc - seem to be motivated by a will to power/influence and doing 'good'.
Another thought arises - which is how damned good this type of thinker is at branding. Realist law turns out to be entirely subjective. This is how so many bad ideas fly under the radar until they've become embedded.
Great comment overall but I would quibble with one small thing - I am a Christian and I was brought up going to church each week, and the messaging was always consistent: be humble, be thankful, be a 'witness', and be kind and helpful to those in your immediate surroundings. There was nothing hubristic in it at all. The drive to 'improve' the world can't be put down to a replacement for Christian faith, I think - there's some other driver at work. I take the general point that everybody wants to be God. But the point about Christianity is that nobody can!
Indeed ! I didn't intend to impugn Christianity or Christians in general. The 'religiosity' of modern liberalism seems (to me) to reflect what happens when we become unmoored from the powerful sense of purpose and moral objectivity that faith in God provides. The academe seems to respond by producing Übermenschen whose mission is to take their values out into the world. But it's the exact opposite of the humility of practicing Christians. They're more like the missionaries who took it upon themselves to 'spread the word' to people as a kind of spiritual colonisation. They too were well-meaning, but ultimately arrogant arbiters of how others should live. And when people are like that, the consequences can be subtly grim, however 'good' their intentions were. We see this constantly in the application of 'human rights' law and the expansion of the State into every area of personal life.
No doubt!
I'm currently working on an article for Genspect about how a strand within Christian feminism revived Gnostic belief in the 1980's onwards, based on the heretical texts documented by Elaine Pagels and others which stated that the true super-God was female or bisexual, and therefore women could be priests. So the reason why intersectional activism doesn't resemble orthodox Christianity is because these woke missionaries are the inheritors of the radical texts cast out of the Bible by Constantine in 325 AD, with his Council of Nicea.
Purely on a personal kevel, the object of the law was made clear to me when a friend decided to study law at university in 2010.
She swapped courses (to Psychology!) after three weeks, when it was made abundantly clear to her at several lectures that the degree course was predicated on the idea that the law itself was not blind, impartial or remotely fair; it was infinitely flexible, based on verbal pyrotechnics ... and the sole object was simply 'to win'.
Now the sole object is not to win, but to be socially just.
'Tis but a small jump from being the winner to putting oneself forward as 'the most righteous', which I would suggest is now more outwardly important even than 'socially just'.
Very interesting. Looking further back, Lord Braxfield, who sentenced many of the Scottish Political Martyrs into exile in Australia, is known for his ‘Let them bring me prisoners and I will find them law’…though he was acting for conservative rather than liberal clients.
Sounds like an Employment Tribunal judge in 2025...
Or Lavrentiy Beria: "Show me the man and I'll find you the crime"
I think it was Patrick Deneen who said that liberalism’s demise was a function of its success. That is classic, negative rights, liberalism (you cannot maim, kill, steal or trespass) has slowly morphed into positive rights hyper liberalism. As John Gray ably demonstrates, the granting of more rights results in the need for Leviathan to police (NCHI), fund (tax), opine (legal interpretation) and distribute those rights (virtue signalling political largess). The legal interpretation outlined by David is part of the left-leaning politicisation of this process.
Now, everything is about rights and entitlements for the ‘few’ where the incentive scheme is for the ‘few’ to expand via intersectional points gathering (e.g., Adam Graham becoming Isla Bryson).
What is left are the people who must pay for the entitlements or show great deference or duty towards the new system, such as, white, heterosexual males, who now can’t even get a ‘fair’ legal outcome!).
Yes - this is all actually in de Jasay's book, The State. I'm currently writing about this for a 'proper' academic piece. I'll distribute details once it's out.
I wonder if the rights and entitlement culture in the UK is in part due to the huge expansion in the university system over the past thirty years. Perhaps middle-class jobs have been created to administer or lobby for new rights, just because there were far more people with degrees who wanted to do that kind of work.
For example I met a lobbyist for 'assisted dying' who was touring political conferences, no doubt being paid to do so. After a few minutes of discussion, it became apparent that this lobbyist had not considered the matter deeply, and had been reading from a script, rather than expressing their own conscience.
It interesting to note the two US presidents who emphasised the power of sorveign were both lawyers at one point e.g Lincoln and FDR .
Something about the legal profession emphasises legal realism. I myself cannot refute schmitt maxim and have come to accept that the sorveign always does exist. I always think it's better for it to be explicit at least he can be removed if the mandate of heavan falls from him (e.g when everything goes to shit) . In England parliment was ostensibly sorveign but the destruction of the Lords and the introduction of the supreme court have ruined that idea. It was instinctual policitcal but the Lords were not essentially polictians now it's a place to throw all the people to quibble over details while various quangos act as the true sorveign . Only Blair really acted as sorveign in this century every PM since has been unable or unwilling to act with authority since
The interesting point is that, in the end, it is the people who are sovereign because ultimately they are the ones who get to decide on the exception. Just ask Mussolini, or Colonel Gadaffi, or Saddam Hussein....
Not sure I'd agree with any of those examples David , all of those were carried out by foreign powers intervening . None of those were killed in an internal revolution , all when there power as sorveign was removed by an external power not by the people most of time in the face of a full fledged invasion.
It really defeats the point your attempting to argue
Fair point. Replace with Ceausescu, Ferdinand Marcos and Jean-Claude Duvalier!
Sovereign?
And Mussolini was killed by his own people.
Sorveign, as discussed in the stack is the schmitian term of who can decide the exception on law.
Mussolini was killed by communist partisan working with the USSR while he was fleeing to exile after his country had been invaded and occupied , it was not an intenral coup
Although once he and his unfortunate mistress were dead, they were hung by their ankles in the town square for local residents to abuse. Weren't the communist partisans Italian? I would guess that most successful resistance movements of that period had some form of outside help.
Similar developments are taking place in most, if not all, 'democracies', with even the illusion of the 'Rule of Law' no longer bothered to be observed.
Explains a lot. One question - do you think lawyers have enough self awareness to understand this about themselves? Would they recognise themselves in your description?
Tough one. Working lawyers - not really. Judges - possibly (the more self-aware and intellectual ones). Academic lawyers - certainly the theoretically/jurisprudentially oriented ones. In my experience it permeates the entire discipline mostly as an unconscious idea that law is just a tool of politics.
hmmm...so how do working lawyers explain to themselves openly political judgements?
So to take today's example, JSO protestors who damaged the Treasury just got set free because the judge recognised their actions were "born out of concern and anxiety for climate change'. Compare and contrast with Lucy Connelly...
They don't think of it as openly political. They honestly think it is just the application of justice. This may sound odd, but I'm very familiar with the mindset.
In my experience at local government level, the law is bent out of shape on a daily basis to serve political and financial interests.
My own local authority misinterpreted in its favour an appeal court ruling on 'affordable housing' levies for small developments of less than ten properties, a case which two other local authorities had lost against the Secretary of State on this precise point.
My local Council relied not on the judgment itself, but on an opinion piece on a barrister's blog which has since been deleted. In the meantime it was collecting around £4m in housing levies per year. It has now stopped publishing annual reports on how much levy is being collected. It hasn't reported this revenue since 2021.
It is impossible to be optimistic about this on top of open balkanisation and sectarianism.
Quite.
Was there not a concept in British law (implicit rather than explicit) of "the reasonable man"? Thus, when judging someone's action in a situation, the court would consider whether the conduct was that of a "reasonable man", or alternatively, whether it was disproportionate.
Where does the "reasonable man" fit in with critical legal theory? Is he extinct?
The 'reasonable man' is either: a) a stand-in for the opinion of the judge, or b) biased by unconscious prejudice. Either way, he's a problematic figure, to use the language of the day...
Although there may be no Clapham Omnibus today, and bias is expected, I believe there is still value in the 'reasonable man' test, which I understand as a normative test relying on logic. In the example of queer theory, which is of course deliberately anti-normative and makes no claim to reason, the reasonable man test can be applied usefully.
For example, a man with several convictions for sexually assaulting women takes legal action against the state's refusal to place him in a women's prison. He argues that solitary confinement is cruel and unusual punishment, and so he demands a shared cell with women.
Normatively and logically, we would not accept this demand as legitimate, as the 'reasonable man' could foresee that this would represent a cruel and unusual punishment for the women locked up with him. In using a queer theory argument about gender identity, the litigant could not claim that they were either normative or reasoned.
I would suppose that without being normative and reasoned, there is no law at all. Which is perhaps why queer theorists want to destroy both normativity and reason.
Yes - to be clear, I meant that the 'reasonable man' has been problematised by a generation or more of legal scholarship refuting his existence.
And yet we all know an unreasonable man when we meet one!
So Schmitt said:
‘Sovereign is he who decides on the exception’ - the sovereign being the authority who determines when the law has effect and when it doesn’t, and, by implication, how it applies and to what ends.
Isn’t this why Magna Carta has Trial by Jury set within it? - it is we the people who make this decision about the law and how it is applied; it is this feature that means people are sovereign and are governed by rules they consent to. This is democracy in action. Voting these days, especially with the Party System, is about choosing the least worst dictator, hopefully.
‘Judges’ should be convenors of proceedings - it is the Jury that should judge.
In a sense, yes, but trial by jury disappeared for non-criminal trials long ago. It would be great if juries decided constitutional matters, employment tribunals, etc. - I would love that!
Do we need to reassert the constitutional rights enshrined in our constitutional document?
Is the justice system acting unconstitutionally, even though it has been doing so for a very long time?
To me, Trial by Jury and its proper re-establishment is a cornerstone to living in a democracy as the people have the power to agree to laws they live under and how those laws are applied - the people remain sovereign.
The Inquisition (see 'legal realism')
Most insightful & informative.
This is fascinating. You could argue (in fact I do in my last essay) that the rule of law has been from the start a disguise for the powerful to claim neutrality whilst tilting the system in their favour. All legal realists are doing is removing that fig leaf. But there are other systems like the Water Tribunal in Valencia which give a different view of what justice could look like. Perhaps that's what we need instead.....