I never knew that jurisprudence was so damned interesting and relevant! To be honest, it never occurred to me that I could even understand much of it. But I do! and that's a testament to McGrogan's writing skills more than my abilities of comprehension :-)
As you say, the lawyering class has enjoyed a massive and longstanding free pass in our supposedly parliamentary pluralist liberal democracies. If voters were asked to identify who they thought was messing with their 'democracy', most, I suspect, would pick either 'the politicians' or 'the rich' or maybe 'Lefty do-gooders'. Hardly any would zero in on lawyers. So perhaps the best thing that a future UK conservative opposition could do (and by 'conservative' I do not mean Tory by the way) would be to try to make the public understand just how much their country is run by lawyers.
The straightforward explanation for this is that (indefensibly) absolutely no effort is made in formal education to teach anybody about the way the legal system works.
The Post Office scandal is another (if tangential) instance. Knowledge of this legal travesty long predates the recent tv drama. Now that the story has gone viral, the Post Office bureaucrats are (rightly) in the frame. Fujitsu are rightly in the frame. Ministers are rightly in the frame.....but possibly thousands of people will have long known - on the legal profession grapevine - that something was seriously amiss and a significant number of those will have continued to be party to it nevertheless. It does not take a genius or a legal training to figure out that 700+ sub-postmaster fraud cases suddenly running concurrently and/or consecutively was clearly a legal travesty. And yet those -possibly thousands - 'in the know' are getting that same old free pass from the mainstream media.
I know next to nothing about the law, apart from what I'm reading from you, David :). Quite a few of my uni friends read law, which was a mysterious subject to me, and I didn't even think to ask them why they'd chosen it. Two are judges now. As we learn nothing about it at school, what is it that leads people onto this path? Is it as much a high salary and status as actual interest? I guess I'd better ask them now!
As I keep repeating to non-lawyers who naively believe 'the law' to be a guarantee of rights: the law is a bent referee in the game of life; the less of it the better.
In support of your argument I offer you a quotation from the great judge Billings Learned Hand: “This much I think I do know — that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish. What is the spirit of moderation? It is the temper which does not press a partisan advantage to its bitter end, which can understand and will respect the other side, which feels a unity between all citizens—real and not the factitious product of propaganda—which recognizes their common fate and their common aspirations—in a word, which has faith in the sacredness of the individual.”
The Contribution of an Independent Judiciary to Civilization (1942).
All your essays are good; but some are gooder than others. Yesterday I interrupted the loveliest law student in the galaxy as she was writing an essay on jurisprudence. It's a sign! I thought, so I sent her the piece and recommended that she subscribe.
I should make clear that this issue wasn’t ultimately the only point the entire judgment rested on - although I think the government has already said it’s likely to appeal.
I worked in the lower rungs of the legal profession for the entirety of my working life, firstly in the trust department of a high street bank and then for two firms of solicitors, one in Westminster and the other in the Cambridge/Newmarket area. My own area of the law was, thankfully, not unduly concerned with judicial interpretations of politically inspired legislation. However, the clear and obvious problem - as splendidly explained by David- is that any legislation can and is subject to being understood to mean what the interpreter thinks is likely to provide the most optimal outcome. Tax law is particularly susceptible to being understood to produce the most beneficial result for HMRC. Every year the library shelves reserved for tax legislation expanded as tax laws grew like Topsy. Rarely, if ever, were laws removed from the statute book.
Every now and again, some naturally conservative (small c) politician, never one devoted to the cause of socialism, comes along and suggests a wholesale ‘pruning’ of the ever growing mound of legislation, such as a proposal that no new law can be placed on the statute book without removing an existing one. It never happens, of course. Parliamentarians have come to a belief that they are legislators whose role it is to fashion laws in order to keep the electorate safe from itself and thus imbuing themselves with ever greater powers of control.
Was there ever a time when legislation was fashioned by those whose only intent was to create legislation to protect only those who actually need to be protected? All civilisations function best when every member is able to see that they can make the best possible use of their individual talent/skill.
Legislation should do no more than facilitate the most optimal functioning of whatever civilisation has been created. That is clearly no longer the intention. Legislation is created in order to enable the most optimal functioning of global governance which now facilitates the ever expanding level of international/state/corporatism = transnational fascism!!
I’m not convinced that lawyers are the problem. The more laws there are, the more scope there is for interpretation. I’ll not deny that judicial interpretation is the ultimate in totalitarian governance. Nevertheless I personally continue to hold politicians solely responsible for the failure to understand that legislation is THE problem. We need far less of it and, with less of it, we need far less of those who create it.
I never knew that jurisprudence was so damned interesting and relevant! To be honest, it never occurred to me that I could even understand much of it. But I do! and that's a testament to McGrogan's writing skills more than my abilities of comprehension :-)
Thanks, Walter!
As you say, the lawyering class has enjoyed a massive and longstanding free pass in our supposedly parliamentary pluralist liberal democracies. If voters were asked to identify who they thought was messing with their 'democracy', most, I suspect, would pick either 'the politicians' or 'the rich' or maybe 'Lefty do-gooders'. Hardly any would zero in on lawyers. So perhaps the best thing that a future UK conservative opposition could do (and by 'conservative' I do not mean Tory by the way) would be to try to make the public understand just how much their country is run by lawyers.
Loved your graphic bluebottle mini-horror!
The straightforward explanation for this is that (indefensibly) absolutely no effort is made in formal education to teach anybody about the way the legal system works.
The Post Office scandal is another (if tangential) instance. Knowledge of this legal travesty long predates the recent tv drama. Now that the story has gone viral, the Post Office bureaucrats are (rightly) in the frame. Fujitsu are rightly in the frame. Ministers are rightly in the frame.....but possibly thousands of people will have long known - on the legal profession grapevine - that something was seriously amiss and a significant number of those will have continued to be party to it nevertheless. It does not take a genius or a legal training to figure out that 700+ sub-postmaster fraud cases suddenly running concurrently and/or consecutively was clearly a legal travesty. And yet those -possibly thousands - 'in the know' are getting that same old free pass from the mainstream media.
I know next to nothing about the law, apart from what I'm reading from you, David :). Quite a few of my uni friends read law, which was a mysterious subject to me, and I didn't even think to ask them why they'd chosen it. Two are judges now. As we learn nothing about it at school, what is it that leads people onto this path? Is it as much a high salary and status as actual interest? I guess I'd better ask them now!
It is both of those things!
As I keep repeating to non-lawyers who naively believe 'the law' to be a guarantee of rights: the law is a bent referee in the game of life; the less of it the better.
In support of your argument I offer you a quotation from the great judge Billings Learned Hand: “This much I think I do know — that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish. What is the spirit of moderation? It is the temper which does not press a partisan advantage to its bitter end, which can understand and will respect the other side, which feels a unity between all citizens—real and not the factitious product of propaganda—which recognizes their common fate and their common aspirations—in a word, which has faith in the sacredness of the individual.”
The Contribution of an Independent Judiciary to Civilization (1942).
And isn’t there a certain sort of illteracy involved: giving the word 'community' a sense that doesn just ignore but defies its context?
Law is politics by other means! How beautifully and compellingly explained
All your essays are good; but some are gooder than others. Yesterday I interrupted the loveliest law student in the galaxy as she was writing an essay on jurisprudence. It's a sign! I thought, so I sent her the piece and recommended that she subscribe.
It's so perverse a judgement, surely it can be struck down upon appeal?
I should make clear that this issue wasn’t ultimately the only point the entire judgment rested on - although I think the government has already said it’s likely to appeal.
Very, very good.
I worked in the lower rungs of the legal profession for the entirety of my working life, firstly in the trust department of a high street bank and then for two firms of solicitors, one in Westminster and the other in the Cambridge/Newmarket area. My own area of the law was, thankfully, not unduly concerned with judicial interpretations of politically inspired legislation. However, the clear and obvious problem - as splendidly explained by David- is that any legislation can and is subject to being understood to mean what the interpreter thinks is likely to provide the most optimal outcome. Tax law is particularly susceptible to being understood to produce the most beneficial result for HMRC. Every year the library shelves reserved for tax legislation expanded as tax laws grew like Topsy. Rarely, if ever, were laws removed from the statute book.
Every now and again, some naturally conservative (small c) politician, never one devoted to the cause of socialism, comes along and suggests a wholesale ‘pruning’ of the ever growing mound of legislation, such as a proposal that no new law can be placed on the statute book without removing an existing one. It never happens, of course. Parliamentarians have come to a belief that they are legislators whose role it is to fashion laws in order to keep the electorate safe from itself and thus imbuing themselves with ever greater powers of control.
Was there ever a time when legislation was fashioned by those whose only intent was to create legislation to protect only those who actually need to be protected? All civilisations function best when every member is able to see that they can make the best possible use of their individual talent/skill.
Legislation should do no more than facilitate the most optimal functioning of whatever civilisation has been created. That is clearly no longer the intention. Legislation is created in order to enable the most optimal functioning of global governance which now facilitates the ever expanding level of international/state/corporatism = transnational fascism!!
I’m not convinced that lawyers are the problem. The more laws there are, the more scope there is for interpretation. I’ll not deny that judicial interpretation is the ultimate in totalitarian governance. Nevertheless I personally continue to hold politicians solely responsible for the failure to understand that legislation is THE problem. We need far less of it and, with less of it, we need far less of those who create it.
But parliament can just ignore judicial reviews can't it? Doesn't the legislature stand above the judiciary?