Law’s expanding empire

Law’s expanding empire

By Lord Jonathan Sumption
Transcribed by Kevin Motaroki

In the beginning, there was chaos, and brute force – a world without law. In the mythology of ancient Athens, Agamemnon sacrificed his daughter so that the gods would allow his fleet to sail to Troy. His wife murdered him to avenge the deed and she, in turn, was murdered by her son. Athena, the goddess of wisdom, put an end to the cycle of violence by creating a court to impose a solution in what today we would call ‘the public interest’ – a solution based on reason, on the experience of human frailty and on the fear of the alternative.

In the final part of Auschylus’ great trilogy, ‘The Oresteian’, the goddess justifies her intervention in the world of mortals with these words: “Let no man live by uncurbed by law or curbed by tyranny.” This was written the 5th Century BC, but the message is timeless and it is universal. Law is not just an instrument of corrective distributive justice; it is an expression of collective values and alternative to violence and capricious despotism.

It is a vice of some lawyers that they talk about law as it if it were a self-contained subject, something to be examined like a laboratory specimen in a test-tube. But law does not occupy a world of its own; it is part of a larger system of public decision-making. The rest is politics – of ministers and legislators and political parties, of media and pressure groups and of the wider electorate. 

My subject in this lecture is the place of law in public life. The twin themes I want to explore – of the decline of politics and the rise of law to fill the void – what ought to be the role of law in a representative democracy? Is there too much law? Is there perhaps too little? Do judges have too much power? What do we mean by ‘the rule of law’?

The expanding empire of law is one of the most significant phenomena of our time. This splendid hall has been used by lawyers since it was built four-and-a-half centuries ago. But for moist of that time, these lawyers had very little to do. Until the 19th Century, most lawyers were governed by custom and convention. The law dealt with a narrow range of human problems. It regulated titled property, it enforced contracts, it protected people’s lives – their persons, liberty and property against arbitrary injury – but that was about all. Today, law penetrates every corner of human life.

The standard modern edition of the English statutes fills about  50 stout volumes, with more than 30 volumes of supplements. In addition, there are currently about 21,000 regulations made by ministers, and nearly 12,000 regulations made by the European Union, which will continue to apply unless and until they are repealed or replaced by domestic regulation. 

In a single year, ending in May 2010, more than 700 new criminal offences were created, three quarters of them by government regulation. Now, that was, admittedly, a bumper year, but the rate of increase continues to be high. On top of that, there is the relentless output of the judgment of the courts, many of them among subjects that were hardly touched by law a century ago.

The powers of the Family Court now extend to every aspect of the wellbeing of children, which once belonged to the enclosed domain of the home; complex codes of law enforced by specialised tribunals regulate the world of employment; an elaborate system of administrative law, largely created by judges since the 1960s, governs most aspects of the relations between government and the citizen. The special areas that were once thought to be outside the purview of the courts, such as the foreign policy, the conduct of overseas military operations and the other prerogative powers of the state have all, one by one, yielded to the power of judges. Above all, since 2000, a code of legally enforceable human rights has opened up vast new areas to judicial regulation. 

The impact of these changes can be gauged by the growth of the legal profession. In 1911, there was one solicitor in England for every 3000 inhabitants. Just over a century later, there is about one in 400, a sevenfold increase. The rule of law is one of the clichés of modern life, which tends to be invoked even by lawyers without much reflection on what it actually means. The essence of it can be summed up in three points.

First, public authorities have no power to coerce us, except what the law gives them. Secondly, people must have a minimum of basic legal rights. One can argue about what those rights should be, but they must at least include the protection from physical violence and arbitrary interreference  with life, liberty and property. Without these, social existence is more than accrued contest in the deployment of force. Thirdly, there must  be access to independent judges to vindicate these rights, to administer the criminal law, and to enforce the limits of state power. At least as important as these, however, is a clear understanding of what the rule of law  does not mean. It does not mean that every human problem and every moral dilemma calls for a legal solution. 

So, why  has this vast expansion in the domain of law happened?

The fundamental reason is the arrival of a broadly based democracy between the 1860s and the 1920s. Mass involvement in public affairs has inevitably led to rising demands of the state as a provider of amenities, as a guarantor of minimum standards of security and a regulator of economic activity. Optimism, about what collective action can achieve, is natural to social animals; law is the prime instrument of collective action, and the rising expectations of the state naturally leads to calls for legal solutions.

In some areas, a legal solution is dictated by the nature of the problem. Take, for example, the unwelcome side effects of technological and economic change – what economists call externalities. They include industrial sickness and injury, pollution, monopoly and climate change, to name only some of the more obvious ones.

Economic growth is the spontaneous creation of numberless individuals. But spontaneous action cannot address the unwanted collective costs that go with it; only the state can do that. So, we have laws against cartels, against pollution, and so on. But there are other areas where the intervention of law is not forced on us. It is a collective choice. It reflects pervasive changes in our outlook. I want to draw attention to two of these changes which have, I think, contributed a great deal to the expansion of law’s empire. One of them is growing moral and social absolutism, which looks to law to produce conformity. The other, is the constant quest for greater security and reduced risk in our daily lives.

Let’s look first at law as a means if imposing conformity. This was once regarded as one of its prime functions. The law regulated religious worship until the 18th Century. It discriminated between different religious denominations until the 19th Century. It regulated private and consensual sexual relations until quite recently. Homosexual acts were criminal until 1967. Today, the law has almost entirely withdrawn from all of these areas. Indeed, it has moved to the opposite extreme and banned the discrimination that  was once compulsory.

Yet, in other respects, we have moved back to the much-older idea that law exists to impose conformity. We live in a censorious age, more perhaps than at any time since the evangelical movement transformed the moral sensibilities of the Victorians. Liberal  voices in England in Victorian Britain, like John- Stuart Mill, were already protesting against the implications for personal liberty. Law, Mill argued, exists to protect us from harm, and not to recruit us to moral conformity. Yet, today, a hectoring press can discharge an avalanche of public scorn and abuse on anybody who steps out of line. 

Social media encourage a resort to easier answers and generate a powerful herd instinct which suppresses not just dissent but even doubt and nuance. Public and even private solecisms can destroy  a person’s career, advertisers pressurise editors not to publish controversial pieces and editors can be sacked for persisting. Student organisations can prevent unorthodox speakers from being heard. 

These things have made the pressure to conform far more intense than it ever was in Mill’s day. It is the same mentality which looks to law to regulate areas of life that once belonged exclusively to the domain of personal judgement. We are a lot less ready than we were to respect the autonomy of individual choices. We tend to regard social and moral values as belonging to the community as a whole as matters for collective and not personal decision. 

Two year ago, the courts and the press were much exercised with the case of Charlie Gard, a baby who had been born with a rare and fatal genetic disease. The medical advice was that there was no appreciable chance of improvement. The hospital where he was being treated applied to the High Court for  permission to withdraw treatment and allow him to die. The parents rejected the medical advice; they  wanted to take him out of the hands of the NHS and move him to the United States so that he could receive an untested experimental treatment there.

The American specialist thought that the chances of improvement were small but better than zero. The parents  wanted to take the chance. Unusually, they had raised the money by crowdfunding and they were able to pay for the cost without resorting to public funds. This was a case that raised a difficult combination of  moral judgment and pragmatic welfare for the federations. The court authorised the hospital to withdraw therapeutic treatment and the child died. Now, there are two striking features of this story. 

The first is that although the decision whether to continue treatment was a matter  of clinical judgment, the clinicians  involved were unwilling to make that judgment on their own as I suspect they would have done a generation before. They wanted the endorsement of a judge. This was not because judges were thought  to have any special clinical or moral qualifications that the doctors lacked; it was because judges have a power of absolution. By passing  the matter to the courts, the doctors sheltered themselves from legal liability. Now, that is an entirely understandable instinct; doctors do not want to run the risk of being sued or prosecuted, however confident they may be of their judgement. But the risk of being sued or prosecuted only existed because we have come to regard these terrible human dilemmas as the proper domain of law. 

The second feature of the case is perhaps even more striking. The courts ruled that not only should the  hospital be entitled to withdraw therapeutic treatment, but also that the parents should not be permitted to take the chance of a cure elsewhere. It wasn’t suggested that moving him to the United States and treating him there would actually worsen his condition, although it obviously would have prolonged it.  The parents’ judgment seems to have been within the broad range of judgments which  responsible and caring parents could make yet, in law, it was ultimately a matter for an organ of the state, namely the Family Division of the High Court. The parents’ decision was, so to speak, nationalised. 

Now, I should make it clear that I am not criticising this decision for a moment. I merely  point out that it probably would have been a different decision a generation before, even if the question had reached the courts, which it probably would not have done. Now I cite this agonising case because although its facts are unusual, it is illustrative of a more general tendency of law. Rules of law and the discretionary power which the law confers on judges limits the scope for autonomous decision-making by individuals. They cut down the area within which citizens take personal responsibility for their own destinations and those of their families.

Of course, the law has always done this in some areas, but classic liberal position – again, it was John Stuart Mill who expressed it best – is that we have to distinguish between those facts which affect other people, and are therefore proper matters for legal  regulation,  and those which affect only the actor, in which case they belong to his personal space. So, we criminalise murder, rape, theft and fraud, we say that the morality of these acts is not something that should be left to the conscience of every individual. Not only are they harmful to others, but there is an almost complete consensus that they are morally wrong. 

What is new is the growing tendency for law to regulate human choices even in cases where they do no harm to others, and there is no consensus about their morality. A good example is provided by some recent animal welfare legislation. Take fur farming: England and Scotland, in common with some other European countries, have, over the last few years, banned fur farming. The reason is not that fur farming and humane slaughter of furry animals for human use is itself objectionable. Most people accept that rearing and killing animals for food, for example, is morally acceptable. But we don’t eat beavers or minx; the sole reason for farming them is their fur.

The idea behind the statutory ban is that the desire to wear a beaver hat or a mink coat is not a morally sufficient reason for killing animals, whereas a desire to eat them would be.

Yet, many people would disagree with that judgement. Some of them are happy to wear fur, even if others disagree. But parliament has decreed that fur farming is not a matter on which they should be allowed to make their own moral judgements. Similar points could be made about the extremely elaborate legislation which now regulates the docking of dogs’ tails. It allows the practice where it has a utilitarian value, for working dogs, for example,  but not where its only value is aesthetic. 

I don’t want to get into an argument  about the rights or wrongs of laws like this; I am genuinely neutral about that. The point that I am making is a different one: these laws are addressed to moral issues on which people hold a variety of different views. But the law regulates their choices on the principle that their ought to be only one collective moral judgement and not a multiplicity of individual ones. Now, that tells us something about the changing attitude of our society to law. It marks the expansion  of the public space at the expense of the private space that was once thought sacrosanct.

Even where there are no compelling welfare considerations involved, we resort to law to impose uniform solutions in areas where we once contemplated a diversity of judgments and behaviour. We are afraid to let people be guided by their own moral judgments, in case they arrive at judgments with which we do not agree. 

Let us now turn to the other major factor behind the growing public appetite for legal rules, namely the quest for greater security and reduced risk. This is particularly important in the areas of public order, health and safety, employment and consumer protection, which are the areas that present the main risks to our wellbeing, and account for a high proportion of moral law making.

People sometimes speak as if the elimination of risk to life, health and well-being was an absolute value. But we don’t really act on that principle, either in our own lives or in collective arrangements. Think about road accidents: they are, by far, the largest source of accidental physical injury. We could almost completely eliminate by reviving the locomotive act of 1865, which limited the speed of motorised vehicles to 4mph in England, and 2mph in turns. Today, we allow faster speeds although we know for certain that it will mean many more people being killed or injured. And we do this because total safety would be too  inconvenient. Difficult as it is to say so, hundreds of deaths on roads and thousands of crippling injuries are thought to be a price worth paying for the ability to get around quicker and more comfortably.

So, eliminating risk is not an absolute value; it is a question of degree. Some year ago, the courts had to deal with the case of a young man who had broken his neck by driving into a shallow lake at a well-known beauty spot. He was paralysed for life. The local authority was sued for negligence. They had put up warning notices but his case was that since they knew that people were wont to ignore these warning, they should have taken steps to close the lake altogether. 

The court of appeal agreed with that. But when the case reached the House of Lords, the judges pointed out that there was a price to be paid for protecting this young man from his own folly. The price was the loss of liberty, which would be suffered by the great majority of people who enjoyed visiting the lake and were sensible enough do it safely. The law lords had put their finger on a wider dilemma. Every time that a public authority is blamed for failing to prevent some tragedy like this, it will tend to respond by restricting the liberty of the public at large, in order to deprive them of the opportunity to harm themselves. It is the only sure way to deflect criticism. Every time that we criticise social workers for failing to stop some terrible incident of child abuse, we are, in effect, inviting them to intervene more readily in the lives of innocent parents in case their children too may be at risk.

The law can enhance personal security, but its protection comes at a price, and it can be a heavy one. We arrive therefore at one of the supreme ironies of modern life. We have expanded the range of individual rights while at the same time drastically curtailing the scope of individual choice. Dilemmas of this sort have existed for centuries. What has changed in recent years is the degree or risk that people are prepared to tolerate in their lives. Unlike our forebears, we are no longer willing to accept the wheel of fortune as an ordinary incident of human existence. We regard physical, financial and emotional security not just as a normal state of affairs but as an entitlement.

Some people will welcome this change, others will deplore it; most of us probably take different views of it at different moments of our lives, but none of us should be surprised it is the rational response to important changes in our world. Improvements in the technical competence of humanity have given us much more influence over our own and other people’s wellbeing; but they have not been matched by corresponding improvements in our moral sensibilities or our solicitude for our neighbours. Misfortunes which seemed unavoidable to our ancestors seem eminently avoidable to us. Once they are seen to be avoidable consequences of human agency, they tend to become a proper subjection of the attribution of legal responsibility.

So, after every disaster, we are apt to think that the law must either have been broken or insufficiently robust. We look for a legal remedy, a lawsuit, a criminal prosecution or more legislation. ‘There ought to be a law against it,’ is the universal cry. Usually, there is or soon will be. Of course, the law doesn’t in fact provide a solution for every misfortune; it expects people, within limits, to look after their own interests. It assumes that some risks may have to be accepted, because the social and economic costs of eliminating them are just too high. However, public expectations are a powerful motor of legal development. Judges don’t decide cases in accordance with the state of public opinion, but it is their duty to take account of the values of the society which they serve. Risk aversion has become one of the most powerful of those values, and is a growing influence in the development of the law.

These gradual changes in our collective attitudes have important implications for the way that we govern ourselves. We cannot have more law without more state power to apply it. 

The great 17th Century Political philosopher Thomas Hobbes believed that political communities surrendered their liberty to an absolute monarch in return for security. Hobbes has very few followers today, but modern society has gone a long way towards justifying his theories. We have made a leviathan of the state, expanding and harnessing its power in order to reduce the risk that threaten our wellbeing. The 17th Century may have abolished absolute monarchy, but the 2oth Century created absolute democracy in its place.

How to limit and control the power of the state is an evergreen question. The modern state’s monopoly of organised force and its growing technical capacity have made it a more urgent question for our age than it was for our ancestors. But the nature of the debate is inevitably different in a democracy. Our ancestors looked upon the state as an autonomous power embodied in a powerful monarch, and its ministers. It was natural for them to talk about relations between the state and its citizens in ‘us-and-them’ terms. 

But in a democracy, the state is not ‘other’, it is not ‘either with us or against us’, it is us, which is why most of us are so ambivalent about it. We resent its power, we object to its intrusiveness, we criticise the arrogance of some of its agents and spokesmen, but our collective expectations depend, for their fulfilment, on its persistent
intervention in almost every area of our lives. We don’t like it, but we want it. The danger is that the demands of democratic majorities for state action may take forms which are profoundly objectionable, even oppressive, to individuals or to whole sectors of our society.  ( 

— Lord Sumption is a former justice of the UK’s Supreme Court. His presentations in the BBC series, ‘The Reith Lectures’ are available on the BBC World Service website. This transcription is the first in a continuing series. In the next lecture, he focuses on the challenge of taming the leviathan of controlling the actions of the democratic state.

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