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Foreword to CJLPA: The Human Agenda

Updated: 4 days ago

The three broad categories of the title express overlapping perspectives of human difference. Read together they comprise the topic of Human Rights which is the focus of this volume. It exemplifies Lady Arden’s appreciation that The Cambridge Journal of Law, Politics, and Art is likely to expand our horizons by bringing together subjects which often sit in splendid isolation from each other.


The premature loss of Michael Taggart leaves to others his insight that Norman Birkett’s judgment in the case of the slave’s grandson and peer Leary Constantine against Imperial Hotels in 1944[1] for not accommodating him because of his colour,[2] could and should have evolved into an overarching human rights principle of entitlement to equal treatment. The point was taken up by Lord Bingham in A(FC) v Secretary of State for the Home Department (2004),[3] where he held disproportionate and unlawful the detention of non-UK suspected terrorists, when UK terrorist suspects were exempt from such arrest.


In the first Oxford Essays in Jurisprudence, Professor Donald Harris QC (Hon) endorsed the opinions of Jeremy Bentham and Herbert (HLA) Hart that there is no concept of law beyond what is humanly created, to which in a New Zealand Privy Council appeal Lord Hoffmann added Kant’s similar conclusion: there is no law an sich. Harris responded to my initial Oxford tutorial essay about a political philosopher, reproducing what had been written about him by others, with the real point—‘yes, but what do you think?’ That for me gave Law’s answer to its own question of source, which in physics is ‘where does the universe come from?’—namely, by simply creating it.


In numerous contexts,[4] the Court’s law-making role is described as ‘incremental’, which mathematicians define as ‘denoting a small positive or negative change’. But while using that term, dissenting, in JD (FC) v East Berkshire Community Health NHS Trust,[5] the next year in, Barclays Bank, Lord Bingham wrote:


I incline to agree with the view…that the incremental test is of little value as a test in itself, and is only helpful when used in combination with a test of principle which identifies the legally significant feature of a situation.[6]


In the same case Lord Mance, reviewing prior authority, considered:


‘Incrementalism’ was…viewed as a corollary of the rejection, now uncontroversial, of any generalised liability for negligently caused economic loss, rather than as necessarily inconsistent with the development of novel categories of negligence. Having said that, caution and analogical reasoning are generally valuable accompaniments to judicial activity, and that is particularly to in the present area.


Lord Mance’s ‘caution’, read with Lord Bingham’s rejection of ‘incremental’ as a definitive limit to judicial law-making, recalls Chief Justice Corstens’ criteria, using French in his final speech in The Netherlands: ‘la prudence et l’audace’.


The Corstens / Bingham / Mance policy, of adopting an approach sensitive and appropriate to context, promotes optimum law, with legislative and judicial contributions forming a seamless whole, the judges discharging their duty to ‘do right’ by developing the common law ‘after the laws and usages of the realm’, especially when those are evidenced by recent legislation.


Anthea Roberts’ best-seller Is International Law International?, sees the Australian scholar, experienced also in England and the USA, describe the range of senses in which ‘international law’ is employed; as is sharply evidenced by the law of England, which in some spheres regards international law as binding, in others as optional.[7]


In Keyu v Secretary of State for Foreign and Commonwealth Affairs, Lord Mance wrote:


Speaking generally, in my opinion, the presumption when considering any such policy issue is that [Customary International Law], once established, can and should shape the common law, whenever it can do so consistently with domestic constitutional principles, statutory law and common law rules which the courts can themselves sensibly adapt without it being, for example, necessary to invite Parliamentary intervention or consideration.[8]


He later added:


The role of domestic courts in developing (or…even establishing) a rule of customary international law should not be undervalued. [T]he intermeshing of domestic and international law issues and law has been increasingly evident in recent years…The underlying thinking is that domestic courts have a certain competence and role in identifying, developing and expressing principles of customary international law. [9]


In summary, Law concerns the rules needed to manage human difference; Politics their creation and change; and Art connotes the cultures that contribute to and illuminate each. The categories are not discrete.


The first category—decent Law—reflects the elements of the judges’ treble undertaking under the Promissory Oaths Act 1868:


[1] I will do right to all manner of people; [2] after the laws and usages of this realm; [3] without fear or favour, affection or ill will.


In the United Kingdom, as to the second category—Politics including rule-making—Parliament has and executes plenary authority. Yet the judges’ role of making, applying, and where necessary updating the common law is a major feature. Its functions include the assertion of Parliament’s role, and adjudication of disputes in accordance with the values of the rule of law. These include principles of international law which in practice largely requires enforcement by the domestic laws of individual states.


Fundamental to both first and second categories is the third—the Art of understanding the evolving cultures of society, which is also essential to political success.


This special edition of the Journal addresses current profoundly troubling situations of human difference, each engaging Law, Politics, and relevant Art. Overarching all of them is the crucial need to achieve Reconciliation of difference, the capital denoting its importance.


Each of the situations discussed entails competing claims for inconsistent rights, which may be procedural or substantive. Lord Mansfield’s celebrated procedural conclusion in Somerset v Stewart (1772),[10] that alien status was no bar to habeas corpus for a slave held in custody on the Thames, was endorsed by the US Supreme Court in the Guantanamo Bay case Boumediene v Bush.[11]

 

There has been procedural delay of international Law and Politics since the end of WWI in finding Art to protect former Palestinian residents of the Ottoman Empire

 

There is then the substantive inability of the law to date to respond to aggression—allegedly committed in Ukraine by the then chair of the Security Council—which, though in Nuremberg singled out for response, awaits answer.

 

That our generation has been slow to respond to the ultimate challenge of global warming is of a piece with the appalling human rights statistics, including 108.4 million people around the world who are forcibly displaced; failures since 1937 to implement the Terrorism Report for the League of Nations, and more generally to grip the death toll in international migration; the disgrace of modern slavery; the division in the General Assembly between North (or West) and South; and the continued abuse of civil rights of women and children.

 

The tragedies of Ukraine, Israel, and Palestine recall, in the case of the Russian Federation, its obligations, as Permanent Member and in February 2002 Chair of the Security Council with primary responsibility under Article 24 of the UN Charter, to use Chapter VII powers to enforce Article 2’s prohibition of the use of force against any state; in the case of Israel the country readings from whose Old Testament inspire decency throughout the world; and, in the case of Palestine, the Prophet whose advocacy of non-violent means to resolve disputes exemplified the rule of law. The Swiss theologian Hans Küng’s writings on the close relationships among the three monotheistic religions point to the Art of Reconciliation among them. Each society, and the other members of the world community, well know that the promotion of peace by human creativity and achievement is essential to answering the greatest challenges their peoples face.

 

That is the context of the following essays identifying urgent problems of Human Rights, and potential responses by Law, Politics, and Art, which contribute to the classic University function as critic and conscience of society.

 

Sir David William Baragwanath KNZM KC


Sir David William Baragwanath KNZM KC is a retired New Zealand judge. He was a member of the Appeals Chamber of the Special Tribunal for Lebanon at the Hague, serving for a term as President.

 

[1] [1944] KB 693.

[2] In New Zealand, a deserved response to description by a pompous speaker as being among ‘coloured brethren’ was ‘I reply to my colourless brother’.

[3] [2004] UKHL 56, [2005] 2 AC 68.

[4] As by Lord Steyn in his much-cited opinion in Marc Rich & Co. A.G. v Bishop Rock Marine Co. Ltd [1996] AC 211, 234 B-C.

[5] [2005] UKHL 23, [2005] 2 AC 273 para 50.

[6] Her Majesty’s Commissioner of Customs and Excise v Barclays Bank plc [2006] UKHL 28, [2007] 1 AC 181.

[7] Anthea Roberts, Is International Law International? (OUP 2017).

[8] [2015] UKSC 69, [2016] 1355.

[9] Al-Waheed v Ministry of Defence [2017] UKSC 2, [2017] AC 821.

[10] Lofft 1.

[11] 553 US 723 (2008).

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