Scholars' Association News
Issue 21
January 2012

04/04


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Law and Society: Which is to be master?
by Despina Schina, PhD in Law

Richard Aikens & Kenneth Richardson (ed.), Law & Society:Which is to be Master?, 2008 Temple Festival, London: ed. Wildy, Simmonds & Hill, 2011, p. 146 ISBN: 9780854900886

The Onassis Foundation sponsored the Temple Festival in 2008 which was organised to celebrate the 400-year anniversary of the granting of full sovereignty to London Temple Church and the regional lands that surrounded it to the Inner Temple and Middle Temple by King James VI and I of England. These later emerged as barrister societies, the freehold of the Temple lands. These societies, along with Lincoln’s Inn and Gray’s Inn, have constituted since then working centres for English barristers practicing in England and Wales.

Among other things, the Onassis Foundation sponsored a publication of the volume in question, which includes all speeches from the 2008 symposiums that took place within the context of the said festival with the umbrella theme "Law and Society" and the intriguing question "Which is to be Master?"

The reason for this sponsorship is explicitly explained in the President of the Foundation Anthony Papadimitriou’s introduction in the said publication. According to him, Greek civilization should be broadly interpreted as one of the pillars of global humanitarian and cultural heritage, while the propositions fostering the relationship with Greek civilization, though not always obvious, need to be strengthened. Within this framework, the collaboration with other bodies which share the Foundation’s vision, which are not supported by other organisations and whose representatives express the prerequisite interest and ability to cooperate is needed.

In the preface of the book, Lord Justice Aikens refers to the history (since 1608) of the barrister’s profession and the contribution of the Bar Association and the Judges Association to the establishment of the Rule of Law of the current executive authority in the Parliaments as conveyed through a series of court rulings which comprise the law (Common Law) that applies in Great Britain. Sir John Baker’s foreword on British law in 1608 and its subsequent evolution follows.

The book is divided into five sections, as many as the respective symposiums organized with a view to examining the relationship between law and science, religion, politics, commerce and international relations. The five symposiums attempted to answer the main question, namely "does law, and specifically British law, merely reflect the social developments that unfold in the fields of politics, science, religion, commerce and international relations, or has it instead supported or hindered them?"

From a methodological standpoint, all sections begin with a prologue mentioning the viewpoints of Classical Greek Antiquity regarding the subject of the respective symposium, and then there is a preface with the pertinent ideas that held sway in 1608. Afterwards, the Chair of each symposium makes his/her own introduction on the subject and introduces the four speakers who in turn explore the topic of the symposium. Even the choice itself to call these events "symposiums" (the word comes from ancient Greek and means "drinking together") instead of mere "conventions" is not random. As Lord Justice Rix states, this term is a tribute to Plato since "those who drink together become wise men"! Of course, it is difficult to convey the comprehensiveness of these speeches which are at the same time so compelling in such a brief statement without lacking in typical British humour. We will nevertheless attempt to outline some main pivotal themes.

The first symposium revolves around the relationship between law and science. As far as the stance of the ancient Greek world on this topic is concerned, the point in discussion is the charges of irreverence against philosophers and scientists of the time who advocated philosophical or scientific theories unacceptable for their time. Baroness Ruth Deech, Chairwoman of the Human Fertilisation and Embryology Authority, poses the question to what extent the regulation of fertilisation treatments by legal means conflicts with human rights. For example, the 1990 Human Fertilisation and Embryology Act promotes the principles of autonomy, of the well-being of the embryo, the safety of and respect for the embryo and the preservation of life through research on stem cells. According to this Act, keeping an embryo in the laboratory for more than 14 days is a criminal offence. Do these provisions hinder scientific research? Is the application of this legal framework based on scientific data, on morals or on many different factors? Corresponding questions arise also from the storing of biometric data, the video recording of individuals with cameras, and the collection and dissemination of personal data.

The second symposium deals with the relationship between law and religion. The title page of this symposium is the famous confrontation between Creon and Antigone in Sophocles’ eponymous play. In particular, Prof. Anthony Grayling refers to the concept of a secular state. According to the Professor, religious associations are civil societies of physical entities, as their members, and thus should share the same rights and obligations as other associations, such as labour unions, political parties and women’s organisations. Nonetheless, in Great Britain twenty six archbishops and bishops have the right to speak in the House of Lords. This is in addition to the archbishops and bishops who sit in the House of Lords because of the titles they have been granted. However, according to Professor Grayling, the rule of law in a society should favour no individual and no opinion. Instead, it should remain unbiased and neutral. Lord Justice Rix mentions the 2006 Racial and Religious Act and the blasphemy offence to be repealed in England and Wales in 2008.

The third symposium touches on the relationship between law and politics. Professor Malcolm Schofield expounds in his preface on the relationship between law and politics in Ancient Greece. He argues that the Athenian democratic system was the incarnation of law, as the Athenians reckoned. In addition, their legal system could be described as a fully-fledged active democratic civilization. Lord Bingham of Cornhill, appointed Lord Chief Justice in Britain, refers to the role of the British Parliament which, according to the country’s legal system, enjoys the highest legislative power. He also opposes, following Professor Peter Hennessy, the creation of a coded and entrenched written constitution.

Professor Vernon Bogdanor poses the question to what extent the British constitutional system is determined by the separation of powers theory. His view on the subject is that over the past few decades, many steps have been made towards the establishment of such a separation even though power, divided as it may be, is still in the hands of the dominating elite. Shami Chakrabarti, a distinguished lawyer and Dean of Oxford Brookes University, compares democracy to a mechanism with both moving and fixed parts. In the moving parts she includes the regular elections procedure, which she deems a necessary but not sufficient condition for the proper functioning of democracy. But for democracy to be kept afloat, its fixed parts are required; namely non-negotiable human rights and freedoms, the rule of law, judges to ensure its application and an independent government. As the renowned lawyer states characteristically, if one starts electing the members of the judicial authority or exerting political pressures on them, in the end Barabbas will always be the one released. Moreover, Ms Chakrabarti refers to the British 1998 Human Rights Act, in force since 2000, which then created problems to the Draconian government policy regarding the granting of asylum and the fighting of terrorism.

The fourth symposium addresses the relationship between law and commerce. Professor Malcolm Schofield, in his prologue, mentions that the Athenian legislation made provisions for inspectors to inspect markets and to ensure compliance with the established measures and stations, and employees appointed by lot who were responsible for selling corn, flour and bread. From the mid 4th century BC, commercial law, the use of written contracts and the corresponding judicial protection developed significantly to deal with the various issues that arose between the Athenians and foreign merchants and ship owners.

Lord Browne of Madingley, President of the Royal Academy of Engineering, explains in his speech that although businesses bring people closer, their collaboration on an international level would not be possible without rules. The free market is not a market without rules or national and supernational institutions, although the latter should be flexible and able to adapt to new challenges, as for example the existence of sovereign international capital and climate change.

Sir Andrew Large, former Deputy Governor of the Bank of England, focuses on the relationship between law, British in particular, and the financial system. His speech concentrates on the issues emerging from the financial crisis amongst which is the following question: "How can legal private actions in the financial field not lead to adverse consequences for society in its entirety?" He believes that the main legal principles must apply in this case as well. Also, the issue of "moral hazard" arising from the use of tax payers' money to rescue banks, which can create greater leverage in the future and lead to greater social costs in the long term, is thoroughly explored. In his opinion, high levels of debt and leverage which inflate property values to a point where investor trust is lost and deleverage starts always create systemic hazards. The central banks can react in two possible ways: either "throw" money into the market and businesses at a social cost for tax payers or resort to inflationary policies with the corresponding cost for depositors and the economy. This is more of a political choice rather than a legal one. Finally, it comprises the adoption of international standards and codes intended to restore the integrity and reliability of financial markets and to recover consumer protection in the said markets.

Of particular interest is the contribution made by Jan Paulsson, eminent arbitrator in international arbitrations and a University Professor. In his report on international investments Dr Paulsson thinks that the so-called arbitrariness of the national legal system constitutes a strong counterincentive for investors. He pays great attention to the potential internal instabilities of the legal system – either in cases where international courts are biased or in cases when a rather extensive time period is needed for justice to be served. He offers the example of the extremely sluggish Indian justice system – even though the Greek justice system could similarly be used as an example. Lord Phillips of Worth Matravers, Lord Chief Justice, portrays the parallel emergence of London as an international commercial and an economic hub, and the gradual development of resolutions of business disputes in London via the British courts and/or arbitration.

The fifth symposium engages in the relationship between law and international relations. Professor Malcolm Schofield begins with the slaughter of the population of Milos island by the Athenians and the negotiations that preceded during the Peloponnesian War, and uses these as a Realpolitik example where law and justice played no part. However, ancient amphictyonies (associations of neighbouring cities) imposed restrictions on the use of military force between their member cities and penalties in case of infringements.

Sir Lawrence Freedman, Professor of War Studies at King’s College London, asks to what extent the declaration of war should be governed by international law. He believes that the respective resolutions of the UN Security Council definitely add a level of legitimacy and general acceptance but does not always ensure the legitimacy of the action. A vivid example was the declaration of war against Iraq in 2003 over the alleged possession of weapons of mass destruction which was later discredited after the invasion.

Nowadays, a significant factor in international relations is the reduction of discrimination between the native and non-native element, as in the cases of terrorism. Another principle, the principle of non-intervention in the internal affairs of other nations, does not always apply as, for example, in the cases of international measures against the apartheid regime in South Africa. More recently, the interventions ordered in Kosovo, Bosnia, Sierra Leone and East Timor created precedents for the intervention of Russia in South Ossetia, Georgia. In general, according to the speaker, the role of international law will always be problematic when it comes to the use of military force because it is difficult to assert the power of the law on the main factors and the interest that coexist therein. Nevertheless, the role of the UN Security Council is still important in order to determine whether the use of military force is legal or not.

The work of the Court of Justice of the European Union and the implementation of the 1948 Universal Declaration of Human Rights by its authorities are presented eloquently by Sir Konrad Schiemann, who has served the Court as judge. Finally, Lord Brittan of Spennithorne, who in the past served as European Commissioner, talks about the importance of the authorities the European institutions have to impose penalties in case of violations of European Union Law so that, in this way, they can facilitate their role. He also compares these authorities with the World Trade Organization’s authorities which are far more limited. In the question "Between law and society which is to be master?" Lord Brittan is resolute: "Society." Because the law, even though it contains elements of certainty, must be able to change and it indeed does change by the members of each society.

In conclusion, this book fascinates not only with its gripping topics for discussion but also with the engaging personalities of its speakers/authors. Indeed, all contributors possess in-depth knowledge of classical education, British legal tradition or science, and the subject matters in question, which they present clearly and comprehensively, without superfluous pomposity.


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