Recently we have been subjected to
the most sanctimonious drivel about the glorious impartiality of English law.
The case in question was that of the High Court’s decision that Brexit could
not be set in motion without the prior agreement of Parliament. I’m not
concerned with the legalities here. I am concerned that to dare question the
Judge’s impartiality is to verge on secular blasphemy. Somehow we are expected
to believe that these same judges who have European interests and sympathies
become judicial deities when they put on their wigs.
Law is a fine thing and beautifully
expressed in Robert Bolt’s play: A Man
for all Seasons.
When asked whether he would give
the Devil the benefit of the law, Sir Thomas More answers in the affirmative,
asking his son-in-law whether he would cut a great road through the law to get
at Satan. William Roper has no doubt about the matter. He would cut down every
law in England to do so.
Thomas More responds thus:
“And when the last law was down,
and the Devil turned around on you—where would you hide, Roper, the laws all
being flat? This country’s planted thick with laws from coast to coast—man’s
laws, not God’s—and you cut them down . . . d’you really think you could stand
upright in the winds that would blow then?”
It’s a fine speech, one of a whole
canon that sanctifies English law. I also believe the principle applies equally
well to nation states. They too in their traditions and variety stand as
bulwarks against the tyranny of empires from—Napoleon to Brussels. The same
might also reflect the tension between perceived States’ rights Vs Washington
in America. Levelling flat —however grand the motive—is a dangerous game.
But we are talking about law and there
is more than a hint of hypocrisy in all this. In fact it exemplifies the Hans
Christian Anderson story of the ‘Emperor’s New Clothes,’for it is not only the
law we are expected to worship, but those who interpret the law; and judges for all their robes and long wigs are
not even emperors, though some would demur.
Marx hit the nail on the head when
he diagnosed all law as essentially class based, developed in the interests of
the ruling class. It might, as a byproduct, defend the property rights of the
poor, but it is the rich who benefit the most or the dominant power in the establishment at any given time.
In its crudest form this is best
illustrated by the career of the notorious Judge Jeffries, the ‘hanging judge’
and champion of King James II. Jeffries was made Chief Justice after convicting
one of the king’s opponents, Lord Russell, despite a previous judge having
serious doubts about his guilt. The solution then – and now – was to replace
the judge. After the 1685 Monmouth rebellion against James, Judge Jeffries hung
hundreds, often in batches, and transported hundreds others to the West Indies.
A grateful king elevated Jeffries still further, making him Lord Chancellor.
The right interpretation will get
you far in the British establishment, but when the establishment changes . . .?
In the so-called ‘Glorious
Revolution’ of 1688, the Catholic James was deposed and replaced by a
Protestant Dutchman, William III. Jeffries was arrested and died in the tower
of London a year later. His interpretation of the law was not to taste of the
new regime.
The Americans, though less brutal,
recognise the reality of politics and justice when it comes to the composition
of the Supreme Court. There, political balance or lack of it is openly debated.
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In Britain 7% of us are privately educated as
opposed to 75% of senior judges. And yet we cling on to the fiction that judges
are socially, culturally and politically impartial, and that this impartiality can never be questioned
