While Jonathan Sumption’s Reith lectures offer some food for thought, some of his claims are questionable. This is from this morning’s lecture:
Democracies operate on the implicit basis that although the majority has authorised policies which a minority deplores, these differences are transcended by their common acceptance of the legitimacy of its decision-making processes.
Well … up to a point, m’lord. It’s true that democracies depend heavily on legitimate processes in order to deliver legitimate outcomes. But it’s also true that those processes are not enough in themselves to ensure legitimacy. Majorities, and apparently legitimate processes, authorised policies by Hitler and Mussolini. Sumption cites James Madison in another context; this is what Madison has to say about majority rule:
It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure…. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects … In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger …
It’s fundamental to democracy that the rights of minorities are protected; if they are not, it is no longer a democracy.
Sumption’s view of the legal process, oddly for someone in his position, veers at times towards an ideal.
Law is rational. Law is coherent. Law is analytically consistent and rigorous.
If law was rational and coherent, it would be predictable. We should be able to state with confidence what the law is as soon as we have seen an unequivocal statement in a statute, without waiting for confirmation from the courts. Look at Sumption’s own comment on a Supreme Court decision:
The majority’s reason, however dressed up, was that they didn’t approve of the power that parliament had, on the face of it, conferred on ministers. Three of the judges thought that it was such a bad idea that parliament could not possibly have meant what it plainly said.
If the law was consistent and rigorous, it should be the case that the Supreme Court would deliver consistent, clear thematic judgements – but even when they say they agree with each other, they can’t bring themselves to say the same things.
More fundamentally, if the law was consistent and rigorous, whether or not people’s interests are protected shouldn’t depend on whether or not they contest it. Courts routinely rubber-stamp oppressive orders relating to debt simply because the debtors don’t make a submission. The big utility companies notoriously can afford to play the odds – losing a few cases they don’t seriously argue about because they routinely win so many without an argument. The law, as Sumption says, has certain biases: “in favour of individual rights and traditional social expectations “. But it also has a ferocious bias towards people who can afford to hire lawyers.