|
Lord Hailsham (Lord Chancellor of Great Britain) On Law in a Changing Society
Cite as : (1971) 1 SCC (Jour) 14
(Excerpts from papers and speeches delivered in New Delhi)
The Rt. Hon. Lord Hailsham of St. Maryleborne, the Lord Chancellor of Great Britain, a Jurist of international reputation and of varied experience as a Parliamentarian, a Cabinet Minister and a Publicist, who was in New Delhi in connection with the Fourth Commonwealth Law Conference (January 6th to 13th, 1971) gave thought provoking lectures and press statements on the role of the judiciary, social legislation, privileges of MPs, the role of the elite in a federal and parliamentary democracy and the law and the law and the common man.
1. ON THE ROLE OF THE JUDICIARY
In his Press Statement on 4th January, His Lordship said that the judiciary should keep itself abreast of changing social conditions. But its main job is to interpret law. In his own country the courts cannot strike down a law made by Parliament because Parliament is supreme.
There is need to have a hard look at a social policy to see whether it needs be changed. Since social changes are affected by political parties, such policies become an object of controversy. Countries which have written Constitutions sometimes found it difficult to bring about social changes . But law can be interpreted keeping in view the social conditions. The American Supreme Court for a century interpreted the law of human equality in a manner which made for segregation of race. Later another set of judges took a different view of the same legal provision. But, essentially, courts can repeal legal provisions in the name of social justice. If the rule of law is to prevail, it is necessary that the judiciary should remain independent.
2. ON SOCIAL LEGISLATION AND HUMAN RIGHTS
Lord Hailsham says one should take into account social conditions. But legislation has to be enacted to introduce a new social policy or scrap one that has lost its validity.
According to him the best way to safeguard human rights is to have regional conventions on the lines of the European Human Rights Convention, to which Britain was a signatory. A single world authority cannot possibly be effective in this field because all countries will not accept it.
He says that the European Convention does not in any way curb the independence of the British Parliament. It is only a contractual undertaking and a treaty which Britain has to honour like any other treaty. There is also no question of British courts being at loggerheads with the convention. If at all there is a controversy, it would be between Parliament and the convention. This would not happen unless it involves an extremely important national issue.
3. PRIVILEGES OF MPs
The powers and the privileges of MPs in Britain are circumscribed. They cannot be increased or taken away. But these powers should be exercised with care. MPs should themselves limit their privileges. They should not bring any issue of a breach of privilege before the House unless it involves the functioning of Parliament itself or their own functioning.
A threat to the life of an MP could constitute interference in the functioning of Parliament. "We receive such threats but do not make much noise about it." Bribery, or threat of mob violence can also be treated as interference. "But it has been seen that many MPs are rather too ready to bring a case of libel before the House." he said.
An MP is under no obligation to repeat outside the House what he has said in the House. But the important thing to remember is that the privileges belong to the House and not to its members. Often what an MP says in the House causes a great tension outside. What should be MP do then? The only privilege a member of Parliament has out on the street is to go to the House and come back home.
Are Judges impeached in Britain? Lord Hailsham recalled only three such cases, all involving the Lord High Chancellor, in the past three hundred years. He hoped there would be none in India.
4. THE ELITE IN FEDERAL PARLIAMENTARY DEMOCRACY
Lord Hailsham had some excellent views on the above subject when he delivered the second Nehru Memorial Lectures on 5th January at Vithalbhai Patel House under the auspices of the Institute of Constitutional and Parliamentary Studies. He paid an eloquent tribute to the late Jawaharlal Nehru who epitomised precisely the paradox, the necessity and the dilemma of an elite in a democracy. He said that "the first function of an elite in a democracy was to cultivate genius and originality as the elite was the only means of achieving breakthroughs necessary for human progress. The test of a democracy was not ultimately its recognition of majority rule but the extent to which it recognised and cultivated its minorities—the minorities "of dedicated individuals acting like yeast among the relatively apathetic (and inarticulate) multitude".
"If it (democracy) follows mere numbers, if it pursues the masses, if it worships at the alter of the Philistines, I believe it to be doomed and I fear that by the like token it deserves to be damned."
The real peril to democracy, was that there were not enough people who were prepared to assess their own capacity to operate as members of the elite in a democracy keeping in view their own interests, aspirations, the respect they commanded, and the time they were prepared to devote to such work. Like all volunteers they tended to be unappreciated.
"There are too many people who involve themselves in nothing, participate in nothing, are inspired by nothing. But these are not democrats. The real democrats are not the demonstrators, but the participators, the builders, the optimists, the people who see that in their own commitment to society lies the prospect of real human advance, and who are prepared to respect in others the same commitment, even if, as sometimes happens, they happen to find themselves on opposite sides in the external dialectics of democracy."
If a free society managed to throw up enough of such people, it would survive, for it would be putting quality above quantity, at every level.
But this was not advocate a form of intellectual snobbery to take the place of the old society snobbery. The truth was that anyone—"yes, literally anyone, can belong to and ought to join an elite of this character (self-confident, loyal, enlightened, liberal, conscious of its function in leading and guiding public opinion and if criticising one another and reviewing its own postulates) in some capacity and at least for some period of his life."
"It (the elite) is not a closed society. It is not a class-conscious group. It is a free democracy. It is open to comers of all ages who wish to identify themselves with the active life of the community in which they live."
All significant figures in human history—founders of world religions, great scientific discoverers, dramatists and bards, political leaders and technologists—had something in common. In each case, one found at the base of a new discovery or a new movement a man of intellect and originality, not always of the highest social order, usually unpopular and persecuted by the establishment in his life time, but able to gather round him and convince a sufficient public to perpetuate his work, and finally to overcome resistance in the light of his genius.
Democracies, like other societies, neglect genius at their peril. Authoritarian regimes end by suppressing them.
It was simply not true that society slave or free, could get by without a series of recognised postulates which underlie every political, religious or social conflict. There could be no argument without a common starting point. It was false to pretend that in art, science, philosophy, history, law or religion, there was no such thing as authority, that Jack was as good as his master, that everything could always be questioned all the time, or solved by counting heads and taking that all questions can be equally a majority vote, or worse still by taking a sample poll and programming the results on a computer.
Lord Hailsham queried whether it was a coincidence that revolt seemed to be commonest where the talented young congregated most. Most of the revolt seemed to be oriented towards extremism and occasionally broke out in deplorable violence but he was not sure whether this was the most significant thing about it, it being part of the perennial struggle of youth against age, of idealism against society. "May it not also be a protest by talent against Philistinism and mediocrity?"
On comparing democracies and dictatorships one could see that while every attempt was made in the latter system to indoctrinate the youth, at least enormous efforts were made to identify talent, to simulate gifts, to create what was called, in the jargon of the system, cadres, and to cultivate an elite, loyal to the regime, honoured by it, used by it, and to a large extent directing it and perpetuating it.
It was not setting this forward as an example but merely noting it as a fact, for one could not disregard it or deny its significance.
As to the place of law in a democracy, Lord Hailsham said that to command respect, law must be enduring, and to have moral authority it must be compatible with objective moral standards.
"But if it remains unalterable it will simply create injustice when the situation which gave rise to its precept changes as all situations do. And injustice produces anger and unrest, ultimately breaks forth in violence."
Law was the first of the social sciences and like all sciences needed to be in a constant state of evolution. Jurisprudence must remain an open study constantly re-examing its own postulates. Law was the thing designed to inhibit the caprice of absolutism, an attempt to bring reason into the conduct of human affairs and it was always viewed as a clog to human activity by those impatient to impose their will on others.
5. THE RULE OF LAW BASED ON JUSTICE
While moving the Vote of Thanks at the inauguration of the Fourth Commonwealth Law Conference on 6th January, 1971 at Ashoka Hotel Convention Hall to His Excellency the Rashtrapati V.V. Giri for his inaugural address, Lord Hailsham said:
"I rise to thank you, Your Excellency, for doing us the honour to inaugurate our Commonwealth Law Conference, and, in so doing, to thank also the Government of India for their hospitality and kindness in permitting this conference to be held on Indian soil in the Indian capital. In so doing, India has conferred a great honour to the Commonwealth and paid her own worthy tribute to the importance of the rule of law in our midst.
Lawyers, whom I am here to represent, Your Excellency, are a race not universally popular, but, I believe, universally found to be indispensable. How can they be universally popular when it stands to reason that in all contested litigation one party at least must go away disappointed, and is usually readier to blame his own lawyer, or his adversary's—or perhaps even the Judge—rather than his own conduct, or the weakness of his case?
Nevertheless, Your Excellency, we lawyers are profoundly proud of our calling. Whatever other people may think of us, we regard ourselves as in the service of mankind.
Ideally speaking—and perhaps in this workaday world we are a little too shy of speaking of ideals—no one should be so poor, no one so wicked, above all no one so unpopular or hated of mankind that he cannot find by his side in his hour of need a trustworthy lawyer, ready with dispassionate advice and willing to throw into his service, at whatever cost to himself, except the sacrifice of the high standard of ethics by which the profession is bound, all the talents he possesses at his command. Without the advocate, devoted but jealous of his integrity, there can be no impartial justice, and, apart from his service to his client, it is part of the duty of the advocate constantly to assert the need for the rule of law as an essential condition of the happiness of mankind.
Without the maintenance of the rule of law based on justice, men are oppressed by tyranny—or, worse still, abandoned to chaos, which is the worst tyranny of all. Law is the condition of freedom. Law is the first of the social services, the first to be established in point of time in an ordered community, logically the first, because without justice, applied and enforced through law, none of the other social services can work.
But law remains an instrument, not an end in itself. Law is the means. Justice is the end. And for law to achieve justice it can never remain still. It must never be allowed to get out of touch.
Law is not a sacred mystery revealed in an archaic language only to a few initiates. Law is a social science, and lawyers must learn to regard themselves as social scientists. The principles of justice do not change, but their application in terms of positive law must alter with changes in society and circumstance. This presupposes a race of lawyers, a breed of judges, not aloof from the society of their time but alive to its realities. It implies a system of law, durable, but constantly, under revision. It implies a race of legislators respecting the rule of law, and lawyers whose business it is to apply legislation in the sense in which it is passed and not to seek either to legislate themselves or to obstruct the constitutional legislation of others.
Your Excellency, the pleasure we feel at being the guests of India at this conference is enhanced by the pleasure we experience at the membership of India in this Commonwealth of nations which brings together in common purposes nations so very different from one another in race, size, wealth and geographical location.
But our pleasure is perhaps greatest when we see in Your Excellency and the Government of India the representatives of a nation, almost unique in size and geographical extent, dedicated to the rule of freedom under law, freedom as we understand freedom to be, and not the bogus kinds of freedom sometimes found elsewhere, and law as we understand law to be, based upon objective moral and social principles and not the capricious rule of arbitrary masters. Perhaps that is not surprising since the founders of modern India have been largely drawn from the ranks of the profession to which we belong.
Your Excellency, my earnest prayer, in which I believe the lawyers of the Commonwealth and free world all will join, is that India and her people succeed in the task which they have set themselves of achieving sufficiency and dignity for every man in freedom under law.
6. LAW AND THE COMMON MAN
Addressing the first Plenary Session of the Conference on 'Law and the Common Man' on 7th January Lord Hailsham said:
The other day at a dinner party I spoke of freedom, and my next door neighbour, who was a diplomat, asked me when I sat down: "What can a poor man get from freedom?" I was tempted to answer him, as my father had answered a heckler at a political meeting fifty years ago (for my father was a Conservative politician as well as a lawyer). The heckler had asked him: "What has a poor man got to conserve?" My father answered: "His dignity and self-respect". For I must say that the more I see of human poverty and degradation, the more I see of homelessness, lack of clothing, lack of food, lack of a job, the more importance I attach to freedom not simply as a luxury to be obtained and enjoyed when times are good, but as the very means of obtaining the good things of life.
Freedom is often derided as a kind of jungle warfare where the weakest go to the wall. But the truth is that anarchy is as much the enemy of freedom as oppression. The condition of freedom is law, the enforcement of objective rules based on justice, ascertained in advance of application, applied by an independent judiciary, enforced by a government representative of the governed, responsible to a legislature elected by the governed. That is what I mean by law, and nothing else will do. It is only in conditions produced by law that freedom can grow. It is only in conditions where freedom can grow that human dignity can be achieved. It is only free human beings who have attained human dignity who will be ultimately secure in the possession of food, homes, jobs and the security which goes to make the good life. This is the basic philosophy on which I build what I have to say about law and the common man.
The elaborate legal systems which we know—the English Common Law, and the Roman Civil Law, have grown very slowly over centuries and they have been very largely the product of the political struggle. England began as a conquered nation and much of her legal and constitutional history, as Disraeli long ago pointed out, is the result of that conquest and of the slow emancipation of the masses and their integration with an aristocracy of their conquerors and a throne with whose occupants they originally had little in common.
Other nations have begun their march towards freedom not with a struggle against their Kings, or barons, but in a demand for independence from a foreign domination. In such cases the march of constitutional history differs intrinsically in character. But its goal must be the same. Constitutional liberties, freedom of the person, of association, equality before the law, liberty of expression, precede and are the condition of economic advance and social security, both of which are largely the result of constitutional freedoms and cannot be obtained without them. This is why those who throw away constitutional safeguards—elected governments, freedom to oppose, independent courts—in the name of economic advance are ultimately betraying the common man and depriving him of the chance of social progress and the very things they promise him in their party manifestoes. They are the real class traitors, because in the end they impose themselves as matters on those before whom they parade themselves as liberators.
By and large, Britain became free when Parliaments became supreme and Judges became irremovable. These and the fundamental safeguards embodied in Magna Carta and Habeas Corpus are the real milestones.
But they only laid the foundation. Full trades union recognition was only achieved in 1871, universal education in 1872, manhood suffrage in 1918, universal suffrage in 1925 and social security—which began in 1911 and developed in 1925—was only completed in 1946. In each case the main steps forward were long delayed, and only achieved in the wake of constitutional advance. Even now the implications are not fully worked out. Women have achieved equality only in my lifetime, and the implications on the law of property and marriage and the custody of children are not yet finally agreed. Law only fulfils the needs of the common man—or woman—when the common man—or woman—becomes the ultimate sovereign of the State and then only quite slowly, as the common man—or woman—becomes conscious through experience of social need.
The danger is that the very gradualness of the process, contrasted with the intensity of the need, gives rise to desperate attempts to forestall the ultimate result by violent short cuts. But violence is a bad substitute for law and legal process, for violence is impartial as between right and wrong, good and bad, wise and foolish and destroys in its course the very process by which the common man can advance. It cannot succeed over long periods of time and societies which leave the constitutional path of development invariably end in violent convulsions. It is easier to leave the path than to return to it.
It is easier for a lawyer to see all this. But it is equally necessary for him to turn his mind in on himself and indulge in a small degree of self-criticism. All ancient systems of law begin by regarding themselves as immutable, like the law of the Medes and Persians, which cannot be changed. A moment's reflexion shows that when a legal system becomes rigid it cannot meet the needs of a progressive society. The principles of justice may remain unaltered, but the principles of law designed to satisfy the needs of an agricultural society are insufficient to meet the needs of incipient industrialisation and the laws designed to meet the needs of the early capitalism are wholly insufficient to control the activities of industrial monsters, whether we are talking of the State capitalism we miscall Socialism, or the vast independent industrial complexes we miscall private enterprise, or the huge trade unions which, uncontrolled by law, can become private empires, or organs of intimidation and disruption among the workers.
In the end, man must be ruled by law or relapse into anarchy and oppression. That is why the need of the time is to bring under the control of law the things which law has not yet learned to govern—irresponsible national or supra-national societies, political parties designing to impose a loyalty they cannot command, trade unions holding society or sometimes the members of other unions or their own to ransom, national and international organisations which corrupt the environment, mass media of communication which intrude on privacy or exploit differences.
But the dialectic of history is not to be decided by violent convulsions based on pre-Darwinian conceptions of thesis and antithesis. The dialectic of history must take the form of a continuous and constantly proceeding debate. It is ultimately the gradual encroachment by law into new fields previously dominated by the rule of violence, whether revolutionary violence, or the reactionary violence of repression. It is the constant tension of existing legal system and principles in the light of changing environment and social conditions which provides the hope for the common man. The lawyer must be sensitive to the needs of the people. The lawyer needs to use law as an instrument of change as readily as a brake to adventurism.
In this dialectic I see the Commonwealth, if it so chooses, playing a leading, even a decisive role. We are ourselves the largest association of free men and women in the world. We combine amongst our number a wide variety of different States, nations and languages. We meet on equal terms making use of a common English speech, largely devoted to legal institutions inherited from English constitutional experience. If I am right, lawyers in the Commonwealth have a vital role to play in the evolution of law in the interests of the common man in the twenty first century. But it must be a law which is not merely incorrupt, but available, not merely just but socially relevant if it is to attain its purpose.
We meet in particular to discuss in depth four particular problems : legal aid, and the need to avoid unnecessary delays, the enforcement of human rights and the value and use of the Parliamentary Commissioner, or his equivalent. The first two subjects have to do with the availability of justice, the second with the protection of the weak against the strong, amongst the latter of whom I include, but not exclusively, those who control the legislative and executive machinery of the State.
| 
