Author: David Allen Green

History vs law – the two disciplines compared and contrasted

11th April 2021

On a superficial level, the disciplines of law and history have a good deal in common.

Both subjects deal primarily with words.

The stuff of history (as opposed to prehistory or archaeology) tends to be written documents – though supplemented with the evidence of other materials.

And the stuff of law also tends to be written instruments and, in litigation, the words of witnesses and lawyers – though supplemented by other forms of evidence.

Neither of these two observations are universal, of course – one can have historical accounts and evidence without any words, and one can have law and litigation without words.

But in the main: words are the thing.

Both subjects also deal with evidence.

For history, this is (ahem) self-evident – and for law, the application of laws and legal instruments will always come down to a given fact situation: did [x] breach the contract or did [y] damage that artefact.

And both subjects tend to deal with the construction of narratives derived from assessments of evidence.

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But there lies the crucial difference.

While in putting together a historical account, there are no rules of evidence – if a piece of evidence is relevant then it can and should be used.

In contrast, in law and litigation there are rules of evidence – some evidence may be highly relevant, but it cannot be put before a court because it is inadmissible.

And the questions of the evidence which are asked by a historian will be different to that of a lawyer.

A historian may well ask ‘what happened’ – but a judge may ask only for that evidence that is relevant to the elements of the criminal offence or civil wrong that is being tried.

In concrete terms, a judge will not be interested in all sorts of circumstantial and contextual information about, say, a theft or a trespass but may look only at that evidence which goes to whether there was permission by a property owner.

And this is why legal records such as judgments or transcripts from trials are sometimes unexpectedly complicated sources to interrogate and analyse for a historian.

The questions being asked or the problems being solved by a judge or a lawyer are not that of someone committed to free historical inquiry – but instead have an immediate purpose in respect of the elements of the case that need to be proved or otherwise.

Judgments in particular can be misleading to the student of history – especially those that are framed as showing that, of course, one party had a more compelling case than the other.

The truth is that if a case was indeed that one-sided then the claim or action would normally not have needed to go to trial.

But a good historian knows that every document – including a legal document – has its own context, and that it was created (and survived) for a reason – and that reason is usually not for the personal benefit of a historian.

And in that respect, law and history are both good as ways of promoting critical engagement with words and evidence. 

It is just that they are not the same, despite their superficial similarity.

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The reason for these reflections is my ongoing attempts to understand and explain practical law and policy by means of critical engagement of written sources.

For example: a good deal of the politics of the last five years in the United Kingdom has been shaped by the structure of Article 50, and by the European Union law on the internal market, and by the Good Friday Agreement.

Such texts have led to all sorts of policy and political contortions and distortions, with things being pushed and pulled in one direction or another just to accord with (perceived) legalities.

A lawyer, however, would never have predicted what happened after 2016 just by looking at the dry, black letter text of Article 50 and other European Union provisions, and by the Good Friday Agreement.

There is a limit to how much one would understand about, say, Brexit or Trump by just looking at legal instruments and transcripts.

But there is, I hope, a valid purpose in doing so.

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Prince Philip, the monarchy, and the precariousness of crowns

10th April 2021

One of the more wonderful rabbit-holes on the internet is to start with one Wikipedia page and to then click and click and to see where it takes you.

And so yesterday, as an exercise, I started with the page of Prince Philip, whose death has been announced, and clicked to find out more about his royal and noble ancestors.

Going down the direct father-to-father line by itself takes you back to Elimar I, Count of Oldenburg (1040-1112), via such splendid fellows as these:

 

 


 

According to Wikipedia, at least, these are the direct forefathers of Philip and thereby of princes Charles, William, and George.

Of course, few will be certain that all this is the case as a matter of historical and biological fact – we are going on secondary historical sources at best.

And, of course, you can back click through the mothers instead, or a combination of fathers and mothers, and so on.

But two things become obvious, whichever way you click.

First, some of the noble and royal families of Europe have been around as noble and royal families for a very long time.

And second, those noble and royal families have often adapted and evolved, as has the nature of lordship and kingship – but sometimes those families do not adapt and do not survive, which is also in the nature of lordship and kingship.

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When we get to Philip’s paternal grandfather we have a seventeen-year old second son of a king of Denmark who was somehow elected king of Greece in 1863.

Then Philip’s father – the fourth son of this almost-accidental king of Greece – was, in turn, exiled, court-martialled and then banished from Greece, and was to live in Vichy France and to die in Monaco.

Previous posts on this blog (here and here) have emphasised that for Queen Elizabeth the crown is precarious.

Her grandfather – who was king when she was born – had been crowned king of Great Britain and Ireland, as well as emperor of India and the other dominions.

But as a child and teenager she saw her uncle forced to abdicate, the United Kingdom forced re-invent itself with Irish independence, and the forced conversion of the empire into a commonwealth.

One suspects that the Queen does not take the crown for granted.

The same, one suspects, was also true of Philip.

Within the previous two generations of his own family, crowns had almost-literally come and gone, and he spent his childhood being quickly moved from one place to another.

Elsewhere in Europe, royal reigns and noble privileges and monarchical systems were abruptly coming to an end, and overseas empires were collapsing.

When Elizabeth became Queen in 1952, there was no particular reason to think that the United Kingdom or the crown itself was especially stable or sustainable.

And it is perhaps only with hindsight that it now looks ‘inevitable’ that both the United Kingdom and crown have continued to the current day.

But against the history of the seventy years before 1952, such stability and continuity is unusual in European terms rather than the norm.

And a good part of that is because the slow and quiet reinvention of the crown under Elizabeth and Philip – which was not perfect, but it did mean that the crown and the royal family continued generally to have high public support and largely avoided partisan political controversy.

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The next generation of the royal family, as with the politicians currently with the charge of governing the United Kingdom, do not – and cannot – have this same sense of anxious fragility as the generation of the Queen and her late husband.

And as such, things will be taken for – and as – granted.

For them, turmoil and reversals are the exception – rather than the norm.

But history is often not like that for more than one or two generations in succession.

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‘It was Remainers All Along’ – Brexit and Wandavision

9th April 2021

SPOILERS AHEAD FOR THE TELEVISION SERIES WANDAVISION

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The recent Marvel and Disney-Plus  series Wandavision was a brilliant – almost perfect – piece of television.

In particular it played to the strengths of a story told in periodic instalments, while playing with and exploiting the conventions, techniques and lore of other great television series over seventy years.

But there was part of the story – a misdirection – which makes me think of the current blame games about Brexit.

You may know this misdirection by a merry little song.

That it was ‘Agatha All Along’. 

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At the point of the series we are introduced to this lovely ditty, there is plausibility to it all being down to the rival witch Agatha.

And indeed: for many her theatrical wink is the compelling tell.

It must have been Agatha all along.

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Except, of course, it was not Agatha all along.

For although Agatha had a certain impact on the plot and the characters, the real causes of the predicament as set out in Wandavision are elsewhere.

The problems instead flow from deeper dislocations, and from distortions of reality, and from the limits of magical thinking.

A false – and ultimately flimsy – world is created, but it is unsustainable and so it comes crashing down.

Happy nostalgic images of the 1950s – and of other decades – are ultimately mere make-believe constructs.

Sound familiar?

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The state of Brexit at the moment is such that it is understandable that those who urged the departure of the United Kingdom from the European Union at such speed and with no planning are looking to blame others.

But it is difficult to blame Remainers.

Those blaming Remainers for the shape of Brexit forget that Remainers were not even capable of winning a referendum.

Remainers also had a real opportunity to delay Brexit – or at least have a further referendum – in the the months before the December 2019 general election – and they were not even capable of accomplishing that either.

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At each important point of Brexit – and especially in the crucial few months after the referendum result – the government and its political and media supporters prioritised speed and lack of substance over everything else.

Hardly a thought was employed as to the implications of ‘red lines’.

And once there was an agreement text, the race was on to ‘get Brexit done’ as swiftly as possible, with no proper consideration as to what was being agreed.

As I have averred over at Twitter, the withdrawal agreement and the Northern Irish protocol were the result of five distinct political steps taken by the prime minister Boris Johnson.

https://twitter.com/davidallengreen/status/1380216279232040972

 

The shape and manner of Brexit has many causes – but the overriding ones are specific political decisions made by pro-Brexit governments and parliaments when they had majorities in the house of commons – before June 2017 and after December 2019.

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One cannot sensibly hold that Remainers can be held primarily responsible for anything to do with Brexit – other than complacency before the June 2016 referendum and ineptitude before the December 2019 general election.

Of course, there will be Remainer ‘leaders’ – professors and lords and QCs – who like Agatha may tweet theatrical winks to the camera.

And this may in turn provoke Brexit supporters into singing that it was ‘Remainers all along’.

But the tune does not make it true.

It was Brexiters all along.

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Do ‘Appeals for Calm’ work?

8th April 2021

Another evening of disturbances in Northern Ireland.

And so another round of ‘appeals for calm’.

Of course: such a call is the responsible thing to do – and nothing in this post should be taken to gainsay this.

But do such appeals actually work?

Does this – almost ritualistic – reflexive speech act ever have the intended effect?

And if so, how?

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A cynic may contest that one function of ‘appealing for calm’ is to just give something ‘community leaders’ something to say and do – a gesture as empty and meaningless as ‘thoughts and prayers’.

As such there could almost be a circular definition – a ‘community leader’ is the person who ‘appeals for calm’, and ‘appealing for calm’, is what a ‘community leader’ does – thereby a ‘community leader appealing for calm’ is almost a tautology.

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But such cynicism may be misplaced, for there appear to be many examples of appeals for calm that have had efficacy:

And from my home city of Birmingham:

https://twitter.com/ArghZombies/status/1379923278739992576

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So there are historical instances where the ‘appeal for calm’ seems to have had the intended political and social effect – though of course there may be other features present.

But the ‘appeal for calm’ has another important function.

And this is that it will be significant when the expected speech act is not made by a particular individual.

Here we have an example from just three months ago:

Silence as a signal.

As so often with language and politics, it can be more important when certain words and phrases are not used than when they are.

This is true not only for formal texts such as laws, but also for rhetorical acts in certain situations.

An ‘appeal for calm’ thereby might or might not work – but a failure or obvious refusal to ‘appeal for calm’ can have unwelcome consequences.

Appealing for calm is therefore an important piece of political behaviour – both for what it can achieve and also for what may happen if the appeal is not made.

Words matter, but so does silence.

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Now there are worrying calls for restricting the franchise

7th April 2021

Over at the American site National Review there is a call – in all seriousness – for the franchise to be restricted.

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(‘Don’t give oxygen to such things,’ demand those unaware that ‘not giving oxygen’ to Trumpism and Brexit did nothing to stop the rise of such notions – but this is a law and policy blog and it exists to offer comment on such developments.)

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The contention at the National Review moves from the fact that as there are certain restrictions on voters – for example, felons – to urging that there should be other restrictions.

The entire piece is a practical exercise in political sophistry.

Yet it was commissioned for and published on a well-known website.

It is an attempt to re-open debates that one would have thought were long settled.

It is nothing less than an effort to re-impose Jim Crow type voting restrictions.

It is a dangerous development.

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This law and policy blog is written from a liberal rather than a democratic perspective.

That is say that there are certain things – such as fundamental human rights – that should not be subject to votes.

Even if a majority of people supported the torture of one human being, that torture would still be absolutely wrong.

Such a liberal perspective is alert to and wary of the consequences of populism and demagogues and majoritarianism.

Democracy can be illiberal – and just because a thing has a democratic mandate, it would not make a thing that is fundamentally illiberal right and proper.

But.

When things are subject to democratic oversight and control, then the votes should be equal and the franchise as universal as possible, and there should not be ‘super-voters’ with more democratic power than others.

In the United Kingdom, it actually used to be the case that such privileged voters did exist – those with more of a ‘stake’ in the community would/should have a better chance of a vote – and these were bog-standard arguments in the lead up to the 1832 reform act.

In the United States, such arguments were used to in effect disenfranchise slaves and those descended from slaves.

The anti-democratic arguments now being put forward have not really been put forward so earnestly and with such force since the 1800s.

It is almost as if the ‘march of democracy’ has not only halted but is now retreating – a corrective to the simple notion of linear political progress.

Authoritarianism and anti-democracy, like illiberalism, has never really gone away – it just was not so prominent for a while, at least in the United Kingdom – making liberals and progressives complacent.

Perhaps such anti-democratic views are just a blip – and we will carry on heading towards the right side of history.

Or perhaps there is no natural line of political progression – and every generation has to win the arguments for liberalism and democracy afresh.

The post-2016 anti-democratic, illiberal turn is not over yet.

Brace, brace.

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The great con trick of the politics of criminal law and policy

 6th April 2021

Anyone who knows and cares about the criminal justice system in England and Wales knows that the system is collapsing – and that the word ‘system’ is itself hardly still applicable.

On the face of it, however, this presents a paradox.

For we have a government – with loud and shouty political and media supporters – committed to ‘Law and Order!’.

You would think that a government with such a stated priority would ensure that the substance of policy would have some correspondence to the rhetoric of its politics.

You would be wrong.

For, as this blog has averred elsewhere, there is a distinction – a dislocation – between the politics and the actuality of the criminal justice system.

It is easy for a politician to get claps and cheers with demands for ‘tougher penalties’ and ‘crackdowns on crime’!

Time-poor political reporters will type easily about ‘new laws’ and ‘longer sentences’ and so on.

And voters will nod-along, as they are fooled into thinking some useful thing is being done.

But there is no point having tougher and tougher penalties, and longer and longer sentences, and more and more laws, if the criminal justice system itself is not working.

As the former attorney general Dominic Grieve sets out in this article, the reality is that the system is halting and crashing.

Part of the problem is lack of cash – and for the the reasons Grieve submits.

But another part of the problem is a lack of policy seriousness – an assumption that it ultimately does matter that the criminal justice system comprises a motley of inadequate court buildings, demoralised staff, badly let contracts, ancient IT systems, health and safety horrors, a general lack of safety for everyone involved, and a general drift of the system towards discharging greater re-offending, and not less.

If you invited a demon to devise the worst possible state of affairs in the criminal justice system the current situation is pretty much what you would get.

But: ‘new laws’ and ‘longer sentences’ and ‘tougher penalties’ and ‘crackdowns on crime’!

Slogans that are like loose gear sticks and brakes, not attached to any other part of the vehicle.

Perhaps the only consolation is that such an absolute system failure tells against England and Wales becoming, in practice, an authoritarian state.

But it is not only authoritarian states that need a functioning criminal justice system – modern liberal democracies need working criminal justice systems too.

And so we have a system that should satisfy nobody – other than of course, dishonest purveyors of easy criminal justice solutions: fraudsters of modern politics.

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Parliament is an event and an institution – but not a building

5th April 2021

Restoring the palace of Westminster is proving to be rather expensive.

This news prompts a thought about what is – actually – a parliament.

I happen to be a (non-militant) atheist but I have friends who are Christians who will say that a church is not a building but the people – and that a church can exists just as readily in people’s houses, or in the street, or over an internet zoom call.

A similar approach can be adopted to parliament.

The great historian of the Stuart period Conrad Russell averred that the parliaments of the seventeenth century were an event not an institution.

And this goes to the word itself – a parliament is where people, well parley.

As such, it can take place anywhere – and indeed parliaments have been held away from Westminster.

And parliaments have been held in different parts of Westminster.

It is only by sheer familiarity that we identify a parliament with a particular building.

But there is no constitutional reason why parliament has to sit in Westminster.

For example, take for example the preamble of an act of parliament:

‘Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—’

There is nothing in that introductory text which provides that the lords and the commons have to be sitting and voting in parliament.

(And, if you read the text carefully, you will also see there is nothing that says peers and commons need to have voted separately on the bill.)

So, just like a church, there is nothing which would ultimately stop a parliament meeting just as readily in people’s houses, or in the street, or over an internet zoom call.

It is, however, a measure of the sheer pressure of those dollops of Victorian nostalgia and surviving procedure on our political imagination that it is almost impossible to conceive of a parliament sitting anywhere else than that neo-gothic pile just by the Thames.

And it certainly seems beyond the political imagination of some members of parliament to conceive of their constitutional role and duties being capable of performance and discharge other than in the palace of Westminster.

Four hundred years later, it has to be be conceded that parliament now is an institution rather than just an event – but it still an institution that can manifest in a number of places and in a number of ways.

And not just in the palace of Westminster.

That so few parliamentarians can see that parliament is what one does, rather than where one is, is a cost to the rest of us of more than twelve billion pounds.

It is the cost of our parliamentarians confusing what they do for where they are.

If parliamentarians took parliament seriously, it would not matter where the parliament sat, as long as it could perform its role and discharge its duties.

Our constitution is in great part a creaking Victorian dysfunctional monstrosity – there is no need for parliamentarians to meet in one too.

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Four months after the end of the transition arrangements there is still no clear view of the future relationship between the United Kingdom and the European Union

4th April 2021

The United Kingdom ceased to be a member of the European Union over fourteen months ago, and the transition arrangements came to an end on 31st December 2020.

Regardless of whether you take the fourteen-month or the four-month period as the true duration so far of Brexit, what is not coming into view is the shape of the future relationship.

My own view – which is pretty much a minority view, as it has been since the dawn of Brexit – is that the United Kingdom and European Union would be best having a close association agreement, where the the legal form would be that the United Kingdom was not a member of the European Union but the substance would be that we would continue to be part of the single market and the customs union.

Issues of representation, consultation and mutual influence would be dealt with by dedicated EU+UK institutions – and such consensual and sustainable institutions would be the answer to the charge that the European Union would be imposing law and policy on an independent United Kingdom.

But this middle way position is still not in sight, and many still see the Brexit debate in the leave/remain binary.

As far as I am aware, no front-rank politician has yet set out a positive vision of the institutional, law and policy framework of the relationship of a post-Brexit United Kingdom and the European Union.

The government is still in its toy-room of gesture politics.

The official opposition is silent.

Those in favour of the United Kingdom becoming a member (again) of the European Union are still – wrongly, in my view, for reasons set out here – emphasising rejoining the European Union, rather than making a positive case from scratch, that is a case without depending on our previous membership.

Those remainers who accept Brexit in principle are saying little about how the United Kingdom should engage

Those in favour of Brexit in principle are still, to use the famous phrase, the dog that caught the car.

There is drift instead of where post-Brexit development of medium- to long-term policy should be.

The removal of Trump from the American presidency and the ongoing pandemic are further disorientating features.

In the absence of constructive policy formulation, we have from ministers shouty confrontation and culture wars instead.

But as was averred on the cover of a Fat Boy Slim album, they are already number one, so why should they try harder?

The politics of Brexit and beyond have still not settled.

Maybe they will not settle for some time.

Maybe, even, we are still in the early years of a Boris Johnson government – or that he will be replaced by someone even less suited to building a constructive relationship with the European Union.

And, to be even-handed, there is little sign in Brussels and other European Union capitals that they too are seeking a new model relationship with the United Kingdom.

If anything, there is a defensive-rearguard urge just to keep the current withdrawal and relationship agreements in place, let alone think about the future.

And the impending Scottish elections and the politics of Ireland and Northern Ireland may even mean there be soon no United Kingdom to have a relationship with the European Union.

All up in the air, still.

So four months on, there is almost no indication of what the long-term post-Brexit relationship will be like.

Volatility may be the new norm.

Brace, brace.

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Happy 300th birthday, office of the Prime Minister – or is it?

3rd April 2021

Happy birthday, office of the prime minister.

Well, almost.

The office of the prime minister was not invented in one sudden moment.

The term ‘prime minister’ came to be used generally over time to describe the main minster of the crown, and who was answerable to parliament.

For a long time, the office of prime minister was invisible to our constitutional law.

The first time it was used in a formal instrument was, we are told, when Benjamin Disraeli signed the treaty of Berlin in 1878.

Even in the twentieth century it hardly left a trace on the statute book.

And this gives us an insight in to the strengths and weaknesses of the position.

In constitutional theory, the power of a prime minister derives – ahem, primarily – from two sources.

First, the prime minister has powers derived from the royal prerogative – the fiction being that the prime minister exercises those powers on behalf of the crown.

Second, the prime minister has powers derived from commanding a majority in the house of commons – and thereby control over finance legislation.

The prime minister’s power rests thereby on two constitutional stools.

What the prime minister does not have – at least not formally – is his or her own explicit constitutional centre of gravity.

Almost everything a prime minister can and cannot do ultimately comes from, in theory, either the crown or parliament.

This, in turn, means that the office is difficult to ‘reform’ – for as there are almost no legal instruments that set out the powers of the prime minister, there is no text to amend or replace.

It would be like trying to net a constitutional ghost.

It also means that the office can be as powerful and as weak as personalties and circumstances allow – you would not be able to tell just from constitutional law alone why certain prime ministers are strong or otherwise, and how certain prime ministers lose power.

For explanations for why, for example, Margaret Thatcher and Tony Blair both left office despite winning three general elections each you will have to look at books about politics and not about constitutional law.

And so what we are celebrating is not so much three hundred years of an office but a lack of a defined office, but one at the centre of practical political power.

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Beware the excuse of ‘the king’s evil counsellors’

2nd April 2021

Every so often with Boris Johnson as prime minister there will be, in effect, the excuse of ‘the king’s evil counsellors’.

This useful excuse means that the prime minister is not really culpable for his decisions, but somebody else on whom he relied.

For example: it may be in the form of ‘Boris takes control‘ news report – which, of course, suggests that those who hitherto had responsibility did so without the prime minister’s support or direction.

Or: it may be in the form of the Prime Minister ‘distancing himself’ from a report or a decision issued by Downing Street. 

In any case it is a form of plausible deniability – that is is one of the prime minister’s advisors or ministers to blame, and not the prime minister.

Johnson is especially adept at this evasion.

It means that somebody else is always to blame – and he can shake his head and affect to be innocent – he was merely advised badly.

That his ‘evil counsellors’ were at fault, but not him.

Beware.