HUMAN RIGHTS AND THE CRITIQUE OF THE
COMMON LAW
David Campbell*
HUMAN RIGHTS AND THE END OF EMPIRE, by A.W. Brian Simpson.
Oxford: Oxford University Press 2001. Pp. xiv, 1161.
£60 (hardcover).
For forms of Government let fools contest;
Whate’er is best administer’d is best.
Pope, Essay on Man, III, 303-4
INTRODUCTION
The plausibility of many criticisms of the common law is
undermined by the impression they give that their author’s
understanding of that law is limited. Some of those criticisms are of
interest nevertheless, such as that of Weber, for whom England’s
commercial success, which was the most important fact his universal
history of rationalisation had to explain, was a puzzle. Weber stressed
the role of the law in facilitating rational economic action, but the
common law seemed to defy the emphasis on formal rationality central
to his views.1 This “England problem” raises the difficulty that Weber’s
views on either or both rationalisation or mercantile law must be wrong.
Of course, we learn a great deal from the difficulties of one such as
Weber, and if it is now amusing rather than terrifying to think of
bureaucracy as the institutionalisation of ineluctable efficiency, it is in
considerable part through reflection upon Weber’s concept of
rationalisation that we have advanced our understanding of the
* Professor, Department of Law, University of Durham, U.K. I should like to thank Jim
Allan, Kevin Dowd, Peter Goodrich, Urfan Khaliq, Christopher McNall, Jonathan Morgan, David
Nelken, Professor Brian Simpson, Phil Thomas, and James Young for their comments. A paper
based on this review was read to the Benjamin N. Cardozo School of Law in September 2004,
and I am also grateful to the Law School for its hospitality and for comments made at that
reading.
1 MAX WEBER, ECONOMY AND SOCIETY 814 (1978) (“[I]t may indeed be said that England
achieved capitalistic supremacy among the nations not because but rather in spite of its judicial
system.”).
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transaction costs of hierarchical order.
Though Professor Brian Simpson’s attitude to the common law is
perhaps best described as not bothering to rise to sustained criticism of a
“system” he holds in low regard, the last thing one could say is that this
is because he fails to understand that law. Simpson is an outstanding
historian of the common law whose ability to express its dynamic in a
wide range of areas has often allowed him to guide important
substantive developments.2 Nevertheless, in 1973 he concluded a paper
on The Common Law and Legal Theory by saying:
We must [recognise] what common sense suggests, which is that the
common law is more like a muddle than a system, and that it would
be difficult to conceive of a less systematic body of law. The
systematisation of the common law . . . is surely a programme, or an
ideal, and not a description of the status quo . . . . It is the ideal of an
expositor of the law, grappling with the untidy shambles of the law
reports, the product of the common law mind which is repelled by
brevity, lucidity and system, and it is no accident that its attraction as
a model grows as the reality departs further and further from it. It is,
I suspect, a rather futile ideal[. To] portray the common law as
actually conforming to this ideal is to confuse the aspirations of those
who are attempting to arrest the collapse of a degenerate
system . . . with the reality.3
After some uncharacteristic early writings,4 and though his historical
writings constitute an exception in a way I will explain, Simpson has
maintained this view, thereby producing one of the most interesting and
entertaining bodies of work on the common law whilst simultaneously
holding it in low esteem. Simpson’s own puzzlement about the
common law is not understanding it but understanding its continued
existence in the face of what he regards as its egregious shortcomings.5
This peculiar combination of unusual erudition about and facility
with the common law on the one hand, and contempt for it on the other,
lies at the heart of Human Rights and the End of Empire, in which
Simpson tries to give the common law another drubbing in the course of
examining the United Kingdom’s (hereinafter U.K.) role in establishing
the European Convention of Human Rights (hereinafter “Convention”).
Simpson is not, of course, the first to examine this history, and he
particularly acknowledges (p. vii) the earlier work of Lord Lester6 and
2 For example, A.W.B. SIMPSON, A HISTORY OF THE COMMON LAW OF CONTRACT (1975),
particularly its section on consideration, exercised great influence on Atiyah. See P.S. ATIYAH,
THE RISE AND FALL OF FREEDOM OF CONTRACT viii (1979). See also the references to Simpson
in Atiyah’s index.
3 A.W.B. SIMPSON, The Common Law and Legal Theory, in LEGAL THEORY AND LEGAL
HISTORY 359, 381-82 (1987) [hereinafter LTLH].
4 Simpson, infra notes 73, 77.
5 A.W.B. Simpson, The Survival of the Common Law System, in LTLH, supra note 3, at 383.
6 Anthony Lester, Fundamental Rights: The United Kingdom Isolated?, 1984 PUB. L. 46
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the late Dr. Geoffrey Marston.7 The moral which Lord Lester feels
should be drawn from this history is spelled out in a criticism of the
long-suffering Dicey:8 “Pace Dicey, Article 5 of the Convention,
guaranteeing liberty in terms of positive principle, is for practical
purposes worth a hundred Habeas Corpus Acts.”9 The tone of
Simpson’s book is like this: it concludes by welcoming the possibility
that the passage of the Human Rights Act 1998, which largely
incorporates the Convention into the body of English law, carries to a
further stage the Convention’s displacement of the common law in the
U.K. (pp. 7, 1101). However, the substance of the book, I will argue,
contradicts this tone, for the account which Simpson gives of the
performance of the common law under extreme pressure is broadly
creditable, and that it is so surely calls into question both Simpson’s
scathing theoretical attitude to that law, and the assumption that the new
law of human rights will be practically superior to the common law it is
[hereinafter Lester, Fundamental Rights]; Lord Lester of Herne Hill Q.C., U.K. Acceptance of the
Strasbourg Jurisdiction: What Really went on in Whitehall in 1965, 1998 PUB. L. 237.
7 Geoffrey Marston, The United Kingdom’s Part in the Preparation of the European
Convention on Human Rights 1950, 42 INT’L & COMP. L.Q. 796 (1993).
8 A.V. Dicey held the Vinerian Chair (founded in 1758, it is the oldest professorship of
English law in the world) at Oxford between 1882-1909. He revived the prestige of that Chair,
which had fallen to a low point in the more than a century since Blackstone relinquished it, by,
apart from other outstanding achievements, giving the study of English constitutional law its
modern shape based on the doctrine of sovereignty or supremacy of Parliament. This shape is
described in A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION
(10th ed. 1959) (1885), undoubtedly the most influential modern book on English constitutional
law, which has only lost its grip on the subject in the last twenty-five years or so, since the
consequences of the UK’s ratification of the Convention and, more particularly, its membership
of what is now the European Union, have become more clear.
There is a brief note on Dicey in BIOGRAPHICAL DICTIONARY OF THE COMMON LAW
(A.W.B. Simpson ed., 1984). There are two full-length studies of Dicey’s life and work,
RICHARD A. COSGROVE, THE RULE OF LAW: ALBERT VENN DICEY, VICTORIAN JURIST (1980)
and TROWBRIDGE H. FORD, ALBERT VENN DICEY: THE MAN AND HIS TIMES (1985), both of
which have substantial bibliographies. E.C.S. Wade’s Introduction to A.V. DICEY,
INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION (10th ed. 1959) is a work of
significance in itself, summing up the importance of the book at the apogee of its influence. After
a long period in which caricature accounts of Dicey became widespread as criticism of
sovereignty of Parliament became common currency in the study and teaching of English
constitutional law, there currently is something of a revival in the appreciation of Dicey in the
constitutional literature, to which this review hopes to make a contribution. Amongst this
literature, Rivka Weill, Dicey Was Not Diceyan, 62 CAMBRIDGE L.J. 474 and Rivka Weill, We
the British People, 2004 PUB. L. 380 deserve particular mention.
9 Lester, Fundamental Rights, supra note 6, at 69. This is, of course, a flat reversal of the
argument in DICEY, supra note 8, at 199. In one of the cases Lord Lester discusses, there was an
effective derogation because the repressive measure complained of was justified by a state of
emergency. See Ireland v. United Kingdom, 2 Eur. Ct. H.R. 25 (1978). In the other, the subject
of the application, a sporadically dangerous mental patient, had died before judgment was given
and a change of procedure meant that persons in a similar situation could continue to be detained.
See X v. United Kingdom, 4 Eur. Ct. H.R. 188 (1982). Dicey’s repose is not, one feels, too
disturbed by cases and arguments of this sort, the reference to which makes it hard to understand
what Lord Lester means by “practical purposes.”
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to replace.
I. THE COMMON LAW, THE CONVENTION, AND BRITISH IMPERIALISM
Simpson’s book is huge, and within its almost 1,200 pages two
stories are told, each of which would itself have filled a long book.10
The first story is of the development of the international protection of
human rights. An overview is given of what was done prior to 1939
(ch. 3), but the final stages of the Second World War and the post-war
period during which the Convention was conceived, agreed, and first
applied is examined in great detail (n.b. chs. 4-5, 7-16). Simpson’s cutoff point is 1966 (p. v), when the Convention jurisprudence moved to a
more developed stage as the U.K. recognised the jurisdiction of the
European Court of Human Rights and allowed individual petition
(previously a signatory state could be sued only by another state, not by
an individual person). The second story is an examination in similar
detail of the difficulties the Convention caused the U.K. because it was
difficult to square it with the repressive and sometimes extremely
violent measures being taken to maintain order in the colonies11 during
decolonisation (n.b. chs. 6, 16-20). The paradox emphasised by telling
these stories together is that, though the U.K. was the prime diplomatic
force behind the Convention, it was the first country to fall foul of it.
These two stories are preceded (chs. 1-2) by a relatively brief
outline of the initially domestic development of the emergency
measures later used in the colonies; and by a criticism of the common
law’s animus towards entrenched rights focusing on the doctrine of
Parliamentary sovereignty, which Simpson is hardly alone in believing
has to be got rid of if one is to entrench human rights and use
international mechanisms to protect them.
Despite being written by one of the most enjoyable prose stylists in
legal scholarship, this book cannot, and no doubt was never meant to be,
read straight through.12 One reason for this is that it reproduces (parts
of) an immense number of primary documents. I imagine that no
historian of the Convention or decolonisation will be thought competent
if he has not read this book. Indeed, he would be unwise to fail to do so
for it reproduces a lot of the material he would have had to dig up for
10 Professor Conor Gearty distinguishes three stories in his review, Book Review, 65 MOD. L.
REV. 481, 482 (2002).
11 By no means all of the territories discussed were “colonies” in any strict legal sense, and it
would be more correct to follow the Convention’s usage of “dependencies” to include a range of
different statuses. As one would expect, British constitutional law drew few clear lines between
these statuses (pp. 278-80), and this sometimes makes it hard for Simpson even to say how many
colonies there were (e.g., p. 1100).
12 Gearty, supra note 10, at 482.
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HUMAN RIGHTS AND COMMON LAW
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himself anyway. Nevertheless, this material is difficult to digest and is
of only limited interest to the lawyer rather than the historian.13 The
reader who is mainly interested in human rights and constitutional
jurisprudence may do better initially to consult certain articles in which
Simpson states his central arguments much more economically.14
Another reason the book is so long is the convoluted nature of the
stories told. Simpson gives the fullest account of the twists and turns by
which the Convention was agreed and the early European Commission
jurisprudence took shape.15 The related United Nations (hereinafter
U.N.) diplomacy that produced “the International Bill of Rights” is
covered (chs. 9-11),16 but in the period that Simpson covers this had led
only to the Universal Declaration of Human Rights in 1948 and to
British disbelief in the possibility of achieving anything further of value.
The U.K. sought the Convention for diplomatic reasons: to underline
commitment to freedom after the defeat of fascism; to respond to the
threat of communism; and to show that it had a contribution to make to
the restructuring of Europe, especially through the creation of the
Council of Europe (chs. 11-2).17 The colonial embarrassments, the
13 I do not know what historians think professionally decent in regard of length, but I do note
that the recent publication of the third volume of Robert Caro’s biography of Lyndon Johnson
took what Caro has written so far to over 2,500 pages; yet he has only reached 1960, i.e., he has
yet to deal with Johnson’s Vice-Presidency and Presidency! See 1-3 ROBERT A. CARO, THE
YEARS OF LYNDON JOHNSON (1982, 1990, 2002).
14 On the agreement of the Convention see A.W.B. Simpson, Britain and the European
Convention, 34 CORNELL INT’L L.J. 523 (2001). On the colonies, see A.W.B. Simpson, Round
Up the Usual Suspects: The Legacy of British Colonialism and the European Convention on
Human Rights, 41 LOY. L. REV. 629 (1996) [herinafter Simpson, Usual Suspects]. The colonial
moral is spelt out with reference to Cyprus alone in A.W.B. Simpson, The Exile of Archbishop
Makarios III, 4 EUR. HUM. RTS. L. REV. 391 (1996) [hereinafter Simpson, Makarios]. This
material appears in the book under review. Brian Simpson, The Devlin Commission (1959):
Colonialism, Emergencies, and the Rule of Law, 22 OXFORD J. LEGAL STUD. 17 (2002)
[hereinafter Simpson, Devlin Commission] discusses the colonial problem with reference to
Nyasaland (Malawi) using material discussed only briefly in the book under review (pp. 1063-64,
1079-80) (the entries for “Devlin Commission Report” and “Nyasaland” in the index of this book
seem wrong).
15 As originally established, the “observance of engagements” under the Convention was
primarily the responsibility of a political body, the European Commission on Human Rights,
which either decided matters itself, referred them to another political body, the Committee of
Ministers, or to the judicial body, the European Court of Human Rights, to which the
Commission therefore acted as a strong filter. Acceptance of applications by individuals as
opposed to by states was optional. The principal development in the “system of protection”
established under the Convention has been the creation of a permanent Court which now decides
the admissibility and merits of all applications, including the direct applications by individuals
which now are general. The role of the Committee of Ministers is now confined to securing
enforcement of Court decisions. For an assessment of the work of the Commission, see H.G.
SCHERMERS, THE INFLUENCE OF THE EUROPEAN COMMISSION OF HUMAN RIGHTS (1992).
16 See A.W.B. Simpson, Britain and the Genocide Convention, 2002 BRIT. Y.B. INT’L L. 5
[hereinafter Simpson, Genocide Convention]; A.W.B. Simpson, Hersch Lauterpacht and the
Genesis of the Age of Human Rights, 120 L.Q. REV. 49 (2004) [hereinafter Simpson,
Lauterpacht].
17 Simpson has sensitively described the atmosphere of the time in Brian Simpson, The
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Strasbourg jurisprudence,18 and the U.K. Human Rights Act 1998 were
not anticipated, and, as the implications unravelled, there was grave
disquiet about the fact “that we have got ourselves committed to this
wretched Covenant and can’t get out of it now” (p. 11). Had these
implications been fully understood at the outset, “it is most improbable
that the convention would ever have been ratified” (p. 4).
After ratification in 1951, the U.K. in 1953 extended the
Convention to most of its colonies (ch. 16), and the consequences were
dramatic. Simpson details the U.K.’s extensive efforts to shape what
was being done in the colonies in such a way as to avoid anticipated
Convention criticisms, and the tactics used to stall such criticisms when
they did materialise, up to and including derogation from the
Convention for specific colonies (ch. 17). These tactics were not
completely successful. The first (interstate) complaint was brought by
Greece against the U.K. in respect of Cyprus (chs. 18-19). The first
individual application was brought (after Simpson’s period) against the
Irish Republic in respect of measures taken there against the Irish
Republican Army. that were similar to those which the U.K. was
employing in Northern Ireland (pp. 1082, 1086-88).
During Simpson’s period, much British opinion, especially that of
various colonial Governors and the Colonial Office, was raised to such
pitches of fury by Commission inquiries that denouncing the
Convention was considered (pp. 980-87). U.K. officials had initially
thought the Convention would cause trouble only for others, and the
U.K.’s conduct in the colonies punctured this belief (ch. 6). Peaceful
life in the colonies was always open to criticism for failing to conform
to the standards of democracy, equality, etc., which the very success of
European civilisation had made general. But during Simpson’s period,
the situation was gravely exacerbated and was clearly brought within
the Convention’s then scope because the dismantling of the Empire was
attended by serious insurrections; and, as Simpson observes, “respecting
human rights and crushing colonial insurrections are activities which it
is not easy to reconcile” (p. 322).
As much of what I will say is critical of Simpson, let me stress that
his telling of these two stories in this detail is an outstanding work of
scholarship which, it is to be hoped, will have a great impact on our
thinking about human rights jurisprudence. It is to the nature of this
impact that I now turn.
European Convention Fifty Years On, Lecture to the Centre for the Study of Human Rights,
London School of Economics (October 16, 2003), available at http://www.lse.ac.uk/Depts/
humanrights/Documents/European_Convention_Fifty_Years_On.doc. I am grateful to Professor
Simpson for providing me with a copy of this lecture.
18 As the institutions established under the Conventions were based in Strasbourg, the
Convention jurisprudence is often referred to as “the Strasbourg jurisprudence.”
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II. WHAT WOULD YOU DO?
How devastating for the common law one finds the implications of
the colonial authorities’ clashes with the Convention depends on how
much one thinks the common law, or indeed the law, should do in such
a situation. Can preventing coercion of the sort which was used in the
British Empire be a “law job,” even in an ideal sense?19 It must be the
case that Simpson, who is an active advocate of the Strasbourg
jurisprudence and who has been a consultant on a number of
Convention cases against the U.K.,20 to some extent believes this, or in
what other sense could it be, as he claims on the first page of his book,
“surely” right (p. 1) to conclude the Convention?21 Nevertheless, it is
not easy to find evidence for this belief in this huge book.
It is impossible for an Englishman such as Simpson (perhaps for
anyone truly fluent in English) to write about the British Empire without
using phrases from the poetry of Rudyard Kipling, and Simpson’s
description of “the burdens of empire” (ch. 6) is “an echo of the concept
of the white man’s burden” (p. 293) derived from Kipling’s The White
Man’s Burden,22 a poem which, Orwell tells us, “instantly calls up a real
problem, even if one feels that it ought to be altered to ‘black man’s
burden.’”23 Though, if my reading is not faulty, he does not do so in the
book under review, it was inevitable that Simpson would somewhere in
his work make use of that line from Kipling’s poem Recessional which
refers to “lesser breeds without the law.”24 Simpson adds to a long line
19 K.N. Llewellyn, My Philosophy of Law, in MY PHILOSOPHY OF LAW 181, 187-88 (A.
Kocourek ed., 1941).
20 Katherine O’Donovan & Gerry R. Rubin, Introduction to HUMAN RIGHTS AND LEGAL
HISTORY 1, 7-8 (Katherine O’Donovan & Gerry R. Rubin eds., 2000) [hereinafter HUMAN
RIGHTS & HISTORY].
21 See also Simpson, supra note 17 (“[T]he European Convention has been a pretty good
success story.”).
22 Significantly enough for the concerns of this review, this poem, first published in an
American magazine in 1899 with the subtitle The United States and the Philippine Islands, was a
call for the U.S. to recognise duties in the Philippines rather of the nature of those which are
causing such trouble in respect of Iraq.
23 George Orwell, Rudyard Kipling, in 13 COMPLETE WORKS 150, 157 (1998).
24 The two relevant stanzas are:
If, drunk with sight of power, we loose
Wild tongues that have not Thee in awe,
Such boastings as the Gentiles use,
Or lesser breeds without the law—
Lord of Hosts, be with us yet,
Lest we forget-lest we forget.
For heathen heart that puts her trust
In reeking tube and iron shard,
All valiant dust that builds on dust,
And guarding, calls not Thee to guard,
For frantic boast and foolish word—
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of criticism of what indeed is the most notorious line Kipling wrote by
reading this as a “jingoistically” complacent argument that the extension
of the rule of law to those breeds—taken to be the native inhabitants of
the colonies—was a strong justification for Empire.25 This argument is
not only now often thought to have no force but is turned on its head:
that the common law did not prevent the repression involved in having
an empire is a reason why the U.K. needs entrenched human rights.
One of the occasions on which Simpson uses this line is to sum up
accurately an argument of this sort by Mr. Richard Wilmot-Smith
Q.C.,26 in the course of which we are told:
On the map of the world a comforting proportion used to be coloured
pink and this was . . . a source of pride. There was no suggestion
then that the colonisation of India ought truly to have been a source
of shame. Now most of us accept that the British Empire was built at
the cost of the lives and liberties of people we had no business
ruling.27
Let us not dispute that the prospect Mr. Wilmot-Smith enjoys from
Charterhouse and 39 Essex Street28 allows him to know what “most of
us” now accept. Even so, he goes too far when he presumes to tell our
ancestors who ran the Empire that they should have been ashamed of
doing what they had no business doing. No doubt sub specie
aeternitatis Mr. Wilmot-Smith is right, though one is a little surprised to
find even a Q.C. claiming this perfection of judgement. But in terms of
a judgement one can sensibly pass on our ancestors, Mr. Wilmot-Smith
is talking nonsense. With the misleading exceptions of the founding
American states and Russia, which largely exercised their sometimes
Thy mercy on Thy People Lord!
Id. at 151.
25 A.W.B. Simpson, The Ideal of the Rule of Law: Regina v. Keyn (1876) [hereinafter
Simpson, Ideal Rule of Law], in LEADING CASES IN THE COMMON LAW 227, 228 (1995)
[hereinafter LCCL]; A.W.B. Simpson, Book Review, 2 EUR. HUM. RTS. L. REV. 204, 206 (1997)
(reviewing HUMAN RIGHTS IN THE UNITED KINGDOM (Richard Gordon & Richard Wilmot-Smith
eds., 1996)) [hereinafter Simpson, Book Review]; Simpson, Devlin Commission, supra note 14, at
35; see also Simpson, Genocide Convention, supra note 16, at 6.
26 A Q.C., or Queen’s Counsel (King’s Counsel when the Sovereign is male) is a senior
member of the Bar who has been granted this title. Though merely honorific in itself, there is no
doubt that this title conveys considerable prestige and has an impact on the Q.C.’s ability to
charge fees. The opaque, conventionally established procedure by which Q.C.s are appointed has
long been subject to considerable criticism which, it seems, now may lead to the abolition of the
title.
27 Richard Wilmot-Smith, Incorporation and the Loss of Illusions, in HUMAN RIGHTS IN THE
UNITED KINGDOM, supra note 25, at 91.
28 Charterhouse is one of England’s most exclusive public (i.e., private) schools. Mr.
Wilmot-Smith completed his education at the University of North Carolina with the support of an
avowedly elitist scholarship then available only to the pupils of selected English public schools,
of which Charterhouse was one. Called to the Bar by Middle Temple, he now practises at 39
Essex Street, one of the most prestigious Barristers’ Chambers in London and therefore in
England and Wales.
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“genocidal” “imperialism” on contiguous areas, every nation capable of
doing so sought empire in modern times. That the most important of
these were European nations is in the first instance a technological and
logistical matter. The military weakness of the non-European countries
prevented them from giving effect to their own territorial ambitions
when these conflicted with the ambitions of the European nations.
Amongst the European nations, the British were by no means
distinguished by their imperialism. They were distinguished by the
extent of their success.
This success was in part the product of the way the British Empire
was established, which, whilst obviously based on the power to
conquer, was the almost unconscious consequence of an intention to
secure conditions at the “periphery” of the Empire which would allow
trade. This was mainly a matter of securing peacefulness in the subject
territories and partly of regulating the conduct of entrepreneurs. Whilst
of its nature the Empire had core characteristics which now are rightly
found disgusting, forcible repression and outright exploitation were not
its normal state, and its ideology predominantly was one of
responsibility towards, and improvement of, the colonial peoples.29 As
it happens, historical study of the British Empire is presently
undergoing something of a revival, stimulated by the fact that, as the
former colonies have not experienced the marvellous improvement one
would expect after being freed from something unrelievedly bad, the
questions have to arise whether imperialism was bad in quite the way
hitherto accepted and whether the independence movements’
conceptions of decolonisation were entirely wise.30 This scholarship
merely confirms that the stability of the British Empire must have rested
in large part on the political fact of its legitimacy, and that it was only
for this reason that “[t]hroughout its vast extent, nearly a quarter of the
Earth, there were fewer armed men than would have been found
necessary by a minor Balkan state.”31
29 For an example bearing on Simpson’s period, see E. BARKER, THE IDEAS AND IDEALS OF
THE BRITISH EMPIRE (1941) and E. Barker, The Ideals of the Commonwealth, 4 PARLIAMENTARY
AFF. 12 (1950-51); see also JULIA STAPLETON, ENGLISHNESS AND THE STUDY OF POLITICS ch. 8
(1994).
30 A.G. HOPKINS, THE FUTURE OF THE IMPERIAL PAST (1997). Hopkins is a co-author of one
of the leading works of the recent scholarship P.J. CAIN AND A.G. HOPKINS, BRITISH
IMPERIALISM 1688-2000 (2d ed. 2002). When writing about the vexed topics of imperialism and
decolonisation, there are few points on which one can claim to state an undisputed position, and I
do not do so, nor do I attempt to survey the literature, which is impossible here. If any reader is
sufficiently interested in my opinion of decolonisation, they will find what I would have written
had I the ability to do so in JOHN PLAMENATZ, ON ALIEN RULE AND SELF-GOVERNMENT (1960).
This book is so balanced, wise, and free of cant that, appearing in 1960, it was inevitable that it
would fall stillborn from the press. See Brian Barry, Self-government Revisited, in DEMOCRACY,
POWER AND JUSTICE 156, 156-57 (1989).
31 George Orwell, The Lion and the Unicorn: Socialism and the English Genius, in 12
COMPLETE WORKS 391, 403 (1998).
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To make criticisms of the treatment of what would now be called
“human rights” in the British Empire which may have relevance to
policy formulation, one must eschew moralising from present day
perspectives or, even worse, from politically correct improvements
upon these. One must appreciate the realistic alternatives available at
the time, of which not having an empire at all was not one; nor was
having omnicognisance and omnicompetence in the handling of
dangerous situations.32 And if one does examine the law of the Empire
in this fair way, as Simpson certainly does, the picture that emerges is of
a mixture of the “sometimes disreputable and occasionally appalling”
(p. 293) and the decent in which the common law worked defensibly
well; one of the paradigm cases of the paradox that, as Simmonds notes,
“Law can reproduce hierarchy and oppression yet still be valuable and
important.”33 The worst instances of killing by public authorities
outside of war, such as the massacres under Governor Eyre at Morant
Bay, Jamaica in 1865 (p. 61)34 and under General Dyer at Amritsar,
India in 1919 (pp. 64-66), fall outside Simpson’s period. Nevertheless,
there are horrors enough for him to recount (pp. 830-38), such as the
suppression of the Mau Mau in what is now Kenya, which clearly
upsets him (pp. 834-35, 879-80, 1086-88).35 But even in these bleak
cases, and more obviously in less fraught conditions, Simpson shows
that there was a concern on the part of the British to keep within decent
bounds and the law. The overwhelming impression is not of
lawlessness but of an effort to keep lawful control even of the military
which, of course, was prone to forget such control when caught up in
the pursuit of military objectives. Summing up the lesson of his book,
Simpson picks an example of a criticism of the Empire somewhat like
Wilmot-Smith’s by Heyns36 and says:
Wild and ridiculous assertions of this character contribute little to
understanding. Conditions in British colonial territories varied
widely . . . . [I]n normal times those who governed and administered
the overseas dependencies, and they were few in number, were
easygoing and tolerant. Many were genuinely committed to [the rule
of law]37 . . . and in respecting local opinion, and if colonial rule was
32 With charming self-deprecation, Simpson refers (p. 895 n.63) to some of his own
experience of such situations.
33 N.E. Simmonds, Bluntness and Bricolage, in JURISPRUDENCE: CAMBRIDGE ESSAYS 1, 27
(Hyman Gross & Ross Harrison eds., 1992). See also the discussion of E.P. Thompson
accompanying infra note 66.
34 See also Simpson, Ideal Rule of Law, supra note 25, at 228-29.
35 See also Simpson, Usual Suspects, supra note 14, at 665-68; Simpson, Devlin Commission,
supra note 14, at 19-24.
36 Christof Heyns, African Human Rights Law and the European Convention, 11 S. AFR. J.
HUM. RTS. 252, 254 (1995).
37 Simpson here refers to a speech by Lord Irwin (later Lord Halifax), a successful Viceroy of
India between 1926-31, which was quoted earlier (p. 23).
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autocratic it was also to a considerable degree paternalistic, and of
necessity involved much in the way of implicit negotiation. . . . The
principal trouble, so far as the protection of individual rights was
concerned, was that times in the colonies were sometimes not
normal, either because of inter-tribal fighting . . . or because of
violent conflict between ethnic or religious communities . . . or
because political activity and nationalism became channelled into
riots or more general insurrections, guerrilla warfare, or
insurrectionary movements . . . . In these circumstances the
governments involved, rather more readily than would have been the
case at home, had recourse to emergency powers, that is, to the use
of repressive mechanisms of one kind or another, authorized by law
[which] commonly violated established conceptions of individual
civil or human rights, and there might be situations, arguably for
example in Kenya in the Mau Mau period, when a rational case
could be made for applying the sort of language used by Heyns to
describe what went on. One reason for the willingness the to rely on
emergency power was fear of loss of control, which was related to
the fact that the military and police power immediately available in
dependencies was commonly very limited. Unless trouble was
nipped in the bud it could all get out of hand. The very reliance on
special powers is perhaps the clearest indication of the normally
liberal character of the legal regimes of the empire and colonies, for
if these regimes had been of an illiberal character special emergency
powers would of course have not been necessary. (pp. 52-53)
Even quotation at this length will not convey the shock which
Simpson’s book will give those intending to use the experience of the
British Empire to argue for human rights because it shows that the
common law’s performance was creditable.38 Simpson’s subsequent
article on the Devlin Commission39 draws the threads together neatly by
linking Devlin’s officially sanctioned attack on the Nyasaland “police
state,” which Simpson calls a “notable expression of the ideals of
judicial independence and commitment to the rule of law,” with the
attempt “by another noted common lawyer,” James Fitzjames Stephen,
to bring Eyre40 to trial after the Morant Bay massacre.41 It will hardly
38 Contra Peter Fitzpatrick, Tears of the Law: Colonial Resistance and Legal Determination,
in HUMAN RIGHTS & HISTORY, supra note 20, at 126; see also Peter Fitzpatrick, Terminal
Legality: Imperialism and the (De)composition of Law, in LAW, HISTORY, COLONIALISM 9
(Diane Kirkby & Catharine Coleborne eds., 2001).
39 In 1959, a Commission under the chairmanship of a High Court judge, Sir Patrick (later
Lord) Devlin, reported on the handling of guerrilla insurrection in what was then Nyasaland.
Though Simpson concludes that the Commission’s Report was balanced, with some of the acts of
insurrection being of a barbarity to which it is not easy to give a measured response, the Report
certainly showed instances of grave misconduct by the security forces, and a passage in which
Nyasaland was compared to a “police state” caused a political furor.
40 See supra text accompanying note 34.
41 Simpson, Devlin Commission, supra note 14, at 52; see also the discussion in the book
under review (pp. 1065-70).
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matter to those who maintain that the Empire was just wrong and damn
it for existing, but for those who are more conscious of the difficulties
of government if lawyers, or more respectful of the beliefs of our
ancestors if historians, or more cautious about the correctness of current
beliefs if at all sensible, Simpson’s historical account blows to bits the
simple equation of colonial rule under the common law with repression,
and with it the implicit claim for the obvious superiority of entrenched
human rights.
I suspect that the latter will not have been Simpson’s intention, and
he should be congratulated for picking the period he did, for whilst this
was necessary to allow him to counterpose the common law of Empire
with the Convention, it is in truth a difficult period to use to illustrate
colonial exploitation. During this period, the U.K. was intent on
dismantling the Empire, and the majority of the incidents Simpson
discusses were responses to insurrectionary activity by independence
movements jockeying for position (pp. 317-322, 830-38). A sensible
reaction would have been to cut and run from what had become
generally perceived to be net burdens (p. 1057), and there can be no
doubt that “the cost and difficulty involved in suppressing colonial
insurrections was one of the factors which encouraged British
willingness to decolonise” (p. 835). But the dominant belief in the
British Colonial Office, which Simpson does not doubt was sincerely
held (pp. 294-95), was that to get out before the colonies were capable
of self-government was an unpardonable abnegation of responsibility.
This thinking undoubtedly was tied to the power politics of replacing
the Empire with the Commonwealth as an instrument of British foreign
policy, and of establishing resistance to communism in what were to
become former colonies (p. 830). But nevertheless it was an intendedly
benign policy for which there was ample justification. For there cannot
be any doubt that it would have been an abnegation of responsibility to
cut and run, as the experience both of colonies in which independence
movements markedly forced the pace of decolonisation and of countries
which were subjected to communist rule was to make amply clear.
The most extensive use of emergency powers during Simpson’s
period was in Malaya, where, in the course of resisting an insurrection
by the Chinese inspired communist party, some 5,000 people were
detained, up to 26,000 banished or deported, and up to 650,000
compulsorily resettled, as well as up to 7,000 killed in what was “[i]n
reality . . . a war” (pp. 833-34). But “[t]he successful suppression of the
Malayan insurrection had nothing to do with attempts to retain colonial
power, which was given up in 1957; the aim was to hand over power to
a non-communist regime, in which Malays and others, in addition to
ethnic Chinese, would participate” (p. 834). And as the Chinese
Communist Party was at this time about to embark on the Great Leap
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Forward, which claimed the lives of at least 30 millions, anyone who
can say with confidence that the colonial authorities were wrong is a
fool. As it happened, by 1965, with the exception of the disastrous
(assuming that something significantly different could have been done)
steps taken in India and Palestine,42 “[t]he largest empire ever
established had been almost entirely dismantled, and power
transferred . . . without accompanying widespread disorder” (p. 299).
Simpson’s response to this surprisingly positive picture of the law
of the Empire during decolonisation is unsatisfactory. He, entirely
properly, makes it clear that he is “not concerned . . . to offer any
assessment one way or the other of the benefits or demerits of British
colonialism” (p. 298), but this does not mean that he is able to be
neutral about the episodes he describes. Such neutrality is not available
to him. Simpson’s book is full of evaluations, and it has to be if it is to
be any good as history. We want to know, for example, that during the
Mau Mau uprising “[t]here was extensive misconduct by the security
forces, though on the whole British military forces behaved properly”
(p. 835), otherwise we cannot know what happened in Kenya during
this time. One cannot confine oneself to the facts when, as I have put it
elsewhere,43 the most important facts are values.
But the point is that it is not bad colonial behaviour that causes
Simpson difficulty. It is the fact that his objectivity obliges him to draw
an overall positive picture which makes him uncomfortable. He salves
his conscience with rhetoric. Departing from his professed neutrality,
he often appends some superior remark to a description of a British
policy which he in fact shows is defensible. For instance, in order not
“to abandon responsibilities prematurely” (p. 298), the Colonial Office
attempted to identify certain criteria for assessing when colonies would
be ready for self-government, one of which was the existence of “a
healthy and vigorous people.” Assuming the policy was capable of
being tolerably well applied, what possible objection can there be to it?
Nevertheless, Simpson feels obliged to add in parentheses: “echoes of
the playing fields of Eton” (p. 298).
I could repeat this example many times; all boil down to the typical
left-wing criticism of the line from Kipling’s Recessional, which
evidently is still “good for a snigger.”44 Simpson is unable to write
about the Empire without employing some such strophe, and
unfortunately this is a sign of his reluctance to confront the situation he
42 The irony that colonies gaining independence ipso facto moved out of the Convention’s
reach (pp. 844-45) is, in legal terms, exaggerated in the case of Israel, which has remained in a
state of emergency from the moment its existence was first proclaimed (p. 832).
43 David Campbell, Truth Claims and Value-Freedom in the Treatment of Legitimacy: The
Case of Weber, 13 J.L. & SOC’Y 207, 210 (1986).
44 In full, what Orwell, supra note 23, at 151 says is: “[t]his line is always good for a snigger
in pansy-left circles.”
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depicts. For Simpson shows that there was an important kernel of sense
in the imperialist ethic of responsibility. This kernel, one would say, is
clearly expressed in Recessional, were it not for the fact that it evidently
has not been sufficiently clearly expressed for most readers to see it.
Composed for the occasion of Victoria’s Jubilee, Recessional sounds a
cautionary note about what was felt to be a growing abdication of
responsibility in favour of outright power politics. As Orwell also tells
us,45 and as subsequent criticism confirms, the “lesser breeds without
the law” were not subject colonial peoples but rather the powerful
imperialist nations which acted “lawlessly.” Germany will likely have
been uppermost in Kipling’s mind, but a Britain about to start the Boer
War when peaceful alternatives were available, not merely in hindsight
but to much contemporaneous opinion,46 surely was also in his thoughts.
Far from it being jingoistic in the way it is usually regarded, this line
expresses what Orwell thought the central aspect of Kipling’s attitude to
imperialism, namely responsibility:
Because he identifies himself with the official class [Kipling] does
possess one thing which “enlightened” people seldom or never
possess, and that is a sense of responsibility. The middle-class Left
hate him for this quite as much as for his cruelty and
vulgarity . . . . A humanitarian is always a hypocrite, and Kipling’s
understanding of this is perhaps the central secret of his power to
create telling phrases. It would be difficult to hit off the one-eyed
pacifism of the English in fewer words than in the phrase [from
Tommy], “making mock of uniforms that guard you while you sleep”
[Kipling] sees clearly that men can only be highly civilised while
other men, inevitably less civilised, are there to guard and feed
them.47
Lack of a similar sense of responsibility makes much left-wing
discussion of human rights both hypocritical and irrelevant to the real
issues in theory and practice. Nothing similar to the brave confrontation
with its own irresponsibility that turned “critical” into “left-realist”
criminology48 has happened in left-wing advocacy of human rights, and
a refusal to confront the difficult issues head-on stops Simpson from
explicitly pursuing the implications of his historical account. To do this
he would have to take even a little overt pride in the achievement of the
common law of Empire, but perhaps this would be to ask too much.
However, this criticism cannot be directly levelled at his well-balanced
45
46
Id. at 151-52.
FRANCIS W. HIRST ET AL., LIBERALISM AND EMPIRE (1898); see also BERNARD PORTER,
CRITICS OF EMPIRE: BRITISH RADICAL ATTITUDES TO COLONIALISM IN AFRICA 1895-1914
(1968).
47 Orwell, supra note 23, at 153.
48 Jock Young, The Failure of Criminology: The Need for Radical Realism, in CONFRONTING
CRIME ch. 1 (Roger Matthews & Jock Young eds., 1986).
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HUMAN RIGHTS AND COMMON LAW
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account of that law, which indicates the issues that left-wing legal
criticism of emergency powers must now confront.
III. ANOTHER SKELETON IN THE COMMON LAW’S CLOSET
The divergence between the scathing tone of Simpson’s comments
about the common law with the relatively creditable way it emerges
from his excellent histories of it also emerges from another unedifying
episode which Simpson examined in In the Highest Degree Odious (cf.
pp. 80-82, 86-88).49 During the Second World War, some 2,000 people
whom it was feared might form a “fifth column,” such as British
fascists, were detained without trial under what has become the
notorious Defence Regulation 18B. I have noted that Simpson shows
“systems of emergency powers had been evolved, originally in the
United Kingdom, and had been exported and widely used in the
colonies” (p. 321). But “[b]y the mid-twentieth century emergency
powers had come to be employed only in times of war in the United
Kingdom, Northern Ireland apart” (p. 321). The story of 18B is
Simpson’s main account of the use of these powers at the metropolitan
heart of the Empire rather than at its periphery. It is a depressing story
of the sacrifice of liberty to national emergency which shows the same
deficiencies of the common law’s regulation of emergency powers; the
stupidities and cruelties are all there, though the cruelties are far less
extreme.
But one must be clear why this story is depressing. One reason is,
as Simpson argues, “there was never any real need to lock most
detainees up,”50 and this judgement is not entirely made with the benefit
of hindsight, for there was much criticism of the effectiveness of 18B
(and therefore of the security services) at the time. Another reason is
the rotten conduct of the judges and the legal profession, who “did
virtually nothing for the detainees”51 but instead, “as if to give final
confirmation to the view that there is no limit to the hypocrisy of which
lawyers are capable,”52 maintained that habeas corpus had not been in
effect suspended and that, therefore, as Lord Simon put it, “every
citizen” continued to enjoy the “freedom” “to appeal to the law and the
Courts to protect him from . . . wrong . . . committed by the misuse of
official power.”53 Now, habeas corpus had indeed not been suspended,
but it did not follow that the “freedom” existed, and the virtue of this
49
50
51
52
53
A.W.B. SIMPSON, IN THE HIGHEST DEGREE ODIOUS (1992).
Id. at 411.
Id. at 418.
Id. at 379.
Id.
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excellent book is to show how, under the emergency conditions, both
things could simultaneously be the case, leading to a brilliant account of
the House of Lords’ decision in the leading constitutional case of
Liversidge v. Anderson,54 which only an adept in the common law could
have written.
But what exactly was wrong with the legal profession’s conduct?
In my opinion, it was the hypocrisy that was objectionable, both
because it is objectionable in itself but also because it prevented proper
appraisal of the role the courts might usefully have played.55 By
maintaining the pretence that they were scrutinising Home Office
detention decisions under the existing law when they were merely
rubber-stamping them, the Courts emasculated themselves.56 Churchill
was, by contrast, even prepared to say in a 1943(!) newspaper interview
that the imprisonment of the leader of the British fascists, Oswald
Mosley, for which Churchill acknowledged a personal responsibility,
was, though justified, “a frightful thing to anyone concerned about
English liberties.”57
Of course, all this would not mean very much to those who would
“view executive detention as simply wrong in principle,”58 and in the
recent Festschrift for Professor Simpson, Ms. Nuala Mole, a very active
promoter and practitioner of human rights law, tells us that detention
such as took place under 18B “is now outlawed by Article 5 of the
European Convention.”59 I find this a very implausible legal opinion,60
54
55
56
57
[1942] A.C. 206 (H.L. (E.))
SIMPSON, supra note 49, at 421-22.
On the similar situation of the House of Commons see id. at 414.
Id. at 389. It was Churchill himself who described the operation of 18B as “in the highest
degree odious.”
58 Id. at 413.
59 Nuala Mole, International Law, the Individual, and A.W. Brian Simpson’s Contribution to
the Defence of Human Rights, in HUMAN RIGHTS & HISTORY, supra note 20, 13 at 24.
60 I have left this sentence as I drafted it, long before it became clear that the Government
which brought in the Human Rights Act has decided to prosecute its preposterous “war against
terror” by, amongst other means, use of indefinite detention without trial. See Anti-terrorism,
Crime and Security Act 2001, pt. 4; see also PRIVY COUNSELLOR REVIEW COMMITTEE, ANTITERRORISM, CRIME AND SECURITY ACT 2001 REVIEW: REPORT (H.C. 100 2003-4), available at
http://www.atcsact-review.org.uk/lib/documents/18_12_2003/Report.pdf. Since December 2001,
up to seventeen foreign nationals suspected of terrorist activity who did not wish to be deported to
their countries of origin were detained under pt. 4 powers. The passage of pt. 4 required a
derogation under Article 15 from Article 5(1) of the Convention, which, in a judgment handed
down on 16 December 2004, an expanded, nine-member House of Lords (reversing the Court of
Appeal [2004] Q.B. 335 (C.A.)) declared incompatible with Article 5(1) “insofar as it is
disproportionate”: A and Others v. Secretary of State for the Home Department [2004] U.K.H.L.
56, para. [73]. Such declarations do not automatically strike down the measures complained of
but are a sort of advice to the Government to change its ways, and since the House of Lords'
decision, those in detention have remained there until the Government decided what it is to do.
By permission of the Editor in Chief, I am, at a very late stage of preparation of this paper, able to
add that, on January 26, 2005, the Secretary of State declared that his response to this criticism of
indefinite detention in jail was to propose legislation which will allow him to indefinitely detain
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HUMAN RIGHTS AND COMMON LAW
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though as I fear I am one of those “whose minds sometime appear
unfatigued by long study of the elaborate jurisprudence of the
Strasbourg institutions” (p. 1101) (actually, I am fatigued by brief study
of that jurisprudence), I want to avoid trying to say what the law is and
say what it should be. If the Convention and the Human Rights Act
“outlawed” 18B, they would be preposterous.61 The purpose of 18B
was perfectly justifiable and a judicial review which challenged its very
basis would be bound to fail. This is so even though we now know that
it was, in fact, unjustified. Ms. Mole is a former student of Simpson
who has worked with him on human rights cases62 and assisted with the
book under review (p. vii). Her contribution to Simpson’s Festschrift is
nothing if not an effulgent encomium to his human rights work. But she
is not, alas, the first disciple to fail to maintain the standard set by the
object of veneration, and Simpson himself does not espouse Ms. Mole’s
position. The quality of In the Highest Degree Odious emerges because
Simpson has the good sense to give realistic verdicts on the conduct of
those responsible for 18B, and from this many do not come out too
badly, including Sir John Anderson, the Home Secretary in Liversidge
v. Anderson, himself.63 This, of course, makes Simpson’s excoriating
verdicts, on the security services especially, all the more telling.
As with his discussion of the colonies, the detail of Simpson’s
argument about 18B gives a much more nuanced and reasonable
impression of the working of the common law than (as we shall see) his
jurisprudential writings or his commitment to human rights would lead
one to believe would be the case. Whilst this must be a disappointment
to Ms. Mole, it is what is best in Simpson’s work. I would say this can
be shown in almost all of Simpson’s historical work, though I cannot go
through it here to prove this. Perhaps the best brief corroboration is
provided in the introduction to Leading Cases in the Common Law,64
where Simpson approvingly cites E.P. Thompson’s “distinguished study
of the significance . . . of the rule of law” in Whigs and Hunters65 as an
“empirically based . . . piece of history . . . far more illuminating than
the philosophical writings on the subject, which are largely unconnected
with reality.”66 Left-wing legal studies’ attitude to the rule of law had
become so completely critical of the “ideology” of the rule of law that
people, incommunicado, at home: H.C. Deb, vol.430 cols. 306-9 (26 January 2005). This
legislation would seem to promise to happily combine the most drastic repression if it is
unjustified with reduced effectiveness if it is justified, but at least it will appear more
“proportionate” in the way central to the Strasbourg and U.K. human rights jurisprudence
61 My views here were held by Lord Chancellor Jowitt during Simpson’s period (p. 740).
62 HUMAN RIGHTS & HISTORY, supra note 20, at 10.
63 SIMPSON, supra note 49, at 414.
64 See LCCL, supra note 25.
65 E.P. THOMPSON, WHIGS AND HUNTERS 258-69 (1977).
66 Simpson, Ideal Rule of Law, supra note 25, at 9.
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in 1975 Thompson, a historian with no legal training, was able to have
quite an impact by giving a really rather simple but certainly vivid67
illustration of the limits legality imposed on the use of force during
Walpole’s consolidation of the Hanoverian Succession; a domestic
episode with features as despicable as Empire.68 One might have hoped
that left-wing legal theory would be sufficiently sophisticated not to
need this lesson from a historian, but unfortunately this continues to be
far from the case.69
Simpson clearly wants to have his cake and eat it, but let us pay
him the compliment of refusing to allow him to do so and say that his
root and branch criticism of the common law cannot be rescued by the
sympathy shown to it throughout his historical work, but must be seen
to contradict it. The importance of this is that the contradiction follows
from an attitude to law reform which, though mistaken, is characteristic
of much left-wing legal scholarship and particularly of the argument for
entrenched human rights.
IV. SIMPSON’S JURISPRUDENCE
In their introduction to Simpson’s Festschrift, the editors made the
following joke which, like all good jokes, had a barb which caught:
In his glorious burst of work on leading cases in the last fifteen years
he has celebrated the importance of the contingent and the peculiar in
the making of the common law . . . . No doubt Brian would be
horrified to realise that his most recent positions, emphasising
chance, inter-textuality and the primacy of language over meaning,
place him closer to Jacques Derrida than most Harvard LawyerLefties.70
O’Donovan and Rubin obviously had in mind the moral Simpson draws
from his studies of leading cases: “[G]reater understanding of cases
does not generate general theories; instead it brings out the complexity
of affairs and the extreme difficulty of producing generalisations which
67 Morton J. Horwitz, The Rule of Law: An Unqualified Human Good?, 86 YALE L.J. 561
(1977) (reviewing DOUGLAS HAY ET AL., ALBION’S FATAL TREE: CRIME AND SOCIETY IN
EIGHTEENTH CENTURY ENGLAND (1975) and THOMPSON, supra note 65).
68 On the application of Thompson’s views to Empire compare RANAJIT GUHA, DOMINANCE
WITHOUT HEGEMONY 66-67 (1997) with LAUREN BENTON, LAW AND COLONIAL CULTURES
254-65 (2002).
69 Daniel H. Cole, “An Unqualified Human Good:” E.P. Thompson and the Rule of Law, 28
J.L. & SOC’Y 177 (2001).
70 HUMAN RIGHTS & HISTORY, supra note 20, at 3-4. Simpson has explicitly criticised “legal
deconstruction based upon ideas taken from . . . Derrida.” See A.W.B. Simpson, Legal
Iconoclasts and Legal Ideals, 58 U. CIN. L. REV. 819, 822 (1990) [hereinafter Simpson, Legal
Iconoclasts]; see also A.W.B. SIMPSON, INVITATION TO LAW 189-94 (1988) [hereinafter
SIMPSON, INVITATION].
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HUMAN RIGHTS AND COMMON LAW
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have any empirical validity,”71 which could be a manifesto for
Foucault’s critique of grand narrative. But, though I am seizing on this
point, I think both Simpson and the editors of his Festschrift are wrong
in one important way. It is not Simpson’s work on leading cases which
articulates post-modern nihilism72 but his jurisprudence, in which the
common law is pulled to bits but no superior theory of adjudication
explicitly put in its place, whereas in the historical work a sense of order
does emerge from the narrative.
The first public debate in which Simpson was involved (1957-59)
turned on a critique of a refinement of the “classical” formalist view of
precedent traceable to A.L. Goodhart.73 Acknowledging that the
statement in cases of the rule purportedly governing those cases could
be amorphous, Goodhart sought to make it more concrete by tying it to
the statement of the facts. Simpson argued that findings of fact were as
contingent as the statement of the rule of law central to the classical
view. So “heretical”74 was the destructive implication of Simpson’s
argument that he twice had to stress that he was not trying to defend the
classical view, or indeed any view, of precedent, but merely making a
negative point against Goodhart.75 Simpson’s views in this debate were
not, however, wholly sceptical,76 and his contribution to the first series
of Oxford Essays in Jurisprudence (1961)77 sought to recover a sense in
which the common law is binding after the classical view of precedent
is ditched. This line then disappears from his work, and, as we have
seen, the tenor of his views was very different by the time of The
Common Law and Legal Theory, which was his contribution to the
second series of Oxford Essays (1973). It seems significant that
Simpson omitted the first series’ essay from the comprehensive
collection of his longer articles up to 1987 in Legal Theory and Legal
History.78 By 1974, in an important lecture on Innovation in Nineteenth
Century Contract Law, he expressly doubted that “any dissection of the
71
72
A.W.B. Simpson, The Study of Cases, in LCCL, supra note 25, at 12.
The historical work which leaves this reader at least with the strongest impression that a
leading case, upon which an important doctrine is based, is tantamount to nonsense is A.W.B.
SIMPSON, CANNIBALISM AND THE COMMON LAW (1984).
73 A.W.B. Simpson, The Ratio Decidendi of a Case, 20 MOD. L. REV. 413 (1957); A.W.B.
Simpson, The Ratio Decidendi of a Case, 21 MOD. L. REV. 155 (1958) [hereinafter Simpson,
Ratio Decidendi (1958)]; A.W.B. Simpson, The Ratio Decidendi of a Case, 22 MOD. L. REV. 453
(1959) [hereinafter Simpson, Ratio Decidendi (1959)].
74 Simpson, Ratio Decidendi (1959), supra note 73, at 455.
75 Simpson, Ratio Decidendi (1958), supra note 73, at 160; Simpson, Ratio Decidendi (1959),
supra note 73, at 457.
76 E.g., id. at 455 (“The English judgment is an argumentative and sometimes rambling affair;
it is not always clear as it might be. In no small degree the vitality of the common law is the
consequence of the tradition that judges argue from the bench.”).
77 A.W.B. Simpson, The Ratio Decidendi of a Case and the Doctrine of Binding Precedent, in
OXFORD ESSAYS IN JURISPRUDENCE 148 (A.G. Guest ed., 1961).
78 See LTLH, supra note 3. The (short) ratio decidendi debate articles were also omitted.
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doctrine of precedent, or its corpse, will do much towards lifting the
dark veil” which Kahn-Freund believed “surrounds law finding and law
making in the common law,” and powerfully argued that it was the
contract textbook rather than decisions in cases that was the basis of
order in contract law.79
I do not think it necessary to go any further into Simpson’s formal
jurisprudence, for his own historical writings show that jurisprudence to
be inadequately developed. Those historical writings demonstrate a
corrigibility in common law reasoning that his jurisprudential writings
would tend to lead one to think he denied, and it is regrettable that
Simpson has not attempted to give a formal statement of that
corrigibility.80 The problem is that Simpson can see where excessively
formal jurisprudence goes wrong, but not where excessively
indeterminate legal history does likewise.81 It is significant that
Simpson does not sufficiently appreciate that realism was not only
destructive but, having destroyed, rebuilt.82 If one aspires only to
plausibly achievable standards of rigour, one can be as appreciative of
legal iconoclasm,83 and as insistent that there is no clear distinction
between legal reasoning and legal history,84 as Simpson himself, and yet
still arrive at a different conclusion about the common law.85 I do not
want to argue this, but will merely illustrate what I mean by reference to
Llewellyn, who did even more to point to the contingency of common
law reasoning and the importance of context in understanding it, but,
after doing so, concluded:
[We should] include in “the Law,” along with the rules of law, all the
rest of the doctrinal environment . . . . It is enough to mention here
the general conceptual frame, the vibrant though almost unspoken
ideals, the force-fields in doctrine and attitude which strain toward or
against movement in any contemplated direction, the going
techniques and going organisation of the work of LawGovernment . . . . And the consequent certainty of outcome is the
truest certainty legal work can have, a certainty not reached by
deduction but by dynamics, moving in step with human need yet
along and out of the lines laid out by [the] history of the Law and of
79 A.W.B. Simpson, Innovation in Nineteenth Century Contract Law, in LTLH, supra note 3,
at 171; see also A.W.B. Simpson, The Rise and Fall of the Legal Treatise [hereinafter Simpson,
Legal Treatise], in LTLH, supra note 3, at 273.
80 His most substantial effort in this vein is, in fact, in an introductory book, which I mention
in this context only because, at the level at which it is pitched it is excellent, and at any level it is
creditable. See SIMPSON, INVITATION, supra note 70, at 65-76, 186-89.
81 Cf. A.W.B. Simpson, RS Rattray and Ashanti Law, in LTLH, supra note 3, at 403, 426.
82 Simpson, Legal Treatise, supra note 79, at 319-20; SIMPSON, INVITATION, supra note 70,
at 189-92; Simpson, Legal Iconoclasts, supra note 70, at 829-30.
83 Id.
84 A.W.B. Simpson, The Analysis of Legal Concepts, in LTLH, supra note 3, at 335.
85 E.g., Neil MacCormick, Reconstruction after Deconstruction: Closing in on Critique, in
CLOSURE OR CRITIQUE 142 (Alan Norrie ed., 1993).
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the culture; the certainty, then, not of logical conclusion from static
universal, but of that reasonable regularity which is the law’s proper
interplay with life.86
Astounding as it is to say, Simpson’s criticism of the common law
is so negative because he has measured that law by the standard of
rigour he himself has ridiculed: the “automatic” or “formalistic”
decision-making of caricature accounts of positivism. Criticisms like
this can work only if one can claim there is anybody daft enough to
stand in the position of the straw man one is attacking, and, whatever
the situation some time ago when Simpson first formed his views, it is
wrong of him to persist in doing so. The nearest we have to a defence
of the “vulgar curiosity”87 that has led Simpson to find out so many
illuminating historical facts about cases is to be found in the
introductory essay to Leading Cases in the Common Law:
In the received theory of adjudication, most contextual information
about cases is simply irrelevant . . . most lawyers, and indeed most
academic lawyers, have little interest in high theory, and function
satisfactorily without possessing a very fully worked-out theory of
judicial decision. Like bumble bees, they manage to fly in spite of
the theoretical difficulties in explaining how they manage to do it.
But they do have a theory in the sense of a belief that certain factors,
loosely defined by the conventions of legal argument, ought to be
irrelevant to the decision of cases. And from this it is but a small
step to suppose that they are irrelevant to the doctrinal understanding
of cases. For lawyers, to quote E.P. Thompson, writing in 1975 of
what he calls “the greatest of all legal fictions,” “the law evolves,
from case to case, by its own impartial logic, true only to its own
integrity, unswayed by expedient considerations.” There is, of
course, a sense in which nobody really believes this any more, but it
remains the case that much legal behaviour proceeds on the
assumption that the law is like that. For example, all legal argument
in court makes this assumption.88
The sense in which “nobody really believes this any more” is that really
nobody believes it,89 and therefore it is only in an unusual sense that
Simpson’s empirical claim about argument in court is true, and there is
no sense in which there is now any theoretical gain to be made by
criticising this view of the common law.90 But, although nobody in
86
87
88
89
KARL N. LLEWELLYN, THE COMMON LAW TRADITION 185-86 (1960).
Simpson, supra note 71, at 9.
Id. at 10 (quoting THOMPSON, supra note 65, at 250).
DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION (FIN DE SIÈCLE) 105 (1997)
(explaining that Langdellian formalism is a theory with “no known American proponents”).
90 Simpson is the General Editor of a new series of “Oxford Studies in Modern Legal
History.” The first volume, MICHAEL TAGGART, PRIVATE PROPERTY AND ABUSE OF RIGHTS IN
VICTORIAN ENGLAND (2002), is a study of The Mayor of Bradford v. Pickles, [1895] A.C. 587
(H.L.(E.)), rather to the same effect, but with much welcome extra detail, as Simpson’s own
discussion of this case in a Selden Society lecture. See A.W.B. SIMPSON, VICTORIAN LAW AND
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recent legal scholarship has done more than Simpson to make it
impossible to describe the common law as akin to formal logic, it is for
failing to live up to this description that Simpson criticises that law. As
it does not suggest an alternative framework for corrigibility, Simpson’s
comments on the historical determinants of the common law appear, as
O’Donovan and Rubin attest, nihilistic.
I do not want directly to defend Llewellyn’s concept of
reckonability against the indeterminacy with which Simpson’s
jurisprudential writings leave us (though I should make it clear that I
believe that, with refinements due to Fuller, it is the best theory of
adjudication we have). Instead, I want to show why broadly the same
“socio-legal” approach that allowed Llewellyn to end with reckonability
led Simpson to end with a celebration of indeterminacy which can be
likened to post-modernism. This takes us back to his concerns about the
weakness of the common law and his proposed solution of entrenched
human rights. The point I wish to make emerges from analysis of a
recent coup by Simpson: his successful criticism of Ronald Coase.
V. SIMPSON AND COASE
In an exchange of papers in 1996, Simpson sought to defend A.C.
Pigou’s argument for piecemeal but widespread state intervention
against the attack Coase mounted on it in The Problem of Social Cost.91
Simpson certainly comes off best in this exchange, but one of the
reasons he does so is that he had the good fortune to unintendedly land a
blow on Coase’s most tender spot.
Coase has spent his long academic life criticising mainstream
economics for being overly theoretical or insufficiently empirical, and
the main empirical fact he has tried to force to economists’ attention is
the existence of the legal system. In one sense, Coase has failed, or at
least not succeeded yet. He has tried to make economists pay more
attention to law, but “law and economics” under the influence of
Richard Posner has, as C.A.E. Goodhart put it, been too much a matter
of “one-way traffic” in the other direction, with law being subject to
(not infrequently silly) criticisms that it is economically “inefficient.”92
THE INDUSTRIAL SPIRIT (1995) [hereinafter SIMPSON, VICTORIAN LAW]. The merit Simpson
claims for Taggart’s book in his “General Editor’s Preface” (TAGGART, loc. cit., at viii) is that it
“brings out, with particular clarity, the fact that the doctrine associated with the case is a product
of time and place, and not the expression of some timeless verity.” Fortunately for this book, and
for Simpson’s own lecture, they display far more than this very ordinary accomplishment.
91 R.H. Coase, The Problem of Social Cost, in R.H. COASE, THE FIRM, THE MARKET AND
THE LAW 95 (1986).
92 C.A.E. Goodhart, Economics and the Law: Too Much One Way Traffic?, 60 MOD. L. REV.
1 (1997); see David Campbell & Sol Picciotto, Exploring the Interaction Between Law and
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I will not argue here what I have argued at length elsewhere:
“Posnerian” law and economics is at its heart opposed by Coase,93 the
core of whose work is not that the law should be more “economic” but
that, in a most important sense, the economy rests on law:
If we move from a regime of zero transaction costs to one of positive
transaction costs, what becomes immediately clear is the importance
of the legal system in the new world . . . what are traded on the
market are not, as is often supposed by economists, physical entities
but the rights to perform certain actions, and the rights which
individuals possess are established by the legal system . . . the legal
system will have a profound effect on the working of the economic
system and may in certain respects be said to control it.94
In its criticisms of the substitution of theorising for knowledge of
the empirical (especially legal) situation, Coase’s basic attitude towards
mainstream economics is, in fact, very much like Simpson’s to overly
theoretical legal scholarship.95 However, so far as I am aware, Coase
has not maintained any study of legal doctrine for, as it were, its own
sake since he was awarded his B.Com. by the London School of
Economics and Political Science in 1932,96 and in the main legal
example he gives in The Problem of Social Cost he makes a bad
mistake. Coase uses the leading nuisance case of Sturges v. Bridgman97
to illustrate his argument that, at zero transaction costs, land use rights
will be optimally allocated between competing users by negotiation:
what has come to be known as the Coase Theorem. It is not a telling
Economics: The Limits of Formalism, 18 LEGAL STUD. 249 (1998).
93 David Campbell, On What is Valuable in Law and Economics, 8 OTAGO L. REV. 489
(1996).
94 R.H. Coase, The Institutional Structure of Production, in R.H. COASE, ESSAYS ON
ECONOMICS AND ECONOMISTS 3, 11 (1994).
95 Simpson’s complaint that “in the world of academic law . . . we run the risk of having too
much theory chasing too small a body of empirical information” (A.W.B. Simpson, Empirical
Insight and Some Thoughts on Future(s) Investigation, 98 MICH. L. REV. 2616, 2619 (2000),
stated again in the book under review (p. vi)), is wholly reminiscent of the attitude that eventually
led Coase to be awarded the Nobel Prize. COASE, supra note 94, at 5. Simpson’s attack in this
paper on “modern economists’ abstract” conception of markets in general and financial futures
exchanges in particular could be a plagiarism of Coase (of course it is not). Cf. id. at 12; R.H.
Coase, The Firm, the Market and the Law, in COASE, THE FIRM, supra note 91, at 7-10. It must
certainly be said, however, that Coase was hardly going to convince Simpson of the closeness of
their views in the course of their exchange by saying that, as Simpson was not an economist, he
would not be able to understand what Coase was arguing. See R.H. Coase, Law and Economics
and A.W. Brian Simpson, 25 J. LEGAL STUD. 103 (1996); A.W.B. Simpson, An Addendum, 25 J.
LEGAL STUD. 99 (1996).
96 R.H. Coase, The Nature of the Firm: Origins, Evolution and Development, in THE NATURE
OF THE FIRM 34, 36-37 (Oliver E. Williamson & Sidney G. Winter eds., 1993). Coase took the
outright law component of his studies in either 1929 or 1930. See R.H. Coase, Blackmail, 74 VA.
L. REV. 655, 665 (1988). Though I have made no enquiries into the exact syllabus Coase studied,
I am almost certain that his were rudimentary studies so far as regards the development of legal
reasoning skills.
97 (1879) 11 Ch. D. 852 (C.A.).
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criticism of Coase’s argument that it is empirically implausible. Coase
is perfectly aware that optimal allocations will not occur in this way in
the real world of positive transactions costs. His main purpose, of
which Simpson would approve, is to show the empirical implausibility
of the zero transaction cost assumption, and with it the concept of
general competitive equilibrium, and their consequent very limited
utility in policy-making.
What is wrong with Coase’s argument is that Sturges is a very bad
illustration of it. Sturges is a real case and bargaining by no means
worked perfectly in it, and Coase was wrong to fudge the line between
the case as illustration of a theoretical argument and the case as real
life.98 But, even worse, Sturges could begin to suit Coase’s purpose
only if it was a case that clearly encouraged the parties to bargain,
whereas, as a case actually decided on the “give and take” principle that
has come to dominate the English law of nuisance, this encouragement
is not given. The party whose use is, in the opinion of the court, the
most valuable, gets costless permission for that use under this principle,
and the necessity for negotiation is undermined. As later law and
economics scholarship has done much to make clear, strict liability does
more to encourage bargaining around property rights, and Coase in
effect treated Sturges as turning on strict liability, when this is the last
thing that case in particular, or the law of private nuisance in general,
actually does.99 Simpson, whose own discussions of the relevant
leading cases are, of course, acute,100 has tremendous fun at Coase’s
expense over this mistake, and he draws the conclusion that, if this is
the best Coase can do, then Coase’s criticism of Pigou falls.101
98 What he has done is subject to his own criticism of the use of illustrations to “give artistic
verisimilitude.” R.H. Coase, The Lighthouse in Economics, in COASE, THE FIRM, supra note 91,
187 at 211.
99 Simpson briefly discusses the point, citing much of the leading literature, in SIMPSON,
VICTORIAN LAW supra note 90, at 5. This is hardly the point to enter into extensive discussion of
these issues, my views on which are set out in David Campbell, Of Coase and Corn: A (Sort of)
Defence of Private Nuisance, 63 MOD. L. REV. 197 (2000) and DONALD HARRIS ET AL.,
REMEDIES IN CONTRACT AND TORT ch. 25 (2d ed. 2002).
100 See the discussion of Sturges v. Bridgman in A.W.B. Simpson, Coase v. Pigou
Reexamined, 25 J. LEGAL STUD. 53 (1996) (reprinted with revisions in PROPERTY STORIES 9
(Gerald Korngold & Andrew P. Morriss eds., 2004)) [hereinafter Simpson, Coase v. Pigou]. I am
grateful to Professor Simpson for providing me with a copy of this book prior to its U.K.
publication. See also A.W.B. Simpson, Victorian Judges and the Problem of Social Cost:
Tipping v. St. Helen’s Smelting Company, in LCCL, supra note 25, at 163; A.W.B. Simpson,
Bursting Reservoirs and Victorian Tort Law: Rylands and Horrocks v. Fletcher (1868), in LCCL,
supra note 25, at 195.
101 As it happens, the substance of Coase’s specific criticism of Pigou was, if the anachronism
be allowed, accepted by Pigou himself. This criticism is an apparently unconscious (Edmund W.
Kitch ed., The Fire of Truth, 26 J.L. & ECON. 163, 215 (1983)), reworking of a criticism of a
passage in the first edition of A.C. PIGOU, ECONOMICS OF WELFARE 194 (1920) put forward in
1924 in F.H. Knight, Some Fallacies in the Interpretation of Social Cost, 38 Q.J. ECON. 582, 58492 (1924). It certainly is the case that Knight makes the point far more clearly than it is made in
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But as the gist of Simpson’s criticism of Coase is that he is an
“economist,” then, if one accepts my account of why that criticism
landed such a telling blow, it is manifest that Simpson was uncommonly
lucky to land it. It is embarrassing that the most important law and
economics paper makes a bad mistake about the law, but this happened
only because Coase was trying to force mainstream economics to pay
attention to the law. Although Coase has gained such eminence that it
is difficult to realise just how unorthodox and initially difficult a path he
was trying to take,102 the last thing that can be said about him is that he
is an economist in the way Simpson suggests, and Coase’s basic
criticism of the Pigouvian case for state intervention comfortably
survives Simpson’s criticism.
Coase does not argue that were we to leave things to the market,
then everything would be fine. He has himself been the main critic of
the Coase Theorem,103 and to the extent it can be said to advance any
concrete policy proposal, The Problem of Social Cost itself concludes
that direct state governance is “particularly likely” to be the best way of
handling smoke pollution.104 Coase’s position is, rather, that in the real
world of positive transaction costs no system will work perfectly, and
therefore it is not enough to point to “market failure” to justify
intervention. The market has costs and will fail, but so has state
intervention, and a proper case for intervention must not only show that
the market fails but that the intervention will be an improvement.
Coase’s telling argument against Pigou is that he was too casual in his
assumption about how well the public institutions which will have to
carry out any intervention will work, and therefore was often
overconfident about the results of intervention. This argument seems to
me justified,105 and Coase has immeasurably raised the level of the
The Problem of Social Cost. Pigou (grudgingly) acknowledged the force of a criticism to similar
effect as Knight’s as it was independently made by, inter alia, D.H. Robertson (Those Empty
Boxes, 34 ECON. J. 16, 30-31 (1924) (exchange with Pigou); cf. Knight loc. cit., at 583 note 2),
and omitted the criticised passage (and other material) from subsequent editions of ECONOMICS
OF WELFARE. The intellectual history of this episode is described in Howard S. Ellis and William
Fellner, External Economies and Diseconomies, 33 AM. ECON. REV. 493 (1943) (the specific
passage criticised by Knight is discussed at 498 n.14).
102 The American Economic Association did not, for example, include The Problem of Social
Cost in one of its highly prestigious selections of readings because “unfortunately . . . with its
many legal examples [it] was too long for inclusion.” READINGS IN WELFARE ECONOMICS 184
(Kenneth J. Arrow & Tibor Scitovsky eds., 1969). When, in 1959, Coase presented the applied
argument about allocating broadcasting frequencies, which is written up in general theoretical
terms in The Problem of Social Cost to a Federal Communications Commission hearing, a
Commissioner thought he was making a joke at the expense of the Commission. See R.H. Coase,
Comment on T.W. Hazlitt, Assigning Property Rights to Radio Spectrum Users: Why Did FCC
License Auctions Take 67 Years, 41 J.L. & ECON. 577, 579 (1998).
103 See, e.g., Coase, supra note 94, at 11.
104 See Coase, supra note 91, at 118.
105 See David Campbell, The “Hybrid Contract” and the Merging of the Public and Private
Law of the Allocation of Economic Goods, in PROMOTING PARTICIPATION: LAW OR POLITICS? 45
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discussion of economic policy formulation. Our concept of “market
failure” must, Coase says, be complemented by a concept of
“government failure,” and when trying to decide between alternative
forms of “governance structure” for the allocation of goods, we must
even-handedly weigh the costs of all alternatives. Merely pointing out
that one (the market) “fails” is not enough, for “[u]ntil we realise that
we are choosing between social arrangements which are all more or less
failures, we are not likely to make much headway.”106
Simpson is wrong, then, to claim that the “first idea . . . which runs
through Coase’s writings is deep scepticism as to the desirability of
government intervention,”107 if by “first idea” is meant a bias, as
Simpson evidently does intend it to mean. What the evaluation of
governance structures in Coasean transaction cost economics calls for is
the even-handed weighing of alternatives, and the use of state
intervention only when it is the best alternative. Because he was in
advance of many of us in recognising the extent to which public bodies
may fail, Coase moved from being a socialist in the 1930s to being an
early example of what is now called a neo-liberal. Whether one agrees
with it or not, Coase’s scepticism about planning economic allocations
at the scales on which the social-democratic states now work (and a
fortiori the scales at which the communist states worked) is the result of
weighing the empirical evidence.108 Indeed, as extremely active editor
of The Journal of Law and Economics and as inspiration for and
foundation President of the International Society for New Institutional
Economics, Coase has promoted two of the largest and most successful
bodies of empirical work in social science.
The point of this long digression is that the U.K.’s developing
commitment to the Strasbourg jurisprudence, to the point of the passage
of the Human Rights Act 1998, is itself open to Coase’s criticism of
intervention. It was and is an intervention in the English common law
system which is not backed by any sustained argument that the
intervention will produce a situation superior to that which previously
obtained, and just pointing out that what obtained was not beyond
criticism does not address the vital point. Simpson’s attitude to the
common law and human rights turns on a failure to apply Coase’s
criticism to the Strasbourg jurisprudence, though there is scattered
evidence in his work that he can see the point of that criticism in respect
of other changes. Simpson had the unpleasant experience of seeing, as
a member of the Williams Committee on the reform of the laws relating
(David Campbell & N. Douglas Lewis eds., 1999).
106 R.H. Coase, The Regulated Industries: Discussion, 54 AM. ECON. REV. 194, 195 (1964).
107 Simpson, Coase v. Pigou, supra note 100, at 58.
108 David Campbell & Matthias Klaes, The Principle of Institutional Direction: Coase’s
Regulatory Critique of Intervention, CAMBRIDGE J. ECON. (forthcoming 2005).
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to pornography, the rational fruits of his labour “killed” by the political
process,109 and when reflecting on modern law reform he has criticised
“[t]he superabundance of laws [which] reflects today a faith in what can
be achieved by them which at times seems to have got quite out of
hand; law is the panacea for all social ills.”110
On the other hand, Simpson’s dislike of Coase’s work seems to be
of a piece with a dislike of the “industrial” or “entrepreneurial” spirit of
“economics” expressed in a romantic view of nationalisation that
cannot, I think it fair to say, be sustained by any informed evaluation of
post-war economic performance.111 Such a view often leads to the
disparagement of concern with economy in the expenditure of
resources, and it is in this spirit that Simpson slightingly says that “those
who work in modern British universities, or the administration of the
National Health Service” would “recognise” the economic approach.112
We will come across this disregard of economy again, but look at the
examples Simpson gives of the adverse effect of the “economic.” Both
are institutions run by the Government at vast, uncontrollable public
expense which nevertheless exist in a miasma of privation because the
propensity to consume services which appear to be free is infinite.113
109 A.W.B. SIMPSON, PORNOGRAPHY AND POLITICS (1983). Simpson even notes that the
1968 and 1978 legislative attempts to reform the common law of theft had made things worse.
SIMPSON, INVITATION, supra note 70, at 16.
110 SIMPSON, INVITATION, supra note 70, at 3.
111 SIMPSON, VICTORIAN LAW, supra note 90, at 28. An authoritative verdict on the belief that
nationalised industry provided a “public” alternative to the “excessive profits” of “parasitic”
private “monopolies” has been given in Leslie Hannah, The Economic Consequences of the State
Ownership of Industry 1945-90, in 3 THE ECONOMIC HISTORY OF BRITAIN SINCE 1700 168, 179,
194 (Roderick Floud & Donald McCloskey eds., 2nd ed. 1994):
Those who ran the [nationalised] industries were perfectly willing to accept [the]
generous view that they represented the public interest. It did not take [post-war]
politicians long to see the flaws in [this] rosy, but naïve, image of public-spirited
managerial discretion. Given the nationalised industries’ monopoly position, there was
a strong temptation for managers to take out their monopoly profits in what economists
have long recognised as the best way: a quiet life . . . .
The interesting debates on the network monopolies now [turn] on the extent and
nature of regulation, and to the prospects for introducing greater market competition in
areas where regulation could be made redundant by better conceived structures and
policies. The wisdom of this refocusing of political energies cannot seriously be
questioned by the student of post-war experience.
112 SIMPSON, VICTORIAN LAW, supra note 90, at 9.
113 The current plan for the N.H.S. does indeed principally seek to address a situation in
which, in the opinion of those employed in health provision responsible for the plan: “Constraints
on funding mean that staff often work under great pressure and lack the time and resources they
need to offer the best possible service.” THE N.H.S. PLAN preface (Cm 4818-I 2000). U.S.
readers might benefit from being informed that the N.H.S. was at the time of the plan, and is even
more so now, the largest organisation in Europe, with around 1.3 million direct employees, only
8.5 percent of which are doctors and over 50 percent of which are not clinical staff of any sort.
The N.H.S.’s payroll has grown by an average of 37,000 per year every year since 1997.
Whatever evaluation is placed on the N.H.S.’s performance, it cannot plausibly be thought to be
starved of resources unless the fact that its resources do not allow it to respond to every “need”
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One might conclude that, from the distance of the University of
Michigan School of Law (which must have changed considerably from
my days as a student there if its continuing excellence is now based on
its being a refuge from the economic spirit), Simpson has lost his grasp
of the organisation of the British public sector, were it not that his views
on the public sector in particular, and the “economic” in general, are
common enough at home.
No doubt I am using a sledge-hammer to crack a nut. Let us
proceed on the basis that Simpson’s views are those of an outstandingly
able subscriber to the Pigouvian, or more generally Keynesian,
consensus criticised by Coase, and evaluate the implications of this for
his advocacy of human rights.
VI. SOME CRITICISMS OF THE WORKING OF HUMAN RIGHTS
JURISPRUDENCE
Simpson’s book seems to me to make it obvious, though this will
not have been his intention, that, however bad the common law, human
rights jurisprudence cannot sensibly be advocated if it will not work,
and in that book we repeatedly see it not working in at least two ways.
The first is that it is simply ineffective: it is merely formal in the way
the left has long criticised bourgeois right for being merely formal. The
constitution under which, for example, Nigeria became independent
particularly firmly entrenched as “Fundamental Rights” most of the
Convention as it stood in 1959. This constitution was the product of
Colonial Office advice after it had become a warm advocate of the
“export” of human rights (pp. 347-48). In the contemporaneous opinion
of an official of the Commonwealth Relations Office, this constitution
was an ill-advised product of “the incorrigible paternalism of the
Colonial Office” (p. 869). The official was frightened by the
constitution because “it is the most rigid and therefore the most brittle
constitution . . . ever devised” (p. 870). The official’s opinion was
highly prescient, for the horror of the subsequent history of Nigeria was
soon to show the fruitlessness of legal rights without the cultural and
institutional conditions which might give them any credence.114
represents such starvation, which indeed is the view of most health commentators and
practitioners, and perhaps of most British people.
I am able to avoid expanding upon my views on British higher education as one of the
N.H.S.’s doctors has somehow found the time to write me a “sick note” excusing me, for the sake
of my blood pressure, from ever dwelling on this dismal subject, one of the 22 million such notes
they wrote last year.
114 Lester, Fundamental Rights, supra note 6, at 55-56 uses the Nigerian constitution to
illustrate the growth of human rights jurisprudence in the Commonwealth but is not detained by
an evaluation of the value of this constitution.
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Much advocacy of human rights proceeds in blithe ignorance of
points like this, which must carry weight with anyone whose faith does
not blind them to counter-evidence. In her essay in Simpson’s
Festschrift, Ms. Mole looks longingly at the right of individual petition
created in 1907 under Article 2 of the Convention for the Establishment
of a Central American Court of Justice (pp. 120-21), and admonishes us
by saying:
It has taken Europe a long time to arrive at the stage that Central
America had reached in the first decade of the twentieth century.
The rest of the world is still waiting.115
I for one read passages like this in human rights jurisprudence with the
growing conviction that either the writer or the reader has lost their
senses. Knowing perfectly well that only ten cases were ever taken to
the Central American Court, that all of these were declared
inadmissible, and that “the system soon fell into disuse,”116 does not
prevent Ms. Mole chiding us for our clear delict in lagging behind this
instructive example.
Simpson does not suffer from quite this blindness, and recognises
that its “complete ineffectiveness” (p. 3) means that the Central
American “experiment was not . . . encouraging” (p. 121). Simpson
generally finds it a virtue “that the Strasbourg Court has so often
insisted that remedies be practical and effective, not theoretical or
illusory,”117 and I can agree with him that it would be good if this
insistence on practicality were not itself largely theoretical. Simpson’s
weakness is not that he fails to see the pointlessness of measures which
have no benefit; it is the more sophisticated weakness that he merely
sees the possible benefits of measures and does not balance these
against their costs. Human rights jurisprudence cannot sensibly be
advocated, even when it has a positive effect, if the cost of achieving it
is to bring the legal system into such disrepute that this outweighs
whatever good is achieved. It is not good enough for Simpson to claim
that “some limits are placed on government repression by the
jurisprudence of the . . . Convention,”118 or that the Convention’s
“contribution must be that of shifting the balance a little away from
state sovereignty and a little towards the protection of the individual
from abusive power,”119 and conclude from this, as we have seen him
conclude, that passing the Convention was “surely” right (p. 1).
Simpson often weakens the claims he expressly makes for the
115
116
Mole, supra note 59, at 15.
Id. at 14. The Convention lapsed in 1918, i.e., after eleven years. A 1923 Convention
establishing a new Central American Tribunal made no provision for individual petition.
117 Simpson, Lauterpacht, supra note 16, at 79.
118 Simpson, Devlin Commission, supra note 14, at 19.
119 Simpson, Usual Suspects, supra note 14, at 710.
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“precarious”120 benefits of international human rights protection121 to
the point that there is little point in denying them. But even, for the
sake of argument, allowing them, Simpson still must show that they
were not obtained at a greater cost, and I am unaware of any passage in
all of his work where he seeks to do this. Instead, displaying a tendency
MacIntyre has deplored,122 Simpson defends international human rights
protection as faith:
Any contentions as to the practical effectiveness of the Universal
Declaration [of Human Rights], if the claim is empirical in nature,
are incapable of either verification or falsification; there is just no
way of compiling a balance sheet. As the tablets of the law of a
secular religion the Universal Declaration of Human Rights belongs
to the realm of faith, where empirical questions do not make a great
deal of sense. And faith has its own importance. (p. 461)123
A relaxed attitude to the question of how much public resource
should be committed to the formulation and what passes for the
enforcement of these warming sentiments will come as a relief to those
employed by the international agencies, amongst whose virtues concern
for economy and effectiveness does not appear to feature highly.124
But, of course, one’s estimation of how wise investments of public
funds have been rather depends on the standard one sets for them, and if
one sees only good stemming from good intentions, one might adopt lax
standards. Reviewing the proselytising collection of essays on human
rights in which Mr. Wilmot-Smith gave us the benefit of his views,
Simpson notes that “on technical matters there are quite a number of
120
121
122
Simpson, Lauterpacht, supra note 16, at 80.
See also infra note 142.
ALASDAIR MACINTYRE, AFTER VIRTUE 69 (2d ed. 1985) (“In the United Nations
declaration on human rights of 1948 what has since become the normal UN practise of not giving
good reasons for any assertions whatsoever is followed with great rigor.”).
123 Of the Genocide Convention Simpson writes: “Its function is perhaps best understood as
being expressive or hortatory, and its practical effect is inherently impossible to assess in any
objective way.” Simpson, Genocide Convention, supra note 16, at 5, 64. He nevertheless regards
the diplomacy around the Convention which has led to establishment of an international criminal
court as “a long and ultimately successful process.” Id. At note 3 Simpson refers to SAMANTHA
POWER, “A PROBLEM FROM HELL”: AMERICA AND THE AGE OF GENOCIDE (2002), perhaps the
winner of the heavily contested prize of most dogmatic discussion of the international court I
have read. I am in very substantial agreement with the review of this book by Stephen Holmes.
See Looking Away, LONDON REV. OF BOOKS 3 (Nov. 14, 2002) (reviewing POWER, loc. cit. and
DAVID HALBERSTAM, WAR IN A TIME OF PEACE (2002)).
124 Sometimes, of course, the joke is not so funny, as (to take two recent examples) in
Srebrenica in 1995 or East Timor in 1999, when the failure to back up with adequate resources
the professions of the human rights faith by the U.N. led to catastrophe for those unwise enough
to take those professions at face value. In a typical evaluation of this episode by those advocating
the creation of an international criminal court, Hirsh tells us that Srebrenica occurred because
“there was no political will to defend human rights.” See DAVID HIRSH, LAW AGAINST
GENOCIDE 64 (2003). It is a dogmatism based on a belief that the failure of the policy he
advocates can only indicate a lack of will that has led Hirsh to make this factually incorrect
statement.
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HUMAN RIGHTS AND COMMON LAW
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slips of one kind or another,” but dismisses these as “trivia” which do
not “matter in this context [for] the aim is to raise issues and generate
interest in an important political question.”125
One of these slips is that a contributor argues that it is clear that
Britain needed a bill of rights because it has had “twice as many
petitions . . . lodged against it [in the European Court of Human
Rights] . . . and has lost more serious cases than any other nation.”126
As Simpson says, it would have been wise of the contributor to “wonder
why France, given those unfortunate incidents in Algeria, has fared so
much better”;127 but, one assumes out of politeness, he merely alludes to
the error of not knowing that France, largely because of fear of what
would happen over Algeria, where “the use of torture [was]
widespread” (p. 1077), did not ratify the Convention until 1974 (pp. 6,
1072) (nor allow individual petition until 1981). Simpson has, however,
been known to be tougher on slighter defects in common law
reasoning128 than he is on this outright incompetent argument, made
innumerable times by advocates of the U.K. Human Rights Act.129
The irony which permeates Simpson’s book is that the conclusion
of the Convention is a textbook example of a Coasean criticism of
government failure. There was not the slightest democratic mandate for
the British Foreign Office’s promotion of the Convention beyond the
undoubtedly unsatisfactory mandate provided by the despised unwritten
constitution. The Foreign Office had no idea what it was doing when it
undertook that promotion, but nevertheless proceeded in the face of
opposition from the Lord Chancellor during the negotiations, W.A.
Jowitt (pp. 728-29, 739-45, 770-73, 775-80, 784-85, 798-99).130 The
costs and consequences of what was done came as a series of shocks
which, without the efforts to mitigate them described by Simpson,
125
126
Simpson, Book Review, supra note 25, at 206.
Ronald Dworkin, Does Britain Need a Bill of Rights?, in HUMAN RIGHTS IN THE UNITED
KINGDOM, supra note 25, 59 at 63.
127 Simpson, Book Review, supra note 25, at 206.
128 His unforgettable review of A.G. Guest’s Centenary edition of ANSON ON CONTRACT
(25th ed. 1979) was not entirely approving of the mark of the work’s long history upon the text:
“it resembles in some respects a venerable archaeological site, whose surface rests upon layer and
layer of material which has, in the course of time, become mere rubbish.” A.W.B. Simpson,
Contract: The Twitching Corpse, in LTLH, supra note 3, at 321, 322 (book review).
129 One could say more. In addition to killing, “psychologically” torturing, and beating
thousands of detained persons in a more common manner, the French employed esoteric methods
of torture such as half-drowning and, the one “most favoured,” the application of electrodes “to
various parts of the human body—notably the penis.”
There also were
“instances . . . of . . . bottles thrust into the vaginas of young Muslim women [and of] high
pressure hoses inserted into the rectum.” ALISTAIR HORNE, A SAVAGE WAR OF PEACE 199-200
(1977) (deriving its title from Rudyard Kipling, The White Man’s Burden). (The conduct of
members of the independence movements during the “war” and, upon independence, their
treatment of the vanquished they still had to hand was, if anything, even worse). To venture an
opinion on these matters in ignorance of these facts is a disgrace.
130 See text accompanying infra note 148.
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might have had dreadful consequences. It is hard to defend the selfinfliction of wounds in this way, and whilst it is wrong of the British
Government now to complain about the consequences of its own
policies—unless it backs the complaint by repealing the Human Rights
Act131 and perhaps withdrawing (to some degree) from the
Convention—this does not mean that the complaint has no substance.
Under the sway of the Keynesian consensus, we embarked on all
sorts of marvellous public projects armed only with faith that they
would work, and Simpson’s book is written within this framework,
which surely no longer has theoretical credence, even though it is
obvious enough that it still has sufficient political influence to sanction
the grossest absurdities. All examples from Simpson’s period to which
I intended to refer—the groundnut scheme, Concorde, fusion reactors,
high rise social housing, etc., etc.—were made redundant by current
events. For as this book review was being drafted, the Government
which passed the Human Rights Act proceeded to abolish the
anomalous and unprincipled office of Lord Chancellor, only for the
Prime Minister almost immediately to be obliged to reinstate it (and
deny he had ever really abolished it) when it was pointed out to him that
that Parliament could not sit without the Lord Chancellor.132 That the
Prime Minister evidently remained ignorant of such basic characteristics
of the British constitution, whilst nevertheless embarking upon what he
intends to be the most profound constitutional reform the U.K. has seen
since the achievement of universal suffrage, is not as amazing as it
appears when one realises that he and an unidentified cabal knocked the
proposal off as, it appears, an incident to a Cabinet reshuffle.133 The
Prime Minister eschewed consultation with Judiciary,134 Parliament,135
131
132
Jonathan Morgan, Law’s British Empire, 22 OXFORD J. LEGAL STUD. 729 (2002).
Joshua Rozenberg & George Jones, Reform Blocked by 1,400 Years of Tradition, DAILY
TELEGRAPH, June 14, 2003, at 8.
133 William Rees-Mogg, The Long Knives Flash again as Panic Reigns at Number 10, SUN.
TIMES, June 15, 2003, at 17.
134 Perhaps the principal social event of the legal year in England and Wales is the annual
dinner given by The Lord Mayor of London for the Judiciary. At the dinner held shortly after the
proposed reforms become known, Lord Woolf, The Lord Chief Justice, told guests that “so
dramatic have [recent] changes been, I have recently acquired the habit of scanning the papers
before breakfast each morning to see whether I am still the Chief Justice,” Lord Woolf, Speech at
the Annual Dinner for H.M. Judges, Mansion House (July 9, 2003), available at
http://dca.gov.U.K./judicial/speeches/lcj090703.htm. Lord Woolf’s scalding attacks on Lord
Falconer of Thoroton, the very old friend and former flatmate of the Prime Minister now
appointed to simultaneously be interim Lord Chancellor and to pilot the reforms as Secretary of
State for the newly created Department of Constitutional Affairs, are wholly reminiscent of Lord
Chancellor Jowitt’s remarks criticised by Simpson. In the speech just cited, Lord Woolf went on
to say:
I cannot allow this occasion to pass without again congratulating the Lord Falconer of
Thoroton, on behalf of the judiciary, on his appointment both as Lord Chancellor and
Secretary of State for the Department of Constitutional Affairs (a department which is
already rejoicing in being known by the anodyne acronym “Decaf”). We know that
2005]
HUMAN RIGHTS AND COMMON LAW
823
Monarch,136 or, to complete an astonishing constitutional clean sweep,
even Executive in the shape of his own Cabinet.137 So extraordinarily
rushed and consequently stupid has been this “process” of constitutional
reform that it remains impossible more than a year after news of it was
leaked to the press to say what is being proposed,138 but a supreme court
appropriate to the new world ushered in by the Human Rights Act
undoubtedly features (though no detail of it is yet known).
Whilst it is right that the facts that the office of Lord Chancellor is
almost a millennium old and that the Lord Chancellor is the most
successful “minister of justice” the modern world has known139 are not
enough to guarantee the office’s continuation, what sort of attitude
would celebrate the office’s abolition when there is no clear idea of
what will replace it? This almost incredible episode smacks of that
irresponsible aspect of the left-wing cast of mind which fails to limit
one’s criticism of existing arrangements to the extent that one might
realistically hope to improve upon them, which requires an appreciation
of the fact that even the best intentioned interventions have costs.
Throughout the period Simpson examines, the terrible cost of
unduly accelerating the delicate process of decolonisation loomed over
Convention jurisprudence (pp. 1057-58), and Simpson captures the
during his term of office he will strive faithfully to uphold the heavy responsibilities of
his role as Lord Chancellor while, at the same time, performing his other role as
Secretary of State which involves planning and then executing the abolition of that
ancient office. I fully recognise the difficulties involved in these dual responsibilities.
It is as though Gilbert and Sullivan had combined the roles of The Lord Chancellor in
Iolanthe (who “has no kind of fault or flaw”), with that of the Lord High Executioner
of the Mikado (who “by a set of curious chances” has got the Lord Chancellor on his
list and is sure he will not be missed).
Id. All that has to be added is that Lord Falconer sat by the Chief Justice’s side during these
remarks.
135 The first time the constitutional reforms were mentioned in Parliament was in the following
speech by The Earl of Onslow in the House of Lords (H.L. Deb. vol. 649, col. 436, June 12,
2003):
My Lords, it has been announced on the television that the office of Lord Chancellor
should be abolished. Is it not totally disgraceful that no Statement has been made to
Parliament and no discussion has taken place, and that an office of 800 years has been
abolished without anyone debating it? At the whim of the Prime Minister, we have
altered the constitution. Suddenly we are landed with this, and nobody knows what is
happening. It is an abuse of process, of privilege and of office. What can we do about
it? I therefore beg to move that the House do now adjourn.
136 Benedict Brogan, Blair on the Rack over Reshuffle Chaos, DAILY TELEGRAPH, June 16,
2003, at 1.
137 Kamal Ahmed, Cabinet ‘Kept in Dark’ Over Law Reforms, OBSERVER, June 15, 2003, at 1.
138 The most helpful official account so far is HOUSE OF COMMONS CONSTITUTIONAL
AFFAIRS COMMITTEE, JUDICIAL APPOINTMENTS AND A SUPREME COURT (COURT OF FINAL
APPEAL) (H.C. 48 2003-4), available at http://www.parliament.the-stationary-office.co.uk/pa/
cm200304/cmselect/cmconst/48/48.pdf. The fullest commentary which has appeared so far,
albeit with all the contributions being from persons in favour of radical constitutional reform in
principle, is CONSTITUTIONAL INNOVATION (Derek Morgan ed., 2004).
139 I fear Simpson would regard me as a “notable bore” (p. 1086) for making this claim.
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political manoeuvring by which this cost came to be appreciated and
avoided, either by the U.K. Government adopting complicated
procedures or the European Commission not pushing things further than
the U.K. was ultimately prepared to allow them to go. The Cyprus
applications are a good illustration of what was at issue. The unease the
first application in the European Court caused was honourably
expressed by the prosecution advocate, the distinguished international
lawyer Professor Henri Rolin. In his speech to the European
Commission, Professor Rolin noted that it was a “paradox” which he
personally regretted that the first application should be against the U.K.,
“a country,” he was good enough to say, “which surely, more than any
other in Europe, has always shown concern for human rights” (p. 322).
I think there were even greater problems,140 for in my blunt way what I
would say happened was as follows. Greece brought this purportedly
legal case because of the emphasis which was being placed on “enosis”
(union) in the disturbed state of its domestic politics at this time. The
case was brought against a country, the U.K., which was trying to deal
with a “difficult and dangerous situation” (p. 1005) in a colony, Cyprus,
from which that country plausibly feared it could not withdraw without
a grave worsening of that situation. The situation was difficult and
dangerous in large part because of insurrection encouraged by the
complaining country. Greece’s position displayed, in my opinion,
hypocrisy of the highest magnitude, and to purport to base law on it is
ridiculous.
The outcome of the case was a fudge in which the U.K. did “pretty
well” (p. 1053), not because what it was doing in Cyprus was remotely
tolerable in normal conditions, but because respect for Convention
rights in the conditions obtaining could only have unduly hastened the
U.K.’s withdrawal, and this would in all likelihood have led to great
bloodshed between the Greek and Turkish Cypriots, and perhaps war
between Greece and Turkey. (And then, with NATO and the Warsaw
Pact at daggers sheathed in the wings, who knows what?)141 Simpson
140 I leave aside the problems which Professor Rolin himself may have felt as a citizen of
Belgium, “the paradigmatic case of a bad colonial power” (p. 52), prosecuting this case. During
the lifetime of King Leopold II, Belgian rule in the Congo did have killing, deliberate mutilation
of adults and children of both sexes, including cutting off hands and feet, and the grossest
economic exploitation, as normal features, and Victorian and Edwardian Britain played an
honourable role in exposing and remedying these by diplomatic means. Throughout his eminent
political career Professor Rolin was intimately concerned with Belgium’s conduct in the Congo
after the death of Leopold, and though I am anxious to stress that he should not be associated with
Leopold’s rule, the fact, of relevance here, remains that Belgium never extended the Convention
to the Congo (p. 6).
141 Nor has the U.K. eventually stepping out of the situation done much to resolve the
problem. As this is being revised for publication, the Greek Cypriots have just cast a pall over
Cyprus’ accession to the E.U. by overwhelmingly rejecting a U.N. plan for the reunification of
the island, a plan which the E.U. emphatically endorsed and the Turkish Cypriots accepted almost
as overwhelmingly as the Greeks rejected it. Gerald Butt, E.U. Dismay as Greek Cypriots Reject
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has claimed that the examples of the “possible effects” of the
Convention in Cyprus illustrate his belief that whilst it “has not
produced some sort of Nirvana” in Europe, “it has made things
better.”142 But it is impossible to square this with his scrupulously fair
presentation of the facts, in which the Greek application to the Court
was a “tendentious document” produced by a government “in reality
trying to annex Cyprus” which “had to try to present itself as merely
acting on behalf of . . . the international community” (p. 924).
Characteristically, Simpson does not square things by argument but
by rhetoric. The Cyprus case, he tells us, was a “traumatic event,” for
the U.K. believed the Convention was “something which applied to
other countries, not to the United Kingdom [which] was, as everyone
except a few perverse foreigners knew, the very home of liberty.”143
But this belief—which Simpson implies was an illusion—was, by any
comparative standard, substantially true (pp. 50-53). And the
characteristic left-wing attitude which makes it possible for Simpson to
say this, confident that doing so will save him the labour of reconciling
the story he is telling with his commitment to human rights
jurisprudence, is a barrier to carrying left-wing thinking into the
difficult areas it now must go.144
The 128 pages (chs. 18-19) which Simpson spends on what passes
for the jurisprudence of the Cyprus cases, including the first emergence
of the doctrine of the “margin of appreciation” (pp. 1000-05), merely
confirm that whatever good was done by Greece’s Convention
application was done by means which were diplomatic rather than legal,
and that this good was more than offset by the reduction of “law” and
“right” to obvious political fudge and compromise, at the inevitable cost
of bringing both into disrepute. Views along these lines at the time led
to arguments for various levels of withdrawal from the work of the
European Commission. Simpson, perfectly defensibly, does not discuss
this aspect of the matter outside of its diplomatic history, but he
obviously endorses the “courageous decision” (p. 933) to handle the
Unity Deal, SUN. TIMES, Apr 25, 2004, at 25.
142 Simpson, Usual Suspects, supra note 14, at 710.
143 Id. at 691.
144 Simpson also does this the other way around. That the colonies would, on independence,
automatically fall out of the Convention (pp. 844-5) merely points up the reality of the possibility
that, without the colonial power, things could get worse. Simpson notes this (p. 52), but often
avoids its implications by turning a light phrase. The Mau Mau episode rightly disgusts him, but
what was the result of Malawi’s independence? It was, in fact, a decline into repression as a
normal state. Simpson’s characteristic joke is that, “Nyasaland became independent as Malawi
on 6 July 1964 . . . not long after this, schooled by his colonial masters, Dr. Banda took to locking
up his political opponents without trial,” Simpson, Devlin Commission, supra note 14, at 52. Dr.
Banda clearly had a facility for what would now be called independent learning, for surely the
fact that he made himself dictator within five years of independence cannot be laid at the door of
his masters, who had eschewed anything approaching the arrangement Dr. Banda preferred some
three hundred years previously.
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Cyprus application as a legal matter, regarding those who countenanced
diplomatic retaliation, such as the head of the Foreign Office, Sir Ivone
Kirkpatrick, as “silly” (p. 894), “excitable” (p. 934), or verging on
“hysterical.”145 Simpson’s narrative does not, in my opinion, support
his conclusion; rather it supports the inferior legal status accorded to
international law in “the curious and archaic language of Austin,”146 and
“the rubbishing of formal guarantees of rights” (p. 35) in “Dicey’s
simplistic and impoverished discussion of the domestic protection of
rights” (p. 37).
The potential costs of Convention jurisprudence that face us now,
in addition to the public investment, are that it will prove inferior to the
international and domestic law it replaces, a possibility one rarely sees
countenanced in the typically messianic human rights jurisprudence.
But this possibility now manifestly threatens international relations,147
and the Human Rights Act threatens to realise it in the U.K. I have
mentioned that Lord Chancellor Jowitt was critical of the Convention.148
This was because he thought it “alien to the English constitutional
tradition, and subversive of it” (p. 18). Jowitt gets pretty short shrift
from Simpson. The gloss which he puts on Jowitt’s angry reaction to
finding that the Foreign Office was committing the Government to
major changes to the legal system without consulting his office (the
centre of the legal system) until the die was cast is that: “Jowitt was
now, with considerable ineptitude, conducting a rearguard action, as
champion of our lady the common law, against the convention although
he must have realized that the battle was already lost” (pp. 739-40).
Simpson describes Jowitt’s views as “intemperate,” “bizarre,”
“ideological,” and “misconceived” (pp. 740-41). This is unfair, and one
is sure Simpson would himself normally disapprove of this cheap way
of winning arguments against the deceased.
But it is here that the attitude displayed in Simpson’s formal
jurisprudence plays its role in underwriting his enthusiasm for human
rights. If the common law is a ramshackle system clinging to life when
it should have had the goodness to disappear some time ago, then, of
course, the costs of meddling with it by attempting to graft onto it an
alien jurisprudence are zero, and Jowitt’s views are as Simpson says.
But Simpson does not trouble to argue that this is so, and, in my
opinion, it is not the case.
Simpson clearly grasps that the thrust of the Strasbourg
145 Simpson, Makarios, supra note 14, at 398. Sir Ivone’s minute which is quoted here
certainly gives substance to Simpson’s view. Simpson scrupulously records that his view of
Kirkpatrick was not shared by his interviewees (p. 894 note 62).
146 Simpson, LTLH, supra note 3, at 362.
147 See infra note 182.
148 See text accompanying supra note 130.
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jurisprudence and of much other public international law is
“declaratory” (p. 818). Its edicts are not so much commands but
aspirations, and so, if this system is law, one can have a legal right
which is not a claim-right in Hohfeld’s sense. This obviously places
problems of consistency and effectiveness at the very heart of
international “law.”149 From my positivist perspective, I would say it is
hardly a defence of the Convention as law to show that the plethora of
contraventions alleged in the first Cyprus application (pp. 929-32) were
able to be dealt with only by being substantially fudged or ignored.
However, sufficiently sophisticated advocates of human rights are able
to draw on the declaratory nature of international law to put a positive
gloss on what one would have thought was the uncomfortable fact that,
were it held to the standard of enforcement we would identify with
positive law properly so-called, the Convention would have had to be
denounced by the U.K., or there would have been (hopefully only civil)
war over Cyprus.150
What value rights of this sort have in international relations is a
matter of legitimate dispute.151 What is also a matter of legitimate
dispute, though I think the matter clear enough myself, is whether
introducing such rights into the U.K. domestic legal system, especially
to the extent that, as the Human Rights Act encourages, they include
positive rights, will make that system worse than it now is. Most likely
it will lead to an immense growth of soft law which, because it is not
expected to be effective after the fashion of the positive law, cannot be
judged by the standards the U.K. has sought to apply to public
investments, and so will invite corruption in the way it has done in the
E.U.152 What is not a matter of legitimate dispute is that doing this will
involve significant disruption of the legal systems of the U.K. It is, I
would say, because he pays almost no regard to these points that it is
possible for Simpson to adopt the superior attitude so characteristic of
149 JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 106 (1998) (“[T]he party
who will enforce [international law] against any future transgressor is never determinate and
assignable”); see also id. at 105-07, 151-52. Some inkling of these problems (as taken up by
Hart) is given at the end of Brian Simpson, The Rule of Law in International Affairs, Maccabean
Lecture given to the British Academy (October 23, 2003). This lecture will be published in THE
PROCEEDINGS OF THE BRITISH ACADEMY. I am grateful to Professor Simpson for providing me
with a copy in draft.
150 Timothy H. Jones, The Devaluation of Human Rights Under the European Convention,
1995 PUB. L. 430.
151 Simpson has given a fascinating case study in his recent Maccabean Lecture, supra note
149.
152 See Stephen Grey, Tackling Fraud and Mismanagement in the European Union, Working
Paper, Centre for European Reform, London U.K. (2000), available at http://www.cer.org.uk/pdf/
cerwp6.pdf; Carolyn M. Warner, Creating a Common Market for Fraud and Corruption in
Europe, Working Paper RSC 2002/31, Robert Schumann Centre for Advanced Studies, European
Universities Institute, Florence, Italy (2002), available at http://www.iue.it/RSCAS/WP-Texts/
02_31.pdf, reprinted in 8 INDEP. REV. 249 (2003) (abridged version).
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advocates of human rights towards any hesitation about abandoning the
common law for the Strasbourg jurisprudence (p. 1101).153
VII. SOVEREIGNTY OF PARLIAMENT
I believe Simpson has foregone an important opportunity. A clear
line of development from his history of Empire in particular and much
of his other later historical work in general would be to see if he could
turn the informal sources of the corrigibility of the common law he so
convincingly describes into a theory to rival that of Llewellyn. This
would require the sociological deepening of his histories by drawing out
the informal sources of obedience to law and working them back into a
theory of legal reasoning.154 I hardly mean to criticise Simpson for
failing to accomplish what remains the main task of the sociology of
law, if not of jurisprudence tout court, but it is obvious that his basic
stance will handicap him moving in this direction. For if one seeks the
foundation of a legal system not in formal law but in its social
underpinning, one is obliged to give some credence to Dicey, and not
only has Simpson never had much time for Dicey155 but running down
sovereignty of Parliament is a major task Simpson sets himself in this
book (pp. 33-37).
Sovereignty of Parliament is one of those ideas (I used to
encounter them frequently when I was more occupied with social
theory) which has fallen into disrepute in its Anglo-American
expression but which enjoys great prestige in its continental versions.
That there is no control over a political society’s volition other than the
control that the citizens of that society themselves exercise is a thought
which animates, to take but one example, Rousseau’s claim that the
general will cannot be wrong.156 If one urged against Rousseau that
153 U.S. readers who may assume that the application of human rights jurisprudence will be
constrained by a concept of “state action” should appreciate that The Human Rights Act 1998
Section 6 opens the decisions of the Courts on matters concerning only private parties to the
Strasbourg jurisprudence. The dramatic potential of the “horizontal effect” of the Convention to
alter the law of England and Wales was, of course, never properly canvassed in advance and is
just beginning to be widely appreciated, but enthusiasts for the Human Rights Act confidently
predict that “it will exercise a magnetic force over the entire political and legal system.” Lord
Lester of Herne Hill Q.C. & Lydia Clapinska, Human Rights and the British Constitution, in THE
CHANGING CONSTITUTION 86 (Jeffrey L. Jowell & Dawn Oliver eds., 4th ed. 2000). On
horizontal effect as viewed by a zealot, see M. Hunt, The “Horizontal Effect” of the Human
Rights Act, 1998 PUB. L. 423.
154 E.g., PHILIP SELZNICK, THE MORAL COMMONWEALTH 448-55 (1992); see David
Lieberman, Philip Selznick and the Common Law Tradition, in LEGALITY AND COMMUNITY 119
(Robert A. Kagan et al. eds., 2002).
155 Simpson, The Common Law and Legal Theory, supra note 3, at 378; SIMPSON,
INVITATION, supra note 70, at 207; Simpson, Ideal Rule of Law, supra note 25, at 227-29.
156 JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT bk. 2, ch. 3 (1997).
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even the most thoroughly democratic decisions can be mistaken, one
would be regarded as being too obtuse to understand the argument;157
but the most ridiculous objections have been regarded as doing Dicey,
irreparable damage.158 These objections get off on the wrong foot
because, far from it being Dicey’s aim to show that Parliament could do
anything, he was acutely conscious that its powers were in fact
limited,159 and he defended sovereignty of Parliament in the belief that it
was the constitutional mechanism which best respected the limit of the
rule of law.160 What he denied, of course, was that these limits were
fundamentally legal;161 “the predominance of the legal spirit”162 in
conventions163 and public opinion164 is the foundation of Dicey’s
constitutional architecture:
the freedom from legal interference which Englishmen actually
enjoy results from the prevailing tone of public sentiment rather than
from the nature of our laws.165
Far from being ridiculous, to those who place importance on “law in
context,” including, one would have thought, Simpson the historian,
such a theory is at least methodologically plausible.166
157
158
Id. at bk. 2, ch. 6, para. 10.
For example, giving a list of institutions (E.U., devolved assemblies, Bank of England,
etc.) that have constitutional significance in addition to Parliament, King argues that “it is
abundantly clear that the British system is now a far less government-centred system than it was.
Power in the state is far more widely diffused. Whatever Dicey may have said a century ago,
there is no longer a single ‘sovereign’ anywhere in our constitution.” ANTHONY KING, DOES THE
UNITED KINGDOM STILL HAVE A CONSTITUTION? 96-97 (2001). It is not that King’s empirical
claim is, far from being abundantly clear, highly questionable to say the least. Nor is it that it
rests on ignorance or disregard of what Dicey actually said, which precisely is that Parliament is
not “politically” sovereign. DICEY, supra note 8, at 73; see T.R.S. ALLAN, CONSTITUTIONAL
JUSTICE 13-21 (2001). It is that King would not dream of taking his “list of . . . power bases” to
be a refutation of Rousseau’s claim “that sovereignty is indivisible.” Rousseau, supra note 156,
at bk. 2, ch. 2.
159 DICEY, supra note 8, at 71.
160 Id. at 406.
161 Id. at 72.
162 Id. at 195.
163 Id. at pt. 3.
164 A.V. DICEY, LECTURES ON THE RELATION BETWEEN LAW & PUBLIC OPINION IN
ENGLAND DURING THE NINETEENTH CENTURY lecture 1 (2d ed. 1914).
165 A.V. Dicey, The Legal Boundaries of Liberty, FORTNIGHTLY REV., Jan. 1, 1868, at 1.
166 To the extent I understand the literature, the stress on “governmentality” which a
significant number of sociologists are tracing to Foucault seems to me to be making basically the
same point. Certainly the following, from an acute analysis of the impact of “the new public
management” reforms on the morale and ethos of those in (Australian) public service, is close to
what I would say of the similar reforms in the U.K., “the more one appreciates what the ethos of
office involves, the more difficult it is to give it official or constitutional status.” Jeffrey Minson,
Ethics in the Service of the State, in GOVERNING AUSTRALIA 47, 66 (Mitchell Dean and Barry
Hindess eds., 1998). However, in the not too distant past even those involved in British
government could reach a similar conclusion without the benefit of the Foucauldian apparatus.
E.g., R.H.S. Crossman, The Theory and Practice of British Freedom, in THE POLITICS OF
SOCIALISM 3, 19 (1965): “[I]n a very real sense, British political thought is based on morality and
works through custom. The constitution is impossible to analyse fully because it is a medley of
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Dicey’s theory does not (indeed cannot) deny the possibility of
entrenched rights, but insists that the entrenchment cannot be absolute
and therefore that its value must be open to question: “[t]here is no
difficulty, and there often is very little gain, in declaring the existence of
a right to personal freedom. The true difficulty is to secure its
enforcement.”167 It is an obvious corollary of Dicey’s position to fear
that entrenchment leads one to have too much confidence in the legal
effectiveness of entrenched rights and therefore to pay insufficient
attention to the personal and political foundations that ultimately matter.
If, as I predict, declaratory human rights jurisprudence is so woolly and
transparently political that its widespread domestic use will undermine
existing respect for the positive law in the U.K., this will be a disaster
for liberty.168
Dicey’s criticism of the socialistic tendency he detected in late
Victorian legislation as undermining the rule of law was based on an
argument like this.169 It is surely arguable that it was the refashioning of
public law, in defiance of Dicey, to give a green light to government
action to maximise the social welfare function that has led us to the
point where government so behaves that something like the Human
Rights Act seems needed.170 Serious human rights criticism of Dicey
must involve detailed discussion whether a legal alternative would
protect liberty more thoroughly than the limitations on sovereignty he
thought would do this, and Simpson puts forward an excellent criticism
of Dicey’s treatment of martial law171 of this quality (pp. 58-66). But
Simpson’s general attitude to Dicey is not of this standard, and indeed I
am unable to follow his criticism that Dicey made no use of the concept
of convention “to explain the protection of liberty” (p. 36), which comes
immediately after his discussion of Dicey’s belief that the right of
personal liberty “is one which cannot be destroyed without a
thoroughgoing revolution in the institutions and manners of the
nation.”172
traditions and statutes and institutions integrated only by instinctive obedience to ‘the rules of the
game.’”
167 DICEY, supra note 8, at 221.
168 As this paper was in press, an authoritative review of the U.K. experience of the Human
Rights Act has largely confirmed that these fears are well grounded. K.D. Ewing, The Futility of
the Human Rights Act, 2004 PUB. L. 829.
169 Dicey, supra note 165.
170 Patrick Devlin, The Common Law, Public Policy and the Executive, 1956 CURRENT LEGAL
PROBS. 1; see CAROL HARLOW AND RICHARD RAWLINGS, LAW AND ADMINISTRATION chs. 2-4
(2d ed. 1997). A very important but neglected issue which I cannot pursue here, but on which the
book under review provides much fascinating material, is the extent to which the Convention was
resisted by the post-war Labour Government because, as it then stood, the Convention was
perceived as inimical to the extensive economic planning on which that Government was
embarked. See, e.g., id. at 728 (Sir Stafford Cripps); id. at 740 (Lord Chancellor Jowitt).
171 DICEY, supra note 8, at ch. 8.
172 Id. at 201. The footnote numbering goes awry at this point in the book under review and
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It should not be necessary to say that one would not now wish to
defend all of Dicey’s views,173 but he shows that an adequate account
not only of human rights but of a legal system must involve a statement
of non-legal elements which are sociologically prior to laws properly
so-called. For all the criticism to which Dicey has been subjected, his
stress on manners, customs and conventions continues to expose the
sociological naiveté of legal reasoning which is satisfied with the law in
itself, of which human rights proselytism is the most important leftwing form. It is by no means impossible for relatively entrenched
human rights to be advocated by those who are capable of giving such a
sociologically sophisticated account, but it has proved difficult for
proponents of human rights to do the reverse, for doing so rather cuts
against making a great fuss about the marvels law can do for you when
much advocacy of human rights is full of this sales patter.
Nevertheless, an adequate policy towards entrenchment must rest
on sociological jurisprudence, something I feel Simpson effectively
concedes throughout his entire book, very strikingly when he shows
how feeble the U.S.’s contribution to international human rights
diplomacy has been by comparison to the U.K.’s (p. 822), and when he
tells us that it was “the official culture current in British governmental
circles . . . which . . . was powerful enough to rule out in Britain
anything resembling the McCarthy witch-hunt in the USA” (p. 832).174
However, if one accepts points like this,175 the further embarrassment
arises that if one is to trace the sociological jurisprudence of respect for
liberty to its modern foundations, one finds that it is not only Dicey who
has regarded the predominance of the legal spirit as “a special attribute
of English institutions”;176 one finds a line of important “witnesses from
other countries”177 reaching back to Montesquieu admiring the British
the reference to this quotation is missing, but it is also at p. 201 of the 1952 reprint of the ninth
edition which Simpson uses, the text having been established in the seventh edition of 1908.
173 It is the shortcomings of Dicey’s attempt to relate legal (in this sense institutional) to
political (in this sense actual) sovereignty that are of relevance to our concerns here, which
Simpson discusses in terms of the restrictions imposed by Dicey’s “emphasis on the law of the
constitution” (p. 36). But shortcomings of this nature are identified in every political theory of
the first rank: on Rousseau see THOMAS HILL GREEN, LECTURES ON THE PRINCIPLES OF
POLITICAL OBLIGATION paras. 64-79 (1986).
174 In 1949 Orwell provided a list to the B.B.C. of those he felt were, in various degrees, so
sympathetic to communism that they should not be employed in anti-communist broadcasting,
and, by curious coincidence, this unsavoury episode has just been likened to McCarthyism by
Corin Redgrave, whose father Michael was on the list. See Corin Redgrave, Idealists and
Informers, GUARDIAN (London), June 28, 2003, at 35 (Review).
175 Lord Lester avoids the embarrassment by blithely dealing with U.S. rights jurisprudence at
a formal level only. See Lester, Fundamental Rights, supra note 6, at 47-48; Anthony Lester
Q.C., The Overseas Trade in the American Bill of Rights, 88 COLUM. L. REV. 537 (1988).
176 DICEY, supra note 8, at 195.
177 HON. LORD HEWART OF BURY, THE NEW DESPOTISM 24 (1929).
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in this way.178
Acquisition of a knowledge of the history of his subject may,
therefore, have spared Mr. Wilmot-Smith his pitiable disenchantment,
for he would have seen that his belief that Britain’s claim to be a home
to liberty is an illusion is the product of his own ignorance and
masochism.179 Who knows but that if one evaluates the episode
Simpson describes in a balanced way one may even be able to see some
virtue in the following, which, though it is anathema to left-wing legal
studies,180 captures a sound view:
The essence of the rule of law ideal lies . . . not in “law” narrowly
defined, but rather in the supremacy of certain ethical convictions,
certain rules of decency prevalent in the community, and in the fact
that those who are at the apex of power share those convictions and
feel bound to conform to them. A duly enacted statute to liquidate
the Opposition would violate “the rule of law” not (as it were)
because it wasn’t ‘law’, but because it wasn’t ‘cricket’.181
CONCLUSION
In sum, the plausibility of the attack on the common law Simpson
mounts in this remarkable book is undermined by the contradiction
between the disdain for the common law expressed in its tone and the
effective defence of that law in the historical testimony; a contradiction
reproduced between Simpson’s formal jurisprudence and his other
historical work. However, the ability to perceive this contradiction
depends on one’s background attitude to the state, and Simpson is the
178 CHARLES DE SECONDAT BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS bk. 11, ch.
6; bk. 19, ch. 27 (1989). See also Eugen Ehrlich, Montesquieu and Sociological Jurisprudence,
29 HARV. L. REV. 582, 590-94 (1916). Simpson (p. 28) has Blackstone deriving the separation of
powers from Montesquieu but does not mention that Montesquieu based the notion on his
observation of the 1689 constitution, a consideration which obviously did not burden the Prime
Minister when deciding upon his recent constitutional demolition-work. For Dicey’s views on
this point see DICEY, supra note 8, at 337-39.
179 In my opinion it was necessary to Thompson’s ability to talk positively of the rule of law
that he was one of the very few left-wing English intellectuals since Orwell who, as will be seen
in the text accompanying infra note 185, was brave enough to avow British patriotism. E.P.
Thompson, A State of Blackmail, in WRITING BY CANDLELIGHT 113, 130-31 (E.P. Thompson ed.
1980). The advice of a former colleague who has read this review in draft leads me to add what I
would have hoped it quite unnecessary to add, even were Professor Simpson’s record of military
and public service not so distinguished: that I do not remotely intend to impugn Simpson’s own
patriotism.
180 DAVID FRASER, CRICKET AND THE LAW (1993). Orwell’s comments on cricket are in
stark contrast. See George Orwell, Raffles and Miss Blandish, in 16 COMPLETE WORKS 345,
347-48 (Peter Davidson ed., 1998). (Raffles, “the gentlemen thief,” was a slow bowler who
sometimes gained access to great homes from which he then stole by being chosen for exclusive
amateur cricket elevens).
181 Julius Stone, Law, Force and Survival, 39 FOREIGN AFF. 549, 549 (1960-61).
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product of his time in that he assumes that, the end being good in leftwing eyes, the (il)liberal use of the state will move us towards this end.
Radical alterations therefore can be proposed to the common law
without much fear of their possible adverse consequences.
Even if I am right in identifying this shortcoming in this book, it
hardly detracts from the quality of this enormous work of high
scholarship. But it is important if a very powerful critic of the common
law attacks that law at a vulnerable point and the critique is a damp
squib. A parallel can be drawn with Weber’s England problem; let us
call it “Simpson’s British Empire” problem: what do we do when, now
disgusted by Empire,182 we have to face the fact that the common law
ran Empire creditably well? If the British Empire problem does not have
the universal significance of the England problem, this is not a criticism
of Simpson but of the bathos of British left-wing legal scholarship.
Simpson is illuminating a problem which Orwell identified half a
century ago which still undermines much of that scholarship: “[i]nstead
of taking the mechanically anti-British attitude which is usual on the
left, it is better to consider what the world would really be like if the
English-speaking culture perished.”183 Is there any value in Orwell’s
solution, proposed in 1941 in The Lion and the Unicorn:
Cutting across the ordinary classifications [this book] insists that
England,184 like all great countries, has its own peculiar destiny, and
182 There is, however, a striking contemporary parallel between the grotesque condescension
of imperial responsibility and the current hortation of the forcible imposition of “tolerance” on
foreign religious and ethnic groups by the proselytisers of international human rights. See, e.g.,
POWER, supra note 123. Power and her ilk would, one thinks, be obliged to agree with Sir James
Fitzjames Stephen that it was to the credit of the imperial British that “They have forced upon the
people [of India], utterly against the will of many of them, the principle that people of different
religions are to live at peace with each other, that there is to be no fighting and no oppression as
between Mohammedans and Hindoos, or between different sects of Mohammedans.” JAMES
FITZJAMES STEPHEN, LIBERTY, EQUALITY AND FRATERNITY 38 (Stuart D. Warner ed. 1993).
However, Power and many current commentators have more than sufficient resources of
hypocrisy to avoid frank speaking of this sort. Stephen, on the other hand, though committed to
imperial responsibility, had an extremely clear view of the basis of imperial rule and the attitude it
required of those administering it. As he put it in a letter to TIMES (London), March 14, 1883, at
4:
[British imperialism] is essentially an absolute government, founded, not on consent,
but on conquest. It does not represent the native principles of life or of government,
and it can never do so until it represents heathenism and barbarism. It represents a
belligerent civilisation, and no anomaly can be more striking or so dangerous, as its
administration by men, who being at the head of a Government founded upon
conquest, implying at every point the superiority of the conquering race, of their ideas,
their institutions, their opinions and their principles, and having no justification for its
existence except that superiority, shrink from the open, uncompromising,
straightforward assertion of it.
See K.J.M. SMITH, JAMES FITZJAMES STEPHEN, PORTRAIT OF A VICTORIAN RATIONALIST
(1988); ERIC STOKES, THE ENGLISH UTILITARIANS IN INDIA (1959) (quoting and discussing the
letter at 288).
183 Orwell, supra note 31, at 429.
184 It is to the U.K. that Orwell refers in this way.
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that the importation of foreign political methods and habits of
thought has been a disastrous error. Against the conventional
patriots it urges the [necessity] of far-reaching social reconstruction;
against the conventional left-wingers its urges the uselessness of
aiming at any version of socialism that does not take account of
English history and character. It sets out, in its own words, to
reconcile patriotism with intelligence.185
That aspect of English-speaking culture which human rights
jurisprudence now threatens is liberalism, and that this threat is growing
is curious. In the other disciplines with which I am familiar—
economics and some parts of social theory—creditable advocates of
change are abashed by the results of the twentieth century’s major social
engineering projects and now propose reform cautiously. It is only in
the law that one still sees significant backing being given to major
changes proposed without appreciation of their costs, the (European)
human rights movement being the principal case. The attractions of this
movement to those who have an inkling that they would be laughed to
scorn were they to explicitly propose the planning of the economy are
clear: they can pose their ambitions in the form of wide-ranging positive
rights which make resource allocation a political (masquerading as a
legal) rather than an economic issue. This attempt to use the “force” or
“closed” nature of law to push through arguments the substance of
which cannot be defended is an unpleasantly prominent feature of much
left-wing legal writing.186
It seems that there are some historiographical criticisms which
could be made of Human Rights and the End of Empire: about being
careful to avoid both the wisdom of hindsight and applying the moral
criteria of one’s own time to the time one is studying. They hardly hurt
this book, which is the most striking instance of an historian’s
objectivity triumphing over what one feels he would have liked to say
that I have read since Richard Pipes’ history of the Russian
Revolution.187 For this reason, this book, against the author’s intention,
strengthens my belief that we should recognise that there are no legal
limits on absolute power; that the only limits there are are those we
place on ourselves by our individual and collective wills; that these
limits are issues of morality and political morality, not law; and that the
best legal system would be one which made the necessity of self185 This passage is taken from the dust jacket of the first edition which does not appear to be
reproduced in the COMPLETE WORKS but is reproduced by Bernard Crick in his introduction to
the 1982 Penguin edition at 30.
186 David Campbell, Bringing Law and Lawyers to the People: Statism and Anarchy in Leftwing Legal Thought, 11 SOC. & LEGAL STUD. 413 (2002).
187 See Richard PIPES, THE RUSSIAN REVOLUTION 1899-1919 (1990); RICHARD PIPES, RUSSIA
UNDER THE BOLSHEVIK REGIME 1919-1924 (1994). The anti-communist rant Pipes’s qualities as
a historian would not let him write is not entirely denied to us. See RICHARD PIPES,
COMMUNISM: THE VANISHED SPECTRE (1994).
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legislation actual in the Hegelian sense. If one looks for a legal system
that at its heart has contingency about being right, and therefore caution
about what one can and should ask the law to do, one is obliged to think
of the common law,188 the weaknesses of which in the eyes of the
proselytisers of human rights are, in my opinion, a potential source of
great strength.
With regard to the law of emergency powers, all the Strasbourg
jurisprudence I have read does not seem to me to contain a fraction of
the honesty, theoretical clarity or practical wisdom of the distillation of
a Diceyan view in the following paragraph from Hayek:
[G]uarantees of individual freedom . . . cannot mean more than that
the normal running of society is based on them and that any
departure from them requires special justification. Even the most
fundamental principles of a free society, however, may have to be
temporarily sacrificed when, but only when, it is a question of
preserving liberty in the long run, as in the case of war . . . the need
of such emergency powers of government in such instances (and of
safeguards against their abuse) . . . can hardly be disputed. But if the
rule of law is to be preserved, it is necessary that such actions be
confined to exceptional cases defined by rule, so that their
justification does not rest on the arbitrary decision of any authority
but can be reviewed by an independent court.189
In the book under review and in In the Highest Degree Odious, Simpson
shows that the U.K. has not maintained this standard, but I do not see
anything wrong with the standard, whereas I do see something very
wrong with setting a higher standard that cannot be met.
If, as it appears, the common law has, at the very least, been no
worse at protecting liberty than any alternative system, one would be illadvised to plump wholeheartedly for another system when, by doing so,
one threatens what one has. It certainly is not enough to show the
common law is deficient to make out the argument for adopting a
radical alternative. In Human Rights and the End of Empire, one of the
best critics of the common law takes this ill-advised line whilst, to his
enormous credit, providing considerable evidence that it is, indeed, illadvised.
188
Carol Harlow, Export, Import: The Ebb and Flow of English Public Law, 2000 PUB. L.
240.
189
FRIEDRICH A. VON HAYEK, THE CONSTITUTION OF LIBERTY 217 (1960).