Hale's Resolutions - modified

Readers who have delved into Lord Thomas Bingham's excellent book, "The Rule of Law" would no doubt have been introduced to Sir Matthew Hale in Chapter 2. Hale was noted as a jurist and legal researcher, and his Analysis of the Common Law was influential on Blackstone's Commentaries.

 Bingham (Ch 2 (5)) quoted Hale's Resolutions, a list of 'Things Necessary to be Continually had in Remembrance'. 

Having given some thought to these resolutions, I had in mind that some were too antiquated to stand in a modern world, though they were likely to have been adequate in Hale's time. Resolutions 1 and 3, I reject in their entirety; God has no business in the administration of justice; neither King nor Queen. The Law should stand above all and no man should answer to more than the Rule of Law and his conscience. 

Having these thoughts, and similar, in my mind, I decided to rewrite Hale's list to fit my own thoughts and also to 'modernise' them to fit in with today's world/knowledge. 

1.    That in the pursuit of justice, I am bound by the Rule of Law and my conscience, and in seeking justice I will do so:

2.    With

a.    Forthrightness

b.    Purpose

c.    Tenacity

d.    Regard that the path to justice may not be easy or quick; but

3.    I will be prepared to do right, and my best endeavours will not be withheld for lack of trying; and

4.    I will be passionate about my cause but not a slave to my passions, or fall to them however provoked; and

5.    Focus my attention and energy to the business at hand; and

6.    Never prejudge before the entire matter is done and over with; and

7.   Recognise that bias and paucity of thought are my failures and no one else’s; and

8.    That discretion and compassion and mercy are equally part of justice and law as much as punishment and rehabilitation; and

9.    Law should not give way except and only to conscience and justice; and

10. That the law is supreme except as conscience and justice demands it to bend or fall.

Keeping in mind that I do not administer justice (Hale was a judge) but intend to practice law, resolution 1 is therefore clear in stating 'the pursuit of justice'. Note too, that 'justice' does not imply a "win at all costs" stance on behalf of a client. The aim should be to give your best, but if your client is guilty, then justice should still be administered by those so charged. The Rule of Law and your conscience should be your guide in doing what is right, and your best.

     Bias and paucity of thoughts refer to defects in thinking in yourself, and therefore has no one else to blame . This is where I am a strong believer in critical thinking. While studying law introduces elements of critical thinking, it does not go far enough on its own to really eliminate defective thoughts. Critical thinking is best practiced after studying it as a subject by itself.

     Resolutions 9 and 10 refer to conscience. Note that in this instance the conscience referred to is not my conscience as in Resolution 1, but is a reference to a 'collective' conscience (of society). So what was the law in instances such as permissible marital rape, outlawing homosexuality etc fell to the collective conscience of society through the judges administering what is right. The law as it stood then fell to the changes in society. This is what I mean by conscience.

     Thus, Resolution 1 is a reminder that if a law is unjustifiable (to a client or society), then I consider it a duty to argue for it to be changed or discarded. Resolution 10 then becomes clear in its intention.

      Any thoughts?

Human Rights – Part 5:

Reminder: What are human rights?

If we go back to Part 2, Shestack (1986) described rights as:

“an array of legal relationships. Rights can be seen as entitlements, immunities (from having a legal status altered), privileges and powers (e.g. to create legal relationships)."

Entitlements

Immunities

Privileges

Powers”

Human rights constrain governments to act in a certain way. The government’s behaviour is moderated to the extent that the government ought not (pay attention to these words) breach your rights without lawful authority. The government is also, to a certain extent, a guardian of rights, in that it has ‘agents’ in place to assist the general public to protect and assert their rights, for example, the police, and the judiciary. Keep in mind though, that the responsibility lies with those whose rights are breached to take action, to assert their rights.

The law, like equity, “aids the vigilant, not those who slumber on their rights”.

Human rights are encapsulated in the Universal Declaration of Human Rights (UDHR) but students should keep in mind that rights vary from place to place, culture to culture. One argument against the UDHR is that it encapsulates the ‘Western’ idea of rights and the issue of rights is further complicated in that every individual has an opinion on this topic.

“These views are influenced by upbringing, culture, religion, friends and family, among other factors. The most difficult aspect of freedom has always been that the concept requires us to recognise that other people have ideas that may not align with our own. This tension is demonstrated by movements underway to try and reframe certain civil rights, such as the right to private life as exercised by members of the lesbian, gay, bisexual and transsexual community, as infringements of religious freedom (Michaelson, 2013). The landscape of rights is continually shifting.”

© The Open University, 2014

Given the above then, now is a good time to remind readers/students that this LLB is about law in England and Wales, and therefore considers all topics as the law is currently applied here.

Why law?

It is quite common to hear expressions such as, “That is my right!”, “I have the right to [insert comment of choice here, such as ‘free speech’]”, “I have the right to privacy”, and so forth. So, to those who frequently trot out this phrase, I ask this question:

“What is a right?”

How many readers can answer that question? How many will have to turn to Google, or use a legal dictionary? Where do rights come from? Rights are such a fundamental thing; everybody has them, governments and courts must respect them, yet the percentage of people who can answer that question is very small.

As a person pursuing an LLB in law, I admit that I find law to be a fascinating subject. I also admit not everyone will. My purpose for writing this column though, is not to “teach” law to the readers of this website/column. What I hope to achieve is to provide some clarification of how the law works as related to issues that we see in the news daily. Far too often, the layman does not understand the concepts and principles behind the law, and there is a public outrage when behaviour does not conform to what we perceive as being “fair”. It’s the nonsensical opinions that are promulgated that stoke anger, racial hatred and other intolerance.

Before embarking on my law journey, I was one of the blissfully ignorant. Ignorant because I did not know, and blissful because my ignorance permitted me to expound views on matters I did not understand… much like many persons today. We see it daily in letters to the editors of newspapers, and contributions to online forums and even in complaints when we feel aggrieved. Later, in a subsequent column, I will come to the ‘invincible ignorant’, and how they differ from the ‘mere’ ignorant.

Law is evolutionary. It evolves in small increments as society sees fit. At the heart of the law lies the principles of fairness, justice, equity, and equality but also principles of punishment and deterrence for wrongdoing – to prevent harm to others. Law is a method of social control, clamping down on aberrant behaviour that bring harm to others and where harm has occurred, it punishes the perpetrator and tries to compensate the victim adequately and fairly.

Law is based around the society. The truth of this statement can be seen from the different legal systems around the world, which are influenced by culture and religion, as well as political agendas. In the following questions, I use the word ‘right’ to mean whether we think it is fair and ethical. By which/whose yardstick do we measure ‘rightness’ or ‘wrongness’?

Is it right to bury persons to the neck and throw stones at the head until they are dead? Is it right to throw a homosexual person off 12 storeys? Is it right to hang a person if there is a possibility that he is innocent? Is it right that the police can frame a person to satisfy crime statistics? Is it right that abortion is illegal/legal? Is it right for the Catholic Church to ban condom use while tens of thousands of deaths could be prevented by using a condom? Is it right for a man to ‘marry’ and have sex with a 12 years old girl?

When we understand how the law works, we can understand the reasoning behind court judgments and recognise the logic and legal principles Judges use to arrive at their decisions. We can also understand matters of public policy, politics, arguments (not quarrels but rather units of critical thinking). We can understand the need for contracts and courts, we can understand what a crime is and why it is a crime. We can understand the need for laws and why we should obey the law, and what penalties apply if we don’t. We even understand why the penalty is what it is and whether it is fair.

When we understand how the law works, we will understand when and how to express an opinion, based upon evidence and persuasive arguments.

Oh, as for what is a right? I’ll leave you to work that one out.

Human rights – torture and terrorism

The topic of terrorism and whether or not torture is permitted against those so accused is a topic that is rife with complications and arguments back and fought. Sadly, the debate usually becomes emotional and intellectual reasoning falls at the wayside all too frequently. When it comes to human rights, the rule of thumb to remember is that rights apply to all not just the one! So think of yourself, your neighbour, your family and what rights apply to them, and then apply those same rights to those accused of terrorism and/any other crime. Keep in mind that The Rule of Law applies in all circumstances.

Keep in mind as I have said before in my post on the Rule of Law: 

State intervention usually means the rule of law can be bent, twisted or downright broken. A case in point is the intervention of the State in Germany that led to Nazism and WW2.

So, we can see that the State has an important role to play in upholding rights and preventing abuse of power, even when involving terrorism and terrorists.

Yet, following major terrorist attacks such as September 11, 2001 (9/11) in the USA and July 7, 2005 (7/7) in London, many states began to take a relaxed approach towards the prohibition of torture. Usually, the explanations given is that the relaxation is in the interests of national security.

Protecting rights is not always easy as it means protecting those who are often despised by society and governments. The UK, for example, has been criticised by civil society organisations for taking a more relaxed approach to the prohibition against torture when dealing with suspected terrorists (Human Rights Watch, 2006).

© The Open University

For a more comprehensive look at how terrorism changed the landscape of human rights, I recommend Chapter 11 of The Rule of Law by Tom Bingham. It is interesting to note that the USA and the UK differed in three ways when dealing with terrorism:

1. The USA treats terrorists as war combatants while the UK treats them as criminals. This makes a great difference in applying the law.
2. The USA Congress passed a Presidential Military Order which authorised detention of suspects at any designated location worldwide with no guarantee of a trial, and if tried, it would be before a military commission where the standards of evidence was lower than applicable in ordinary courts and where the death penalty could be imposed. In contrast Westminster Parliament did not confer any comparative powers on the executive in Britain.
3. The UK courts cannot try a defendant brought into the country by rendition (unlawful seizing of a person in one country in order for him to stand trial in another country) because this is a breach of international law and is regarded as a blatant and extreme failure to adhere to the rule of law. In contrast, the US courts does not care how the defendant appears before it.

Further discussion is outside the scope of this level of the LLB.

Human Rights – torture

What is torture?

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 ("the convention") provides us with the definition:

"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

(Article 1 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984)

Article 2(2) goes on to say:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.

(Article 2(2) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984)

"No exceptional circumstances whatsoever…" makes it very clear that the right not to be tortured or suffer other cruel, inhuman or degrading treatment or punishment is an absolute right. (See previous post). Again note: just because it is an absolute right does not mean that it never happens! Call it what you like, many of the "enhanced interrogation techniques" of the USA is torture.

As can be seen, the definition of torture is broad and covers a wide range of "treatments". Forms of ill-treatment which have been found to amount to torture, either alone or in combination with other forms of treatment, include:

• Falaka/falanga: beatings on the soles of the feet
• Palestinian hanging: suspension by the arms while these are tied behind the back
• Severe forms of beatings
• Electric shocks
• Rape
• Mock executions
• Being buried alive
• Mock amputations

There are, however, also many ‘grey areas’ which do not clearly amount to torture, or about which there is still disagreement, but which are of great concern to the international community. Examples include:

• Corporal punishment imposed as a judicial penalty
• Some forms of capital punishment and the death-row phenomenon
• Solitary confinement
• Certain aspects of poor prison conditions, particularly if combined
• Disappearances, including their effect on the close relatives of the disappeared person
• Treatment inflicted on a child which might not be considered torture if inflicted on an adult

(Giffard, 2000, pp. 13–14)

(c) The Open University

The prohibition of torture impacts on other legal issues, such as the evidence that can be used during a trial as well as the capacity of states to deport or extradite individuals to other states where they may be at risk of torture. Torture is criminalised by s134 Criminal Justice Act 1988 and the UK is signatory to the convention. The prohibition of torture exists at all levels of legal relations – domestic, national, and supranational.

Next: Torture and terrorism

Introduction to Human Rights – part two

So what are human rights? To answer this I will jump for a moment into W102.

There is no formal definition of human rights – however, "’The jurisprudence of human rights’ (Shestack, 1986)" describe rights as "an array of legal relationships. Rights can be seen as entitlements, immunities (from having a legal status altered), privileges and powers (e.g. to create legal relationships)."

• Entitlements
• Immunities
• Privileges
• Powers

Of the above, can we say if any take precedence over the others? There is no fixed hierarchy of human rights. However, it has been observed that Western countries prioritise civil and political rights over economic and social rights, whereas in Third World and communist countries the reverse is true.

So where do our rights come from? Shestack again identified five sources of rights:

• theology (religion) – from religious texts.
• natural law – based upon "the law of nature", identified in the writings of Aristotle and John Locke.
• Positivism – rights derived from the laws of the state. Writers such as Jeremy Bentham focused on what rights are actually written into the law rather than what ought to be rights.
• Marxism – collective rights (of the society) are given preference as opposed to individual rights.
• The sociological approach – perspectives developed from the rise of social sciences.

The above was included to avoid confusion at this stage, but will be encountered again in W102.
Rights can be broken down into three categories:

1. Absolute Rights – these are rights that may never be breached under any circumstances, even under the conditions of war. For example, the right not to be a slave is an absolute right (‘No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms’ (article 4 ECHR). Note: just because it is an absolute right does not mean that it never happens!
2. Limited rights – these rights have specific limitations built into the rights themselves. For example, ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court’ (Article 5 ECHR).
3. Qualified rights – may be restricted to protect the rights of others or the interests of the public. For example,‘Everyone has the right to freedom of peaceful assembly ... No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society’ (Article 11 ECHR).

Most human rights are qualified rights. They may be restricted only to the extent necessary, and any further restrictions may be challenged by the judicial process.

Human rights may be separated into different categories:

Civil rights – Rights that protect individual liberty and secure equality under the law. These are often viewed as private rights and are in place to ensure dignity.

Political rights – Rights that ensure participation in the political process.
Cultural rights – Rights that ensure cultural identity can be preserved and practised.
Social rights – Rights that ensure equal participation in society.
Economic rights – Rights that concern economic security and independence in the workplace as well as in society.
(C) The Open University

Note: even though I have listed the categories above, does not mean that these rights are in a hierarchy. See paragraph 3. Rights may intersect in different categories as well. Human rights are usually described as being indivisible, interdependent and interrelated. For example, in order to exercise the right to vote an individual also needs basic literacy to read a ballot (right to an education). Additionally, states may create/identify new rights within its legal system.

Next: a discussion on torture.

Introduction to human rights – part one

Reminder: W101 is an introductory course to law. It is designed to introduce legal concepts to students who are entering law for the first time and it does not delve deeply into any single topic at this stage.

Unit 9 deals with human rights.

Learning outcomes

After studying this unit you should be able to:

• discuss the legal foundations of human rights
• explain the different sources of human rights
• demonstrate a basic understanding of the European Convention on Human Rights 1950
• demonstrate a basic understanding of the Human Rights Act 1998
• explain the relationship between the Human Rights Act 1998 and the European Convention on Human Rights 1950
• explain how rights are enforced at different levels.

(c) The Open University.

You may often hear people speaking about their "human rights". What do they mean by this? Would it surprise you to know that often, the people who speak about their human rights, and who argue on grounds of human rights, do not often understand what is a right? Next time someone is in an argument with you, and says something like, "I have a right to…" or "That is against my human rights…", ask the question, "What is a right?" and watch how they fumble for an answer. Hopefully, you will better understand human rights after reading about it here, and be able to explain.

Human rights are very difficult to define. It is easier to recognise a human right, than to say what it is. W101 does not define a right, but rather introduces the concept of human rights by looking at where and how they arise. Before we proceed, let us look at some human rights that may be familiar to you. Keep them in mind as you read along, and see whether or not you can determine when the right was first recognised.

• right to life
• right to education
• freedom of expression
• freedom of assembly and association
• freedom of thought, conscience and religion
• right to marry
• right to respect for your private and family life and home correspondence
• right to free elections
• right to liberty and security
• prohibition against slavery or forced labour
• prohibition against torture
• prohibition against discrimination
• right to a fair trial.

(C) The Open University

Human rights have been recognised historically by philosophers and rulers for centuries. Socrates and Plato have contributed toward recognising human rights by their writings. Chances are you have also heard of the Magna Carta. These are just examples of where rights were recognised within our human history. Just to be clear, it is extremely difficult to pinpoint when in history, human rights were first recognised. It is easier to think of it as an ongoing, developing process. Keep in mind too that the source of human rights is often steeped in controversy.

Modern human rights started after the Second World War. In an effort to avoid the horrors that the war brought about, the United Nations adopted the Universal Declaration of Human Rights (UDHR) on 10 December 1948.

Point to note: human rights apply to everyone! It is a very difficult concept for people to understand and accept that murderers, terrorists, paedophiles and the worst criminals do have the same rights as everyone else.

Human rights are very complex, a combination of natural and legal rights. Natural rights are described as those that we have because we are human, and legal rights are those laid out in law. We have rights that are derived from religious sources, philosophy, et cetera.

To be continued…