Tuesday, November 15, 2011

When our hair was black

In the course of considering the alleged naivety of Jonathan Sumption (UKSC blog 9 November 2011) I reached for my copy of "Equality" by Joseph and Sumption, which when it was hot off the press I reviewed for the University of Auckland students' newspaper in 1979.

Those were the days when Sumption's hair was black, as indeed was mine. Here is mine:

His was more flamboyant:

The book is an argument against taxation-imposed redistribution of wealth. The UK was then in the grip of rampant taxation of the rich. The authors' style has a formidable clarity that is only available to the very brilliant.

But although I now forget what I said about the book at the time, it seems to me that insistence on logical rigor on matters of social policy has the same weakness I mentioned here on 3 November 2011. Relatively immature cognition favours logic over the weighing of values that should underlie policy reasoning.

Sumption has delayed taking his position on the UKSC bench so that he can work on an important case. He will receive a spectacular fee for that. In 1979 he and Joseph said (p 69):

"In practice, people will not work beyond the point at which the burden of the extra work exceeds the pleasure of the extra money."

Given that the work of a lawyer is generally not particularly burdensome, one can see how the balance may fall.

But people do work for reasons other than "the pleasure of the extra money." There are some burdensome areas of criminal law practice, as anyone who defends the children of the poor will realise. Legal aid returns can be insignificant compared to the burden of the work.

There is naivety in Joseph and Sumption's book. It seeks to shield its glib assumptions behind an insistence that only logic can rebut its argument. Dworkin's hedgehog has the better view. Compare the starkly different views of what is the business of the State. Joseph and Sumption (67):

"It is no business of the State to decide in advance what kind of society it ought to be governing and then to manipulate or frustrate known desires in such a way as to bring such a society into being. It must take its subjects as it finds them. It is means, not ends, which are the proper concerns of governments. It is their proper function to provide a framework of laws and institutions within which men can pursue ambitions of their own devising, and thereby create whatever society is the natural outcome of the infinite variety of human tastes and personalities."

Dworkin (352-354):

"Coercive government is legitimate only when it attempts to show equal concern for the fates of all those it governs and full respect for their personal responsibility for their own lives.
"... [E]verything the government of a large political community does – or does not do – affects the resources that each of its citizens has and the success he achieves. ... [T]he impact of ... personal variables on his actual resources and opportunities must in every case also depend on the political variables: on the laws and policies of the communities in which he lives or works.

"... [W]e cannot avoid the challenge of equal concern by arguing that the resources an individual has depend on his choices, not the government's choices. They depend on both."

Dworkin's conception of the purpose of government is more nuanced and more realistic.

Just to be even-handed, I should confess that around the same time as Joseph and Sumption were writing their short book I was writing an essay for a Masters tutorial on the hallmark requirement for the admissibility of similar fact evidence, in which I asserted that absence of a hallmark can itself be a hallmark. Even now my toes curl and I blush. True it may be that in some contexts the offender who has no hallmark may thereby be distinguished from other suspects, but more generally absence of a hallmark has no probative value. How young I was, how innocent. But the difference is that whereas my error was a simple slip of logic, easily corrected, Sumption's is a neglect of pragmatism. Experience tells us that weak judges tend to rely on logic at the expense of pragmatism. "The life of the law has not been logic, it has been experience."