Gina Miller is our most popular law teacher at the moment. In several of our law modules we have been considering the legal challenges to aspects of Brexit in the High Court and the Supreme Court. Level 5 students of Administrative Law have been looking at it as an example of the process of judicial review, a common law way for citizens to challenge decisions and actions of the government or public officials. Level 4 English Legal System students have been analysing the case to understand the independence of the judiciary, judicial reasoning, and to identify the legal issues at stake and the ratio decidendi, or reason for the judgment made. Our Foundation Year students, studying the concept of jurisprudence, also gained some insights from the case.
Coverage of the decisions and commentary by politicians, the public and the press has often been couched in terms of right and wrong, and some of it in extreme and inflammatory language. Many of the people assessing the judgments as right or wrong seem to be using those words in a moral rather than legal sense. For example, can it be right to ignore the will of the people expressed in a referendum? This hints at one of the great debates in legal theory.
In the 3rd Century BCE Aristotle, writing about the philosophy of law, made a distinction between ‘natural justice’ and ‘conventional (or legal) justice.’ That is, some of the laws made by legislators reflect universally held principles of morality whilst others are just a matter of preference for practical or cultural reasons. In the 13th Century CE Thomas Aquinas, in his project to harmonise the philosophy of the ‘pagan,’ Aristotle, with Catholic Christian teaching, developed the concept of natural law. He held that it could be discovered by human reason, not just by divine revelation and morality should underpin the making and implementation of law. Therefore, laws that are contrary to human good are “more like acts of violence than laws.” As such they do not necessarily oblige one to obey them.
As judicial reasoning and legal studies developed the tension between these ideas continued to crop up over the next 750 years. In the mid 20th Century the dispute was exemplified in some famous debates. HLA Hart, holding a position, by now known as legal positivism, argued that law and morality are completely separate, with any correlation entirely coincidental. Judicial reasoning is simply about the existing legal rules and how to apply them. The study of the law is analytical and not normative. In famous debates and correspondence his view was challenged by natural law thinkers like Lon Fuller and Ronald Dworkin. They believed that there is a necessary connection between law and morality if laws are to command respect and obedience, and cases are judged with reference to moral principles, not just analysis of legal rules.
The current dominant view is legal positivism. Laws properly made according to the constitution, have full authority and do not require reference to natural law or morality to command compliance. This means that judges should not be concerned with the moral considerations of a case but precisely apply the legal rules that pertain to those facts. However, in our legal tradition we can probably see two manifestations of natural law. The first is equity law, which can shield citizens, in some cases, from harshness or unfairness caused by strict application of legal rules. The second is the safety net of the European Convention on Human Rights, which constrains legislators, administrators and judges in what they can impose upon citizens, recognising their inherent dignity and worth, a natural law concept.
Returning to R (on the application of Miller and another) v Secretary of State for Exiting the European Union  UKSC 5 we may be able to see why the intense feelings about the supposed rights and wrongs of the case will have had little impact upon the judges. Lord Neuberger made it very clear that the majority judgment was not about the political considerations of Brexit, but a specific application of the law. Even the dissenting judges, who would have allowed the appeal, made it clear their grounds were a strict interpretation of the European Communities Act 1972 and established law regarding the royal prerogative. However, dissenting judge, Lord Carnwath, did make this curious statement, which perhaps hints at something else;
‘Those problems, [caused by leaving the EU] and the need for Parliament to address them, will remain precisely the same with or without statutory authorisation for the article 50 notice. If that is what the law requires, so be it. But some may regard it as an exercise in pure legal formalism.”
So, big thanks to the legal teams of Ms Miller and Ms May for bringing such an important case study at exactly the right time for us to learn from and to discuss in such an interested and animated way in many different modules. We are now learning about the legislative process as we see the Brexit Bill through parliament.
The legal challenges to Donald Trump’s executive orders are the subject of our Constitutional Law workshops this week, but that is another blog altogether!
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