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Published online by Cambridge University Press: 02 January 2018
Law is a social institution. Indeed, it is more: it is one of Man's better inventions in that it has made co-existence possible between large numbers of people and has enabled them to achieve within a framework of control and co-ordination more than individuals could achieve on their own. Law is not by any means the only mode of social regulation, nor may it even be thought paramount; but it is important and pervasive and, as such, deserves to be respected by every society. If a society falters in respect of its law, that could be heralding its undoing. Is that an extravagant statement? Let us see what has been taking place of late in the industrial sphere, which is vital enough to national existence.
This paper is based on a contribution to Recht und Gesellschaft, Festschrift für Helmut Schelsky (eds. F. Kaulbach und Werner Krawietz, 1978) in that it endeavours to restate the theme of the earlier paper in a wider context. I am grateful to the Editors for their permission to utilise the material.
2. The original Marxist prediction that law will ‘wither away’ and be replaced by an ‘administration of things’ is not now talked about by contemporary Marxists.
3. [1979] 3 All ER 614, (1979) 1 WLR 1294.
4. [1980] AC 672, [1980] 1 All ER 65.
5. [1980] 1 All ER 529, (1980) 1 WLR 142.
6. [1978] AC 435. The Court of Appeal report is in [1977] QB 729.
7. Utilitarianism, Liberty and Representative Government (1962), p. 158.
8. Historical Essays and Studies, Appendix; and see also Montesquieu L'Esprit des Lois (1748), 11, 4—6.
9. A recent example is to be found in Pakistan. The chaos into which political factions plunged the country after allegedly rigged elections was halted on 5 July 1977, by a military regime, which promised elections on 16 October and a return to democratic government. Supporters of the deposed President kept fomenting such unrest that on 1 October it was announced that elections were postponed indefinitely. Since then the government has found itself having to impose sterner and sterner measures and is now in the same unenviable position as its predecessor. The pattern of history is equally melancholy. Greek democracy was wrecked by the Athenian mobs and led Plato and Aristotle into preaching against the evils of unlimited freedom and the need for an enlightened power-structure. The chaos of the Dark Ages was succeeded by a power-structure of sorts in the Holy Roman Empire. Freedom from this had to be won by national sovereigns, who then insisted on unlimited freedom of action in their mutual dealings and at the same time began to abuse their domestic power over their subjects. The abuse of freedom of action at the interstate level led to the Thirty Years War, which prompted Grotius and others to call for an international power-structure; we are still calling for one. The abuse of domestic power provoked revolutionary movements for freedom from power, e g the English Revolution of 1688 and the French Revolution. The freedom from power won by the French revolutionaries was immediately construed as unlimited freedom of action, the end result of which was a return to power under Napoleon. In the present century the power-structure of Imperial Germany was replaced by the permissive Weimar Republic, which brought the country to near-anarchy from which it was pulled back by the power-structure under Hitler, and which in turn ended in World War 11. The Russian revolution for freedom from Tsarist power has ended in the establishment of one of the most ruthless power-structures yet seen under which freedom to strike or express opinions contrary to the regime is suppressed, as was witnessed in Hungary (1956) and Czechoslovakia (1968). Contemporary events in Poland show the unions asserting freedom from the power of the ruling class (the Communist Party), and the danger is that if they carry their freedom to strike too far and produce economic anarchy, they will be crushed.
10. Equally, if the law were to impose a duty to do something, the duty-bearer has the inner freedom not to obey. Thus, immediately after the issuing of an injunction in Express Newspapers Ltd and another v Keys and others (1980) Times, 9 May, one of the unions (NATSOPA) announced its refusal to comply. J. Raz The Authority of Law (1979), ch 12, makes heavy weather of the point made in the text.
11. Cf Health Computing v Meek (1980) Times, 5 March.
12. Cf hijackers, who also take it out of uninvolved third parties and who are as convinced of the justice of their demands as militant strikers.
13. The ‘Clay Cross Affair’ is one example. Eleven councillors of the Clay Cross Urban District Council refused to implement the Housing Finance Act 1972 on the ground that it was contrary to socialist principles, but they sought at one stage to contend that the Act was not ‘law’ because it was immoral. See Asher and other v Lacey [1973] 1 WLR 1412.
14. For comment on Mr Jackson's statement by Lord Wilberforce, see [1978] AC at 475.
15. See, e g M. Walzer Obligations: Essays on Disobedience, War and Citizenship (1970), Part I; Is Law Dead? (ed. E. V. Rostow, New York, 1971); J. Rawls A Theory of Justice (1972), pp. 350—391; P. Singer Democracy and Disobedience (1973); R. M. Dworkin Taking Rights Seriously (1977), chs. 7ff. According to Raz, above, ‘There is no obligation to obey the law’ (p. 234); obedience stems from ‘respect for law’, which is said to be analogous to friendship and loyalty, and ‘for the person who respects the law there is an obligation to obey’ (p. 260). Dr Raz is concerned to establish the authority of law from a positivist point of view and he rejects moral reasons. He does not explain why the moral quality of a law is not conducive to respect. Be that as it may, if trade unions lose respect for a law, would Dr. Raz maintain that they have no obligation to obey it? On respect for law, see Duport Steels Ltd v Sirs, above, n. 5.
16. For references see n. 15, above. For other limits and a discussion of disobedience, see my Jurisprudence (4th edn, 1976), pp. 428–434.
17. For the analysis of ‘right’ into ‘claim’ (correlative to duty), ‘liberty’, ‘power’ and ‘immunity’, see W. N. Hohfeld Fundamental Legal Conceptions as Applied in Judicial Reasoning (ed. W. W. Cook, 1923), ch. 1. The main distinctions have been widely accepted by jurists. With regard to a claim-right to a job, of the ‘right to a home’, which is legally recognised as a claim-right correlative to a duty in housing authorities under the Housing (Homeless Persons) Act 1977 De Falco v Crawley Borough Council; Silvestri v Same [1980] QB 460.
18. E g Bonsor v Musicians’ Union [1956] AC 104; Rookes v Barnard [1964] AC 1129.
19. This is one of the more unfortunate by-products of the otherwise beneficial institution of the welfare state. No one like to feel indebted and grateful for favours. The welfare state provides benefits undreamed of fifty years ago, but the psychological reaction seems to be to persuade oneself that there is no call for gratitude in all this since such benefits are only due ‘as of right’, and then to feel aggrieved that yet more benefits are not forthcoming. Further, the welfare state aims to satisfy ‘basic needs’. ‘Basic’ implies that above this minimum some people continue to enjoy additional amenities. Those who do not enjoy these then start to urge that they too are ‘basic needs’ and due to them ‘as of right’. Cf A. M. Honoré; ‘What is at one time a luxury becomes at another time a necessity and need’‘Social Justice’ in Essays in Legal Philosophy (ed. R. S. Summers, 1968), p. 78.
20. For this distinction, see J. Bentham Of Laws in General (ed. H. L. A. Hart, 1970), pp. 95ff; W. N. Hohfeld, n. 17, above.
21. Those who act against uninvolved and innocent third parties seek to cast moral responsibility for what they do deliberately on to the other side for having forced them into taking action by not giving in to their demands.
22. Introduction to the Study of the Law of the Constitution (ed. E. C. S. Wade, 1939), pp. 188—203.
23. See J. LI. J. Edwards The Law Officers of the Crown (1964, reprinted 1977); G. L. Williams ‘The Power to Prosecute’ [1955] Crim LR 668; Elwyn Jones ‘The Office of the Attorney-General’ (1969) 27 CIJ 50; B. M. Dickens ‘The Attorney-General's Consent to Prosecution’ (1972) 35 MLR 34.
24. Lord Denning saw the point when he said, ‘This is, to my mind, a direct challenge to the rule of law’ [1977] QB at 758.
25. Above, n. 13.
26. Asher and others v Secretary of State for the Environment and another [1974] Ch 208 at 221: ‘Each of them deliberately broke the solemn promise which he gave when he accepted office. Each of them has flagrantly defied the law. Each of them is determined to continue to defy it. Yet they come to the Court and complain that the Secretary of State has acted unlawfully. If he has done so, we would not hesitate to say so. We will not tolerate any abuse of power by the executive arm of government. But here there is none. These 11 councillors, by their conduct, have presented a grave problem to all concerned in the good government of this country. The Secretary of State is the one person who can take action to see that the law is obeyed. He is the one to decide which of several courses open is the best one to take. So long as he acts in good faith, his decision is not to be questioned’ per Lord Denning.
27. E g the IMF which at that time had loaned a vast sum to Britain to help her economy and was watching the government's handling of trade unions.
28. Cf. L. Duguit's idea of’ social solidarity’Law in the Modern State (trans. F. and H. J. Laski, 1921).
29. R. D. Schwaz and S. Orleans: ‘The threat of sanction can deter people from violating the law, perhaps in important part by inducing a moralistic attitude towards compliance’; ‘On Legal Sanctions’ (1966-67) 34 UCLR 300; Aristotle: ‘Legislators make citizens good by forming their habits’, Nichomachaean Ethics, II, 1.5. See also K. Olivecrona Law as Fact (Humphrey Milford, 1939), pp. 147–148; (2nd edn, 1971), pp. 271–273. Cf the Marxist thesis of educating the masses for communism during the period following the revolution.
30. Cf F. Engel's ‘administration of things’, i e rule by law.
31. The Times, 15 May 1977, and the following days. A more recent attack is by J. A. G. Griffith The Politics of the Judiciary (1977), and see also his Administrative Law and the Judiciary (Pritt Memorial Lecture, 1978).
32. ‘Marshall and the Judicial Decision’ (1955) 69 Harv LR 228.
33. The Art of Judgment (1962), pp. 32–33.
34. It is on this ground that Lord Denning is sometimes criticised even by his warmest admirers.
35. E g in the years following the 1688-89 revolution; and the point is also illustrated by dicta in Sirs.
36. ‘The Work of the Commercial Court’ (1921) 1 CLJ 8.
37. (1978) Times, 21 February.
38. J. Donaldson ‘Lessons from the Industrial Court’ (1975) 91 LQR 181.
39. P. O'Higgins and M. Partington Industrial Conflict: Judicial Attitudes’ (1969) 32 MLR 53. Their a priori expectation of bias has peculiar significance.
40. [1925] AC 578 at 594.
41. Nichomachaean Ethnics, V.
42. A. L. Corbin Jural Relations and their Classification’ (1920) 30 Yale LJ 227, n. 2.
43. English Law—the New Dimension (Hamlyn Lectures, 1974).
44. The Politics of the Judiciary.
45. Ibid. pp. 214–215.
46. Page 215.
47. Thus, in a totally different context, viz., the ‘law and morals’ debate, Hart criticises Lord Devlin of moving ‘from the acceptable proposition that some shared morality is essential to the existence of any society to the unacceptable proposition that a society is identical with its morality as that is at any given moment of its history’Law, Liberty and Morality (1963), p. 51. Neither Hart's proposition nor that attributed to Lord Devlin can be ‘proved’ by evidence in the same way as, e g one ‘proves’ that the Prime Minister inhabits No. 10, Downing Street. Yet they should not be dismissed for that reason.
