LECTURES - College of Social Sciences and International Studies ...

The Free Individual and the Free Society
onwards 36 have postulated as either the condition or the explanation'of
the development of humanity as a species.
The measure in which individuality can be fulfilled socially,
and the measure in which self-fulfilment depends on individualism,
are questions which have suffused and shaped the major
political movements of the last four centuries. They are not legal
questions, but they inexorably affect the law—overtly in the
content of the legislation enacted by successive parliaments,
but also silently in the policies which the common law from
period to period adopts or abandons. From Chief Justice Coke's
invigilation of monoplies of labour to modern public law's invigilation
of the propriety of acts of executive government, the
common law has made it its business to respond to those of
society's perceived needs which it considers justiciable. 37 My
present point, however, is that whichever view of the proper
ratio of social to individual power has for the time being been in
the ascendant, our society has resolved conflicts not simply by
adopting majoritarian solutions at the expense of individuals
and minorities (though this has happened more often than is
comfortable 38 ), but by recognising that individuals and minorities
have interests which are entitled to recognition and protection.
It has been importantly, though by no means exclusively,
the role of the courts to stake these claims. They have often
enough fallen down on the job, from their capitulation to
Charles I over the Ship Money 39 to the inability in Malone's
case to find a way of controlling state surveillance. But, from
Coke's refusal to let the King sit in his own courts, 40 to the
award of punitive damages against the officers of state who
used a general warrant to conduct raids in search of the authors,
36 Plato, Republic, Book II, 358b ft. There is, however, a selfish and perhaps
amoral edge to this social contract, which Glaucon ascribes to the fact that
the profit individuals could made by wrongdoing is less than the cost to
them of others' wrongdoing: a view which would find favour with some
modern law-and-economics theorists but is much less attractive than Epicurus'
view that mankind's development brought about and eventually institutionalised
an awareness "that members of a social group can best secure
freedom from being harmed by a mutual agreement not to harm one
another" (A.A. Long and D.N. Sedley, The Hellenistic Philosophers, Vol. 1,
p. 134).
37 My next lecture considers this history more fully.
38 Two examples are Liversidge v. Anderson [1942] A.C. 206 and Franklin v.
Minister of Town Planning [1948] A.C. 87.
39 R. v. Hampden (1637) 3 St. Tr. 825.
40 Prohibitions del Roy (1607) 12 Co. Rep. 623. Although I have in the past (see 110
L.Q.R. 271 n. 47) suggested that as James VI of Scotland he had become
accustomed to doing this, the Scottish judges had in 1599 voted contrary to
his command and in his presence: see Claire Palley's 1990 Hamlyn Lectures,
The United Kingdom and Human Rights, p. 20.
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