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

The Lion and the Ox
But the truth is that all laws discriminate. They discriminate
between the virtuous and the wicked, between the permitted
and the prohibited, between the taxable and the duty-free. They
discriminate, too, on grounds which from era to era are taken to
be so obvious that they do not even require justification. It was
obvious that the right of all Athenian citizens to vote did not
include women or slaves. Among the American founding fathers
who proclaimed the self-evident truth that all men are born
equal were several slave-owners. In this country until well into
the twentieth century the unsuitability of women to vote, sit on
juries or join the professions was regarded—at least by men—as
too obvious for argument. 5 We continue to regard it as selfevident
that the freedoms which we now regard as the birthright
of all men and women without distinction do not apply to
children. Our law, both common law and statute, 6 permits acts
against children which, if done to adults, amount to criminal
assaults. It was only in this generation, and only by the narrowest
of margins, that the House of Lords in the Gillick case 7 closed
off the enduring notion of parental rights as a form of proprietorship
and put in their place a balance between the child's
evolving autonomy and the parent's role as carer.
As to crime, it is not law—the argument goes—that criminalises
some people and not others, but social conditions or personal
choice that lead wrongdoers to do wrong. The law may be
able to mitigate the consequences for those who offend through
misfortune, but it cannot treat them as free of blame without
forfeiting the very claim to even-handedness which its detractors
mock. I will return to this question of the voluntariness of
wrongdoing; but it is necessary first to say that Blake too was
right. His was the age of massive enclosures and of the Game
Laws when, as the jingle went:
"The fault is great in man or woman
Who steals a goose from off a common;
But what can plead that man's excuse
Who steals the common from the goose?"
Enclosure in England, like clearance in Scotland and Ireland,
was the work of the law, but few poor people ever benefited
5 I have given some account of this embarrassing chapter of our legal history in
the 1996 Radcliffe Lectures: see M. Nolan and S. Sedley, The Making and
Remaking of the British Constitution, pp. 52-57.
6 Children and Young Persons Act, 1933, s. 1(1) makes cruelty to children a
crime; but section 1(7) provides: "Nothing in this section shall be construed as
affecting the right of any parent, teacher or other person having the lawful
control or charge of a child or young person to administer punishment to him."
7 Gillick v. Wisbech Health Authority [1986] A.C. 112.
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