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

The Lion and the Ox
courts? ( In my view it does, for neither justice nor law necessarily
requires a formal foundation in tabulated rights. The pure economic
liberal view, indeed, is that rights do not come into the
picture at all: Hayek, for example, argues that unless the creation
of misery is deliberate, poverty involves no injustice. 57 It must
equally be the case from a communitarian standpoint that a
practical limit exists to what rights the courts can enforce against
the state, especially where the right to litigate belongs only to
individuals. A successful legal claim—for recognition of special
educational or physical needs, for instance—may simply mean
reallocating already inadequate funds within a ring-fenced local
budget, so that the silent pay for the gains of the assertive.
If injustice there is then, it lies deeper than the allocation or
denial of rights—dependence on which, as my colleague John
Laws has argued, is in a sense a sign of an immature society. 58 It
has to do with what I have suggested earlier in this lecture is a
common sense of equity, an ethic of kindness, a morality of
feeling, which does not and cannot be expected to stop at a
desire for legal justice, even though that is necessarily where
the law itself must stop. But within the law's necessary limits I
see nothing wrong with the reaction of a good judge of recent
years, Mr Justice McKenna, when in my early years at the Bar he
was asked to grant injunctions ordering some travellers to leave
a roadside verge to which they had been forcibly removed from
other land. "Where are they to go?" he asked. "That's not our
concern," said the local authority's counsel, "We're entitled to an
order". "These are human beings," said McKenna, "And you're
not getting any order until you can tell me where they are to go."
It may be beyond the power of the courts to change a world in
57 F.A. Hayek, Law, Legislation and Liberty: the Mirage of Social Justice (1976),
quoted by Waldron, op. cit.: "It has of course to be admitted that the manner
in which the benefits and burdens are apportioned by the market mechanism
would in many instances have to be regarded as very unjust if it were the
result of a deliberate allocation to particular people. But this is not the case.
Those shares are the outcome of a process the effect of which on particular
people was neither intended nor foreseen by anyone." Comment is superfluous,
but the trickle-down effect of Hayek's thinking, through the Chicagobased
early law-and-economics movement, has been paralleled by versions of
sociobiology which use the same monetarist mathematical models. These in
turn have sought to influence criminology; they have also been borrowed
back, in a way which may give pause to Dawkins' readers, by monetarists in
the form of "evolutionary economics". See Rose, op. cit. (n. 50 ante), p. 53.
58 Sir John Laws, "The limitations of human rights" [1998] PP.L. 254 at 255: "As
it seems to me the idea of a rights-based society represents an immature stage
in the development of a free and just society.... A society whose values are
defined by reference to individual rights is by that very fact already impoverished.
Its culture says nothing about individual duty—nothing about
virtue."
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