England's dreaming equity, trust and conscience - alastairhudson.com

5. Conscience-thinkers are fascists: the lesson from HeydrichThere was one argument marshalled against defenders of equity which, Iwould suggest, demonstrated an astonishing level of puerility, love of rhetoricfor its own sake, and historical insensitivity. That was the argument that thosewho advanced a notion of “conscience” were falling into the same trap as theauthors of the Nazi’s final solution.This argument is set out by Prof Steve Hedley in the following terms, (“Thetaxonomic approach to restitution”, in Hudson ed., New Perspectives on Property,Obligations and Restitution, Cavendish Publishing, 2004):-‘Indeed, a noticeable recent tendency [in restitution scholarship] has been toaccuse equity lawyers of being no better than Nazis. This (slightly surprising)argument relies on the point that, like one famous Nazi, they sometimes appealto conscience. It appears that Reinhard Heydrich, chief of the Gestapo anddirector of the ‘final solution’, once used justified his conduct by reference to hisconscience.“For the fulfilment of my task I do fundamentally that for which I can answer to myconscience ... I am completely indifferent whether others gabble about breaking the law”(Quoted in AH Campbell ‘Fascism and legality’ (1946) 62 LQR 141, 147).This is, apparently, too uncomfortably close to the reasoning employed by otherswho do not subscribe to restitution of unjust enrichment.’This argument has now become absurd. First, it says that conscience thinkingcan be jettisoned because it is capable of leading to Nazism. Oddly, everyonewho advocates conscience-thinking in equity seems as far from being a fascistas it is possible to get. Secondly, this argument is monumentally insensitive tothe memory of the Holocaust: to use the views of the author of the FinalSolution to score a cheap debating point is truly appalling.Now, I must admit at this point that I had found at one time another quotationattributed to Heydrich in which he suggested that order and clear rules were the mostimportant thing for any society. I found it entirely by accident one afternoon readingsomething other than law. I cannot now find it. I remember very well my joy ondiscovering it, recognising the perfect refutation of Birks’s point, setting it aside andsettling myself back with a feeling of satisfaction. Lamentably, I tidied up my studysubsequently and cannot for the life of me remember where I put it.However, some good has come of it. I launched a search of my home from top tobottom. I re-read at speed every book I suspected I had so much as opened during thatsummer. Ditto every article and fragment I could find. While doing so, I reencountereda number of better ideas than simply meeting one quotation with another.As though such a process would prove anything. Instead I spent a lot of time withHannah Arendt’s work and with Zygmunt Bauman’s work (two people I suspected ofharbouring the quotation I sought). In so doing I was required to think through whatwas so wrong with Birks’s approach from a methodological standpoint and also, moreimportantly, to think again about why I consider equity to be quite so important.The real reason why Birks’s argument strikes me as being so stupid is that it suggestsan ignorance of the history of national socialism. The Nazis were painfully precise.11www.alastairhudson.com | © professor alastair hudson