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

They spent an extraordinary amount of time satisfying spurious legal niceties. Thevile blood and honour laws were detailed documents born out of detailed debatebetween fine but vile minds. The legal powers for taking Jews’ property from themwere carefully drafted and enacted. In the 1930’s there was even a view that underinternational law there was nothing wrong with these laws because they compliedwith German law principles. Stunning to think of it now. The “final solution” itself –after the first and second solutions (expulsion and concentration, respectively) hadbeen abandoned – was the result of bureaucratic skill and technological advancement.Zygmunt Bauman’s Modernity and the Holocaust explains how the Fordistproduction line made the holocaust logistically possible. It was then a completeabsence of morality and of an appropriate conscience which allowed Eichmann’sbureaucracy, under Heydrich and Himmler, to put the holocaust into operation.It was precisely an absence of thinking of the sort required by an idea of consciencewhich facilitated the holocaust. Precision and clear rules were simply part of thebureaucratic machinery which made it all possible.Hannah Arendt is particularly powerful in her account of Eichmann’s trial inJerusalem in talking about the absence of “conscience” – that word rings out in hernarrative again and again like a bell – as part of the context in which the holocausttook place. But I am getting ahead of myself. I will come to the idea of consciencesoon enough. For present purposes I wanted to show – I confess by taking one of themost alarming episodes from the whole of human history – how mindless affectionfor rules without a philosophically-grounded morality or conscience can give way toArendt’s notion of banal evil on an unimaginable scale.The other reason for finding Birks’s argument so objectionable is that it trivialises thereal impact of the holocaust. It is the very worst sort of debating society puerility.Now I have spent far too much of my inaugural lecture talking about restitution andtalking about Nazis. I want to talk about the alternative approach: conscience.CONSTRUCTIVE TRUSTSRestitution does not have answers for the issues which constructive trustsresolve.The principal shortcoming in unjust enrichment thinkingIt was said by Peter Birks that the principal defect in constructive trusts is that theterm “constructive trust” tells us the result of an analysis but does not tell us the eventwhich brought that analysis into being; unlike unjust enrichment which tells us that itis the injustice of the enrichment which gives rise to restitution. The answer to thisargument is that it is knowledge of some unconscionable factor in dealings withproperty which brings a constructive trust into being.12www.alastairhudson.com | © professor alastair hudson