Friday, 28 January 2011

Humpty Dumpty sat on a tribunal

Listed by Leg-Iron amongst a litany of similarly worrisome straws in the wind, comes this latest example of judicial activism from the so-called Supreme Court, set up in London, although, as I understand it, it's not quite as supreme as the title may lead you to believe, now that we're a province of the European Empire.

Lady Hale, leading a bench of five justices, said the definition of violence must change so that a range of abusive behaviour now counts in law.

The decision will affect domestic violence and family law which has given the courts powers to throw someone out of their home if their partner accuses them of violent behaviour. Until now violence has always had to mean physical assault...

Lady Hale said the meaning of the word ‘violence’ had moved on since Parliament passed the Housing Act. The word ‘is capable of bearing several meanings and applying to many different types of behaviour. These can change and develop over time’. The judge added that ‘it is not for Government and official bodies to interpret the meaning of the words which Parliament has used. That role lies with the courts.’

Violence has always meant physical assault in law, and it has always been understood that there is a very significant line drawn between violence and speech. Lady Hale is now rubbing out that line, and using the most spurious of reasoning to justify it, namely that the word's meaning has shifted.

Firstly, the word's meaning has not shifted. Language develops through metaphor, and over time the fact that metaphor is being employed is lost, the metaphorical use becomes concretised in the new, slightly different meaning. No such process has occurred with the word violent. If I say 'he was a violent man', it is understood that the man did more than shout and stamp his feet. If I describe 'Glengarry Glen Ross' as a violent movie, people will be misled. As the clip below indicates, it is a very intense movie, gruelling, filled with verbal conflict, but it is not (unless my memory is letting me down) violent. Nobody gets beaten, no heads explode, no ears cut off. (For contrast, see Al Pacino in Scarface, which certainly could be called violent).

Secondly, even if the word's meaning had shifted, the original meaning of the law is not obscured. She has made a leap from judges interpreting the law, which I would say is little more than applying the law to real situations, to redefining the meaning of the words used, based on what she thinks the law should say, or would say if she was writing it. Thus I agree with Jill Kirby:
Family law expert Jill Kirby yesterday drew a comparison between the ruling and the Humpty Dumpty character in Lewis Carroll’s Through The Looking-Glass, who said words meant whatever he wanted them to mean.


Angry Exile said...

Hale has an interesting CV.

'... a self-confessed feminist who has declared that she wants "to see changes in the way society is organised, rather than wanting women to conform to male-determined roles"...

An academic who spent 18 years teaching law at Manchester University, she has not come up through the traditional route of years at practice at the bar. And she will be the first family lawyer in many years to sit in the court - top judges have traditionally emerged from the more 'heavyweight' areas of commercial and chancery law.

She also brings a knowledge rare among judges of the workings of Whitehall and the ins and outs of the legislative process from her 10 years on the Law Commission, including five years working closely with officials from two departments on the gestation of the ground-breaking Children Act.

She also brings a knowledge rare among judges of the workings of Whitehall and the ins and outs of the legislative process from her 10 years on the Law Commission, including five years working closely with officials from two departments on the gestation of the ground-breaking Children Act.


Hale admits being a "softline" feminist who believes in equality for men and women.

The influential 1984 book Women and the Law, the first comprehensive survey of women's rights at work, in the family and in the state, which Hale wrote with a fellow academic, concluded: "Deep-rooted problems of inequality persist and the law continues to reflect the economic, social and political dominance of men."

On the bench Hale has criticised the inbuilt bias of the current system for choosing judges, with its dependence on "soundings" from those already there, producing a judiciary which is "not only mainly male, overwhelmingly white, but also largely the product of a limited range of educational institutions and social backgrounds".


All agree she is formidably clever, with a wide knowledge of the law, yet one retired law lord confided: "She's a bloody awful judge, you know." Another judge reckoned that while she had not been a particularly good judge in the high court, she had performed well in the court of appeal.


In the new era of the supreme court, Hale's broader background will be a great asset, argues Peter Graham Harris, a former senior civil servant in the lord chancellor's department who worked with her on the Children Act. "The great thing is her academic background which allows her to see things in broader social policy terms, and her experience in Whitehall," he said. "All that is going to be very important to the senior judiciary because they're going to play a much larger part in the governance of the nation."'

And that's supposed to be a good thing? Fuck me gently with a gavel!

Will said...

Coincidentally I've just started Our Enemy The State by Albert Jay Nock. I've only just got past the introduction by Butler Shaffer in the 2009 edition but the following quote from Shaffer seems relevant.

Those who chide critics of the state as being “idealistic” or “utopian” must, themselves, answer for their visionary faith that state power could be made to restrain itself. As Nock understood, and as more recent history confirms, it is those who believe that written constitutions can protect the individual from the exercise of state power who hold to a baseless idealism, particularly when it is the state’s judicial powers of interpretation that define the range of such authority. Words are abstractions that never correlate with what they purport to describe and must, therefore, be interpreted. Supreme Court decisions continue to affirm Nock’s realistic assessment that “anything may be made to mean anything.”

Trooper Thompson said...

Indeed. I would say that the struggle between power and liberty can never be over, and we cannot afford complacency, even if we achieve paper limits on state power.

Trooper Thompson said...


I don't know why, but you're comment got bounced into the spam, until I noticed it. Good work, that information explains a lot. She's basically a harpy with an axe to grind.

Angry Exile said...

No worries, TT. Wasn't in there long anyway. And yes, I came to similar conclusions.