Ebor Lex June 2014

1
Ebor Lex
June 2014
Official Journal of the University of York Law Society
Terrorism
Special
Ebor Lex June 2014
2 3
www.eborlex.co.uk
Hello
Contents
W
elcome to the summer
issue of Ebor Lex, the
student run ofcial
journal of the University of York
Law Society.
In this issue, we have implemented a few
changes with the hope of the publica-
tions continued expansion and growth.
Over the year, we have introduced a
number of new roles to capitalise on the
skills and expertise of our student body,
including several interim editors, a Web-
master and a Creative Director.
In just three days, the amazing interim
team has pulled together to create some-
thing truly exceptional and I would like
to extend my sincerest gratitude to the
team for their work.
In this publication, the submissions
have exceeded our expectation in terms
of both quantity and quality, a develop-
ment that we hope will become a tradi-
tion. I would also like to extend thanks
to those who have contributed and rec-
ognize their hard work, alongside thank-
ing our gracious sponsors for making
this publication possible.
Te Ebor Lex team would also like to
welcome future contributors in our up-
coming issues throughout the academic
year. Please do not hesitate in contacting
any member of the team with your ideas,
pitches and submissions.
Tank you for reading,
Sersha Godfrey
Editor-in-Chief
Saoirse (Sersha) Godfrey
Deputy Editor
Nick KT
Creative Director
James Reckitt
WebMaster
Adam Walter Woodley
Content Editors
Rhiannon Barnsley
Karima Sam
James Robinson-Johnson
Interim Editors
Shanelle Maria Kissoon
Jacob James Turner
Jamie Monteith-Mann
Katrina Beveridge
James Gray
Why We Obey: are we motivated from above, below or within? Jack Hall 4
Liberty, Security and the Balancing Metaphor Katrina Beveridge 10
Terrorism and the Right to Life: a Hypothetical Judgment Dan Norris 12
Should suspected terrorists be treated diferently to ordinary criminals in law and
practice?
Nick Knotraros-Tsiokos 14
Te Dark Side of Technology in the Defence of Human Rights Adam Woodley 16
Is Tere Justice Without Morality? Ben Greene 21
Limiting Freedom of Expression Benjamin Reidman 26
Smashing Sexism: Te Trajectory of Gender Inequality and Reform Xavier Peluso 32
A crictical comparison of the capacity of criminal trials and truth commissions to deal
with the gender dimension of post confict justice
Scott Halliday 37
Are practitioners balancing the scales correctly? A brief analysis of the rationale
behind the parallel application of equity and common law
Max Dyck 42
Unlawful Laws: a Hypothetical Judgment Mark Shapiro 45
Vulnerability, Discretion, and Public Housing Policy Joshua Douglas 50
Te Right to Education Over Time Rachel Newell 55
A note from the Editor
4 5
Why we Obey
F
or something so prevalent in the
lives of all citizens, it seems odd that
people so very rarely question the
existence of the law. Te majority of people
in our society unquestionably obey the law
most of the time without presenting any
rationale as to why. Obedience to the law is
not questioned or unpacked and is instead
seen as the accepted thing to do. Indeed,
Joseph Raz goes as far as to say that there
is no general obligation to obey the law [...]
not even in a just society
1
. Tis begs the
question, why does the majority of society
obey the law the majority of the time? Tis
writer has selected three justifcations and
will use this essay to explore each of them
in turn, citing various sources and research
in an attempt to fnd a defnitive answer.
Firstly, it will look at whether the standing
1 Joseph Raz, Authority and Consent [1981] 67
VLR, 103
of a law-making body has a cohesive link
with obedience. For instance, if the state
making law is perceived as unjust and so
does not have the respect of its citizens,
does this mean disobedience is more
likely? It will then examine the concept
of deterrence, questioning whether
people obey the law because they fear the
consequences the state will impose if they
do not. Finally, the essay will question
whether obedience to the law comes as a
result of an inherent deontological belief
by humans that certain actions are good
and bad and, thus, if the law were to be
abolished, the majority of people would
not do bad things because of their own
personal morality. In its conclusion,
this writer will fnd that the answer is a
combination of these three ideas which
are fawed in their own right but coalesce
to form a satisfying justifcation for why
society will never need to be obligated to
obey the law.
Tomas Jeferson famously said that if
a law is unjust, a man is not only right
to disobey it, he is obligated to do so
2
,
implicitly confrming that the main
motivation for obeying a law should be its
fairness. Whilst an element of this fairness
derives from a persons own moral code,
much hinges on the law-making body itself
and how it is perceived by society. It can be
argued that punishments and oppression
have no efect on obedience when laid
down by a state that does not have the
respect of its people. As a result, if a state
is seen as legitimate and fair in the eyes of
its people, this means it is more likely to be
obeyed, even if it passes laws not everyone
agrees with. Tom R. Tyler labels this as
state legitimacy
3
and argues that this
2 Tomas Jeferson, Te Declaration of
Independence (July 4, 1776)
3 Tom R. Tyler, Why People Obey the Law
is the main aim of leaders as it provides
them with discretionary authority
4
. Tis
can be substantiated through historical
evidence, most notably in recent global
conficts. Tylers reference to the Vietnam
War holds particular weight as, for many
fghters, their belief in their legitimate state
outweighed their own personal beliefs
about the rightness
of the war. By having
legitimacy, law-makers
can pass rules that,
whilst being unpopular
or controversial, will
still be followed because
the state has already built a respected
reputation for itself.
Extensive research has been conducted
on the idea of a legitimate state and what
constitutes one, with Skogan and Frydl
(Princeton University Press 2006) 4
4 ibid, 4
stating that [a] legitimate authority is one
that is regarded by people as entitled to
have its decisions and rules accepted and
followed by others
5
. Te most efective
way of assessing whether state legitimacy
afects obedience is to examine peoples
interactions with the legal system and so
the most prominent research is conducted
using criminals. Although criminals have
disobeyed the law, research have shown
they view the state has more legitimate
when they are treated correctly by the
5 National Research Council, Fairness And
Efectiveness In Policing: Te Evidence (Commission
to Review Research on Police Policy & Practices,
2004) 297
police and the courts following their arrest.
Papachristos reveals that, even in situations
where the criminal receives a negative
outcome, they will still view the state as
legitimate so long as they view the process
by which said decision was made as being
procedurally just
6
. Tis seems signifcant
in stopping criminals from reofending
and, hence, encouraging
them to obey the law in
the future. If a criminal
feels disillusioned by
the justice system or
feels they have been
treated badly, this may
make them more likely to avenge their
harsh treatment by disobeying the law.
If, however, they feel as if the police and
the courts have treated them with respect
and fairness, there will be less resentment
6 Andrew Papachristos Why Do Criminals Obey
the Law? Te Infuence Of Legitimacy And Social
Networks on Active Gun Ofenders [2009] 397, 402
even in situations where the criminal receives a
negative outcome, they will still view the state as
legitimate so long as they view the process by which
said decision was made as being procedurally just
Ebor Lex June 2014
Jack Hall
Are we motivated from
above, below or within?
Ebor Lex June 2014
6 7
and bitterness afer their punishment. As
criminals are one of the few groups in
society who have direct interaction with
the state, it seems fundamental to ensure
they are treated in the correct manner in
order to secure obedience when they are
merged back into society.
However, it would seem that state
legitimacy and obedience do not always
come hand in hand. Tyler appears to adopt
this stance, stating that legitimacy can only
be viewed as of fundamental importance
when it leads citizens to behave in ways
not always consistent with their short-
term self-interest
7
. Te various protest
movements seen throughout history, such
as the Sufragette movement and even the
recent student riots, certify that this is not
the case as people are not prepared to obey
laws just because they have been laid down
by a legitimate state. Robert L. Holmes
turns this concept on its head, adopting
a consequentialist approach to assess a
scenario in which laws are obeyed even
when state legitimacy is not achieved
8
.
In a hypothetical oppressive regime,
Holmes notes that, from a consequentialist
viewpoint, disobeying the state would
bring about more harm than good, as it
would lead to stringent penalties enforced
by the state. Tis would result in people
obeying laws enforced by an illegitimate
state, even if those laws challenge their
moral beliefs. Certainly, this can be
evidenced through oppressive regimes
seen throughout history, the most notable
of which was Nazi Germany, where many
German citizens turned a blind eye
9
to
various oppressive measures rather than
do the morally good thing, out of fear that
they would be apprehended themselves.
Tis would suggest that fear of sanctions
or punishment is the core
motivation behind choosing to
follow a law, since evidence tells
us that the oppressive nature
of many dictators regimes has
repeatedly quelled unrest in
many diferent countries over history.
Ofen, deterrence would come in the form
of rendering the ofenders the lowest level
in society, with slavery, imprisonment,
exile and even torture or execution being
used in the hope that others would look
7 Tom R. Tyler, Why People Obey the Law
(Princeton University Press 2006) 29
8 Robert L Holmes, State-Legitimacy and the
Obligation to Obey the Law [1981] 67 VLR 133, 141
9 Zach Pontz, German Womans WWII-Era Diary
Shows How Citizens Turned Blind-Eye to Nazi
Crimes (Te Algemeiner, 14 June 2013) <http://www.
algemeiner.com/2013/06/14/german-womans-wwii-
era-diary-shows-how-citizens-turned-blind-eye-to-
nazi-crimes/> accessed 2 January 2014
down on them with a feeling of hatred
and fear. Even in a reasonably just society,
such as the United Kingdoms, deterrence
is one of the aims found in the Sentencing
Guidelines
10
, indicating that it is not just
oppressive regimes that want its people
to look at the fates of the disobedient and
take note. Classic philosopher Beccaria
opined that deterrence motivated those
who might have otherwise committed
crimes to rethink their actions. He states
that those nations that have tried to dispel
evil through good laws
11
rather than
waiting for humans to change are more
efective. Clearly, Beccaria believes that a
person is motivated not to do evil because
of the law rather than an inherent moral
belief. He goes on to say that punishments
are unjust when their severity exceeds
what is necessary to achieve deterrence
12
,
indicating his belief that deterrence is the
fundamental aim when administering
10 Sentencing Council, Sentencing basics
(Te Sentencing Council, date unknown) <http://
sentencingcouncil.
judiciary.gov.uk/sentencing/sentencing-basics.htm>
accessed 2 January 2014
11 Cesare Beccaria, On crimes and punishments
(frst published 1764, New York: Macmillan 1963) 8
12 ibid, 14
punishment.
However, whilst it can be conceded
that deterrence certainly plays a part in
motivating people not to break the law,
Beccaria places too much weight on its
signifcance and more recent studies have
shown deterrence to be a far smaller piece
of the jigsaw than Beccaria gives it credit
for. A 2005 extract regarding deterrence
theory
13
makes a valid point when it states
that it is difcult to evaluate the signifcance
and efectiveness of deterrence, since
only those who are not deterred come
to the attention of the law. However, as
with state legitimacy, the data
garnered from ofenders is useful
when assessing the efectiveness
of deterrence on obedience.
Indeed, a 1999 study which
investigated the efect of harsher
sentences on recidivism found that longer
prison sentences were associated with a
three percent increase in recidivism
14
.
Regardless of its ability to prevent people
from committing crimes in the frst place,
it seems that deterrence does little to
inspire obedience in previous ofenders. It
seems likely that more time in prison will
13 Onwudiwe, I., Odo, J., & Onyeozili, E.
Deterrence theory in M. Bosworth (ed.),
Encyclopedia of Prisons & Correctional Facilities
(SAGE Publications 2005) 234-238
14 Paul Gendreau, T. Little and Claire Goggin, A
Meta-Analysis of Adult Ofender Recidivism: What
Works! [1996] Criminology, 34(3) 575, 607
lead to less community ties upon release
and the bitterness mentioned earlier may
rear its head if the ofender feels their
sentence was unduly harsh.
In terms of assessing whether deterrence
afects obedience more generally, various
psychologists have based their research
on other social norms which infuence
compliance, efectively ruling out
deterrence as a factor through process
of elimination. Licht states that all of the
studies in recent years are linked by the
fact they all rely on some underlying
normative premise shared by the subjects
as a precondition for compliance
that is not driven by deterrence.
15

One such study which explores
this idea is a study conducted
by Bohnet and Cooter in 2003
which concludes that co-ordination (the
idea that the law should help people to
predict what others will do) has a much
larger efect on obedience than deterrence.
One of the examples they use to highlight
this is littering, citing the fact laws on
littering are rarely enforced by the police
and yet in some countries, people seldom
litter. Clearly, if the sanctions are so
rarely carried out, this is not as a result
of deterrence. According to Bohnet and
Cooter, people are less likely to litter in
a clean environment where most others
15 Amir N. Licht, Social Norms and the Law: Why
Peoples Obey the Law [2008] 741
do not litter
16
suggesting that conformity,
rather than deterrence, is a decisive factor
in choosing to obey. Recent statistical
evidence would appear to substantiate
Bohnet and Cooters theory. In a 2010
study of the cleanest countries in the world,
Singapore (which has some of the harshest
littering laws on the planet) ranked just
28th
17
based on 25 performance indicators.
Tis would suggest that disproportionately
harsh laws aimed at deterring may have
detrimental efects and gives further
justifcation as to why deterrence does not
appear to be a major motivating factor
behind people deciding to obey the law.
One way to test the insignifcance of
deterrence as motivation to obey the law is
to ponder on what would happen if it did
not exist. If deeds such as murder, assault,
thef and other criminal acts were to go
unpunished, would this lead to an increase
in such acts for the simple reason that
people would know that there would be no
16 Iris Bohnet and Robert D. Cooter Expressive
Law: Framing or EquilibriumSelection? [2003] 18
17 AsiaOne, Spore not in list of cleanest countries
in the world (AsiaOne, 19 February 2011) <http://
www.asiaone.com/print/News/AsiaOne%2BNews/
World/Story/A1Story20110219-264408. html>
consequence? Tis writer does not think
so, instead believing that every person
has a moral code which tells them what
is right and wrong and the law acts as a
safety net to add further protection, rather
than completely guiding people on what
is morally acceptable. Tis inherent moral
awareness is, in this writers opinion, the
frst port of call for people when obeying
the law. Rather than following the law
because it is law
18
, people follow their
own moral code which, most of the time,
coincides with the key principles of the
law. Tyler and Darley appear to favour
this view, arguing that a true law-abiding
society is not one motivated by fear
but rather by a desire to act in socially
appropriate and ethical ways
19
.
Tis concept is succinctly summarised
by Martin Hofman who states that most
people do not go through life viewing
societys moral norms as external,
coercively imposed pressures to which
they must submit
20
. Instead, the law acts
as a confrmation that a persons moral
code is correct. People will ofen refer to
legal authority to back up their own moral
beliefs, rather than using it as a starting
point. Tis can be seen from a very early
age. A young child will know it is wrong
to hit or steal without having referred to
legal authority. It is only when they grow
up that they learn the actions they knew
to be morally wrong are also forbidden
by law. Furthermore, Tyler and Darley
fuel the argument that deterrence pales
into insignifcance when coupled with
individual morality, since the threat of
punishment is not necessary when a
person is following the law because of
their morals. Tey argue that people take
the responsibility for following rules upon
themselves
21
, not because they fear the
consequences if they do not, but
because it is the right thing to do.
Tyler and Darley illustrate this
through a hypothetical scenario
where murder becomes legal. Teir
statement that most people would not
commit murders because murdering
someone would still be contrary to their
18 Amir N. Licht, Social Norms and the Law: Why
Peoples Obey the Law [2008] 726
19 Tom Tyler & John Darley, Building A Law-
Abiding Society: Taking Public Views About Morality
and the Legitimacy of Legal Authorities into account
when Formulating Substantive Law [2001] 707
20 Martin L. Hofman, Moral Internalization:
Current Teory and Research, in Leonard Berkowitz
(10
th
ed.) Advances in Experimental Social
Psychology (Academic Press, 1977) 85-86
21 Tom Tyler & John Darley, Building A Law-
Abiding Society: Taking Public Views About Morality
and the Legitimacy of Legal Authorities into account
when Formulating Substantive Law [2001] 715
Beccaria believes that a person is
motivated not to do evil because of the
law rather than an inherent moral belief.
Disproportionately harsh laws aimed at
deterring may have detrimental efects
Ebor Lex
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own sense of what is right and wrong
22

is a valid one. Te rationale behind most
people not committing murder is not
because they fear the punishment but
is, rather, because they know it is an
immoral action that they could not bring
themselves to commit. To take anothers
life is the ultimate bad deed and, whether
the punishment was life imprisonment
or a 50 fne, most peoples moral codes
would not allow them to go through with
it. A strong moral code also renders the
concept of a legitimate state somewhat
immaterial. In the hypothetical scenario
posed by Tyler and Darley, if our state
legalised murder, society would not
blindly obey this law simply because it
has been laid down by the government.
Instead, there would be protests and
demonstrations by the public to show
the state that such a law would contradict
their moral code. Morality not only
provides an explanation for obedience
to the law, but also goes some way to
show why people disobey or oppose
controversial laws, as seen through the
protests against legalising gay marriage
and the student riots of 2011.
Tis is particularly interesting when
framed in the age-old philosophical
debate on moral ethics. Certainly, the
idea that actions should be carried
because they are inherently right
(and, by the same token, other actions
should not be carried out because they
are inherently wrong) is deontological
in nature. However, Immanuel Kant,
widely believed to be a deontological
theorist, is frmly against the idea of
disobeying laws that contrast a persons
moral beliefs. Instead, he seems to
believe the legitimacy of the state is of
22 ibid, 716
paramount importance when exploring
obedience, stating that it is the peoples
duty to endure even the most intolerable
of abuse of supreme authority [...] [as]
resistance to the supreme legislation can
itself only be unlawful
23
. At frst glance,
Kant appears to be stepping away from
deontology as he is arguing that the law
should be followed because it is law,
rather than because it is the right thing
to do. However, when unpicking his
statement, it still appears to be rooted
in deontological ideas, as Kant is of the
belief the law should be followed because
following the law is the right thing to do,
even if the laws themselves are abusive.
Certainly, Kant places more importance
on the need to do the right thing (ie. to
obey the law) at whatever cost, even if
that right thing contradicts a persons
moral code.
Tis makes the assumption that
everyones moral code is the same
and, as a result, highlights a faw in
the argument that people obey the law
purely on the basis of their own moral
code. Whilst almost everyone would
agree that murder is morally wrong,
peoples morals may shif for less serious
ofences. Some people believe speeding
is inherently wrong but fnd it acceptable
to speed on a motorway when they
have something important to attend.
Some people may fnd it acceptable for
a starving person to steal a loaf of bread,
whilst others believe any kind of thef
is wrong. Tese diferences of opinion
show that it is incredibly difcult to
achieve Kants unifying moral code and
highlight that a world where obedience
23 Immanuel Kant, Te Metaphysical Aspects of
Justice (frst published in 1785, Indianapolis: Bobs-
Merrill, 1965) 86
was based purely on an individuals
moral code would result in never-ending
debates on which actions were right or
wrong due to the sheer subjectivity of
personal morality. Instead, the laws
role as a safety net ensures that, even
where there are diferences in opinion
regarding what is right and wrong, there
is a clear guideline on what the legally
acceptable behaviour is.
Somewhat disappointingly, the
conclusion to this debate lies somewhere
in the middle of the three issues discussed
in this essay. Neither state legitimacy,
deterrence nor personal morals can
claim to categorically infuence law-
abidingness alone, but the combination
of all three go some way to infuencing
the majority of society to obey the law.
Morality appears to be the earliest of
these to take efect and, perhaps due to
this, seems to have the most weighting
in a persons lifetime. Te role of the law,
through state legitimacy and deterrence,
is to provide a benchmark and a certain
amount of clarity where morality
becomes vague or difers from person to
person, allowing for uniform obedience
in society. Razs statement that there is
no general obligation to obey the law
24

still very much stands, as none of the
justifcations discussed in this essay place
any obligation on society to obey the law.
However, so long as people still have a
strong sense of morality and the law acts
as an aid to provide lucidity and ubiquity
through legislation, this writer frmly
believes that, on the whole, obedience
can be achieved without the need for the
general obligation Raz speaks of.
24 Joseph Raz, Authority and Consent [1981]
67 VLR, 103
Whilst almost everyone would agree that
murder is morally wrong, peoples morals
may shif for less serious ofences
9
June 2014
10 11
Liberty, Security, and the
Balancing Metaphor
ship between security and liberty. If the
two concepts can be balanced against each
other, the relationship between the two
concepts must be one of a competitive na-
ture. In his essay Security and Liberty: Te
Image of Balance, Waldron depicts secu-
rity and liberty as being on a sliding scale
against each other; if the level of risk rises,
there is a need for enhanced security mea-
sures and this requires some curtailment
of liberties.
3
Te British counter-terrorism
strategy, CONTEST, has been highly con-
troversial because of its deference to civil
liberties for the purpose of increasing secu-
rity.
4
A string of legislation, the Terrorism
Act 2000 and 5 further Acts, have intro-
duced numerous exceptional measures
which allow the deprivation of liberty for
3 Waldron (n2)
4 CONTEST: Te United Kingdoms Strategy for
Countering Terrorism, HMGovernment July 2011
the purpose of security.
5
Tese exceptional
measures include stop and search pow-
ers, indefnite detention without charge,
TPIMs, control orders and asset freezing
powers. Over 600 people were arrested
in the UK in connection with terrorism-
related ofences in a one year period 2009-
2010. Tis fgure shows the huge remit of
the counter-terrorism legislation. Te fact
that only 58 of these 600 people were later
convicted of terrorism ofences shows how
excessive the widened scope of counter-
terrorism legislation is.
6
Similar is the case
in the United States of America; 800,000
suspects have been detained under the
PATRIOT Act 2001, leading to only 100
5 TerrorismAct 2000, Anti-Terrorism, Crime and
Security Act 2001, Prevention of TerrorismAct 2005,
Terrorism Act 2006, Counter-terrorism Act 2008,
TerrorismPrevention and Investigations Act 2011
6 CONTEST: Te United Kingdoms Strategy for
Countering Terrorism, HMGovernment July 2011
C
ounter-terrorism policy
is designed for the
purpose of protecting
national security against
the threat of terrorism.
1
One of the
main challenges faced by govern-
ments trying to achieve this aim is
that ofen, measures aimed at en-
hancing security require a curtail-
1 HM Government Justice and Security Green
Paper 2011
ment of liberty. A balancing meta-
phor is commonly used to explain
the relationship between liberty
and security; Waldron argues that
we always have to strike a balance
between the individuals liberty to
do as he pleases and societys need
for protection from harm that may
accrue from some of the things it
might please an individual to do.
2
2 Jeremy Waldron Security and Liberty: Te Image
of Balance Te Journal of Political Philosophy: Vol
11 NO 2 2003 pp. 191-210
In this article I will critically analyse the
usefulness of such a balancing metaphor;
by questioning the competitive relation-
ship between security and liberty, the ex-
tent to which it is possible to assess the
importance of liberty and security against
each other, and how in practice the bal-
ance of liberty and security manifests. I
will argue that it is not possible to objec-
tively balance liberty and security against
each other.
Various ideas exist regarding the relation-
Katrina Beveridge
Tis article is continued online at
http://goo.gl/1SgZf0
Ebor Lex June 2014
convictions.
7
However, despite the scope
of these powers, not a great deal is prom-
ised regarding the protection of liberties.
Te British CONTEST policy names as its
principles efectiveness, proportionality
and transparency. Despite this, there have
been numerous cases where civil liberties
have been disregarded by the enforcement
of counter-terrorism measures. Binyam
Mohameds case represents a clear example
of where policy creates a direct confict
between liberty and security. Te Control
Principle within CONTEST refers to cir-
cumstances where the British government
will safeguard secret intelligence gath-
ered by foreign governments and shared
with us on a strictly confdential basis.
8

In the case of Binyam Mohamed, such
intelligence was used by the prosecution
against him and Mohamed appealed for
the disclosure of the evidence, which he
said was obtained through torture. Te
counter-terrorism policy thus potentially
breached his right to not be tortured and
his right to a fair trial under the ECHR. To
summarise, although counter-terrorism
policy does not explicitly address the issue
of conficting interests of security and lib-
erty, the practice of these policies does cre-
ate confict. Tis leads to use of a balance
metaphor to explain security taking prior-
ity over liberty. To overcome this, Zedner
suggests that perceiving tension between
liberty and security is problematic, and an
alternative would be to label the relation-
ship as mutually dependable.
9
7 Tom Bingham, Terrorism and the Rule of Law,
in Te Rule of Law (Penguin Books 2011)
8 HM Government Justice And Security Green
Paper 2011
9 Lucia Zedner, Securing Liberty in the Face of
Terror: Refections from Criminal Justice, (Journal of
Law and Society Vol 32 No 4 Dec 2005)
12 13
T
he appellant, Mrs. Jones,
leads an appeal against
the Secretary of State for
Defence on grounds that,
by ordering a Boeing 747 to be de-
stroyed at 11:24 am on Tuesday
12
th
December 2013, her son, Jerry
Jones, had his Right to Life vio-
lated, which is enshrined in Article
2 of the European Convention on
Human Rights (ECHR). To sup-
plement this claim, the appellant
argues that the order dishonored
her sons human dignity, by treating
him as an acceptable loss to save
others.
Section 2 of Te ECHR states that:
Everyones right to life shall be
protected by law. No one shall be
deprived of his life intentionally
save in the execution of a sentence
of a court following his conviction
of a crime for which this penalty is
provided by law.
1
In response to this appeal, the Minister
of Defence has claimed that his actions
are justifed and completely lawful under
section 2 (2)(a) of the Convention, which
states:
Deprivation of life shall not be
regarded as inficted in contraven-
tion of this Article when it results
from the use of force which is no
1 Convention for the Protection of Human Rights
and Fundamental Freedoms (European Convention
on Human Rights, as amended) (ECHR) art 2
more than absolutely necessary:
(a) in defence of any person from
unlawful violence
2
Whether ordering the destruction of Jerry
Jones fight is justifable under the ECHR
will depend largely on whether any admis-
sible defenses can be called upon to render
a conviction unfeasible under Article 2(a).
Defenses in this instance have proven to be
unusually difcult to apply given the ap-
parent rigidness of the sanctity of life doc-
trine, which protects human right to life,
and these defenses must be argued in light
of this principle, which possibly provides
a barrier for any possible defence, and
would render the positive act of destroying
a plane un-lawful under the Convention.
It is likely, however, that the Minister of
Defence will be able to rely on the defense
2 ibid Art 2(a)
http://goo.gl/Kqtu2Q
Dan Norris
Ebor Lex
of necessity, along with philosophical rea-
soning which could both render a convic-
tion unfeasible. I will frst consider this ap-
peal from a moral perspective, in light of
no actual common law precedence.
Te appellants case rests on the basis that
the Convention cannot justify an act that
treats human beings as acceptable losses
to save others, as doing so violates their
Right to Life
3
, and upsets the sanctity of
life doctrine that exists as a moral prece-
dence. Under certain philosophical rea-
soning, it is held that this argument should
discourage any action that threatens this
right, with no exception.
Arguments that would discourage the de-
struction of a plane in this instance fall
under deontological frames of reasoning.
Tis ethical basis is centered on the con-
cept that the moral righteousness of an ac-
3 ibid Art 2
tion is to be only determined by the action
itself, regardless of the outcome. Immanuel
Kant is the most famous champion of this
principle, and founded the Categorical
Imperative as a moral law to be obeyed in
all circumstances. Such a law can provide
some precedence and guidance that sup-
ports the appeal of Mrs. Jones, and if I can
condemn the act on a moral basis it may
be easier to classify it unlawful under the
ECHR. Te Categorical Imperative states
that, for an act to fulfll moral soundness,
it must be acceptable if applied universally,
every human being must be treated as an
end, and not a means to an end, and peo-
ple must behave like they are the absolute
moral authority of the universe.
4
4 Immanuel Kant, Groundwork of the Metaphysics
of Morals (Cambridge University Press 1998)
June 2014
Terrorism and the Right to Life:
a Hypothetical Judgment
June 2014
14 15
civil liberties. It will be concluded that
the criminal justice system is adequate to
confront the problem efectively.
Part I: Te principled response of
criminal justice
Te wake of the 21st century saw the
Anglo-American societies departing
from the long established criminal justice
responses to terrorism and President Bush
declaring the war on terror, thus shif-
ing the focus from the idea of terrorism
as crime towards the perception of a war
against the United States.
4
Soon afer
the Madrid bombings, the British Home
Secretary announced that the norms of
prosecution and punishment no longer
apply
5
, deviating from Lord Diplocks
criminal justice-oriented report
6
which
guided the Northern Ireland confict
management since 1973.
7
Such events
marked serious derogations from the rule
of law, ignoring proportionality, habeas
corpus and due process. Te strategy
of criminalisation, based on evidence
gathering and special processes in trials
and ofences, started to compete with
executive risk management implemented
through detention without trial, control
orders, port controls, data-mining and
the seizure of assets aiming to prevent
and disrupt.
8
Tese panic legislations,
as they have been characterised,
9
created
certain tensions which eventually led to
the famous statement by Lord Hofman:
the real threat to the life of the nation, in
the sense of a people living in accordance
with its traditional laws and political val-
ues, comes not from terrorism but from
laws such as these.
10
Tus, it is important
to examine these tensions in order to jus-
tify a preference towards criminal justice
based counter-terrorism.
Te frst and foremost tension is created
4 Leonard Weinberg, Democracy and Terrorism;
Friend or Foe? (Routledge 2013) 93.
5 Jessica Wolfendale, Terrorism, Security, and the
Treat of Counterterrorism Studies in Confict &
Terrorism, 30:7592, 2007, 75.
6 See Report of the Commission to consider Legal
Procedures to Deal with Terrorist Activities in
Northern Ireland (Cm3420, London, 1972).
7 Clive Walker, Clamping down on terrorism in
the United Kingdom (2006) 4 Journal of Internation-
al Criminal Justice 1137, 1140.
8 Clive Walker, Keeping Control of Terrorists
without losing control over constitutionalism (2007)
59 Stanford Law Review 1395, 1400.
9 Amos Guiora, Panic Legislation: Te Wrong
Response (JURIST, 8 March 2010) <http://jurist.org/
forumy/2010/03/panic-legislation-wrong-response.
php#.U1fvA1cVDO0> accessed 19 April 2014.
10 A and Others v Secretary of State for the Home
Department [2004] UKHL 56 at [97], Lord Hof-
mann.
by the use of intelligence data rather than
evidence, a strategy which is alleged to
corrode constitutionalism.
11
Te relaxed
standards of proof as opposed to the
beyond reasonable doubt threshold
of ordinary criminal law allow for the
potential suppression or suspension of
rights and liberties without necessarily a
strong basis for a case. As Clive Walker
puts it
12
, intelligence as the trigger for
ofcial action is unpersuasive as it is not
court-cognizable as evidence. Tis is a
fundamental problem for due process
and it relates directly to the pre-emptive
nature of control orders against suspect
terrorists. It ofen leads to miscarriages of
justice, with the Guildford Four
13
and the
Birmingham Six
14
being classic examples
in legal academia
15
which demonstrate
this. Tis strategy efectively reverses the
presumption of innocence and by doing
so discards traditional principles and due
process requirements of criminal law to
prevent imagined sources of harm, as Er-
icson asserts.
16
Tis alternative procedure
essentially asks the juries to join the dots
based on ofen unreliable information
that has traditionally been used merely
for background information rather than
as a case theory in its own right.
17
An ex-
ample of inadequacy of intelligent data to
support a prosecution was the case of Dr
Muhamed Haneef
18
, which spectacularly
fell apart.
19
Te substitution of evidence with intel-
ligence data creates further tensions
relating to the separation of powers, thus
obstructing the course of justice. Te
future of suspects ofen lies in the hands
of less experienced and more politically
motivated government ministers as op-
59 Stanford Law Review 1395, 1401
12 Ibid
13 R v Bow Street Metropolitan Stipendiary Magis-
trate, Ex parte Director of Public Prosecutions (1989)
154 JP 237
14 R. v. McIlkenny, Hunter, Walker, Callaghan, Hill
and Power (1991) 93 Crim. App. R. 287.
15 Emmanuel Pierre Guittet, Miscarriages of
justice and exceptional procedures in the war against
terrorism (2008) Centre for European Policy Studies
Special Report, 2-3.
16 Ericson in Jude McCulloch and Sharon Picker-
ing, Pre-Crime and Counter-Terrorism
Imagining Future Crime in the War on Terror Br J
Criminol (2009) 49 (5): 628-645, 633.
17 Ibid
18 Mark Rix, Te Case of Dr Mohamed Haneef:
An Australian Terrorism Drama with British Con-
nections Sydney Business School - Papers (2009)
126-147
19 David Dixon, Interrogating Terrorist Suspects:
Criminal Justice and Control Process in Tree Aus-
tralian Cases UNSW Faculty of Law Research Series
(2008) vol. 24. 18
http://goo.gl/8nltle
Should suspected terrorists be treated
differently to ordinary criminals
in law and practice?
I
n their perpetual efort to
counter terrorism, vulnerable
states remain unclear as to
what type of measures would
be more efcient and justifable.
1

Regardless of continuous attempts
to secure the contrary
2
, the reality
1 Jonathan R. White, Handbook of Transnational
Crime & Justice (Philip Reichel eds, SAGE Publica-
tions 2005) 68.
2 Brent L. Smith, Terrorism in America: Pipe
Bombs and Pipe Dreams (SUNY Press 1994) 2.
is that suspect terrorists have long
been and ofen still are treated dif-
ferently from ordinary criminals.
At the heart of the issue lies a dilemma
with two possible responses: should
suspect terrorists be dealt with within
the ordinary criminal justice systems
or with exceptional measures of control
and coercion? It is a difcult question
to answer in absolute terms. Frequently,
the two approaches appear fused in a
hybrid.
3
Tis article supports a principled
response arguing for the criminal justice
model over the war model. It will be
demonstrated in three parts that (i) there
are compelling reasons why the criminal
justice safeguards should be upheld; (ii)
the war model cultivates the tendency of
exceptionalism, which eventually leads to
(iii) the normalisation of extreme mea-
sures, thus suppressing human rights and
3 Jude McCulloch and Sharon Pickering, Pre-
Crime and Counter-Terrorism
Imagining Future Crime in the War on Terror Br J
Criminol (2009) 49 (5): 628-645, 631.
Nick Kontraros-Tsiokos
Ebor Lex
posed to detached judges.
20
When imple-
mented, the special control measures are
managed by the openly partial govern-
ment and executed through distinctions
between friend and foe, ally and enemy,
but not necessarily guilty or innocent.
21

Due to the charged climate generated by
threat, addressing counter-terrorism in
the framework of criminal justice helps
ensure that reason prevails, and facts lead
to conclusions, as opposed to emotions.
22

Problems of impartiality also arise due to
the lack of a widely agreed defnition of
what actions and which persons consti-
tute terrorism and terrorists. Te absence
of evidence can allow politics and politi-
cians determine who is a terrorist or not
and what qualifes as an act of terrorism,
as opposed to judges.
23
Tis controversy
is illustrated with the example of Nelson
Mandela; labelled a terrorist by Margaret
Tatcher
24
, though honoured by David
Cameron in his memorial several decades
later.
25
59 Stanford Law Review 1395, 1402
Crime and Counter-Terrorism: Imagining Future
Crime in the War on Terror Br J Criminol (2009) 49
(5): 628-645, 632
22 Nathan I. Yungher, Terrorism; Te BottomLine
(Pearson Prentice Hall 2007) 266-268
Crime and Counter-Terrorism: Imagining Future
Crime in the War on Terror Br J Criminol (2009) 49
(5): 628-645, 631
24 Anthony Bevins, Nelson Mandela: Fromterror-
ist to tea with the Queen (Te Independent, 09 July
1996) < http://www.independent.co.uk/news/world/
from-terrorist-to-tea-with-the-queen-1327902.
html> accessed 19 April 2014.
25 Nelson Mandela memorial: Obama lauds
giant of history (BBC, 10 December 2013) <www.
bbc.co.uk/news/world-africa-25311513> accessed 19
April 2014
H
as the increase in the
use of technology neg-
atively outweighed its
efectiveness in human
rights activism and defence? Tere
is a universal human right to freely
express an opinion without repres-
sion or fear of reprisal the right to
freedom of expression.
Despite the protection aforded by the
United Nations Declaration on Human
Rights Defenders
1
, human rights defend-
ers (HRDs) carry out their work in fear of
violence directly or indirectly caused by
their governments. As technology has de-
veloped, HRDs have utilised the internet,
mobile phones, email and social media to
make the world aware of the human rights
violations occurring in their country. On
the one hand, technology has arguably
made it easier to carry out their work, but
on the other, technology remains in the
control of the government and develop-
ers of such technology, to the extent that
1 United Nations Declaration on the Right and
Responsibility of Individuals, Groups and Organs
of Society to Promote and Protect Universally Rec-
ognized Human Rights and Fundamental Freedoms
privacy is ofen overlooked. HRDs require
a measure of privacy in the technology
that they employ. Without privacy, com-
munications can be intercepted and the
whereabouts of HRDs can be uncovered
through metadata packaged with email
attachments and photographs posted to
social media sites and networks. Tis has
led to a game of cat and mouse whereby
the HRDs and non-governmental organi-
sations (NGOs) develop tools to circum-
vent system defaults which allow surveil-
lance of communications, and as a result
of their eforts, governments and private
companies create tools which fght back
and restore their ability to hijack commu-
nications and track users online.
It can be argued that technology has
also empowered activists. Before the in-
crease in the use of technology, human
rights movements operated with a more
physical presence. Tis meant protesting
in person to rally governments to keep
to their obligations under international
conventions. More ofen, we now see that
the human rights movement has utilised
the digital online space to protest against
the political powers of their constituent
countries because some governments
are so oppressive that no domestic human
rights movement can exist openly
2
, and
to escape the risk of violence, the use of
technology removes almost all threat.
Technology will have almost directly
impacted the number of cases of physi-
cal infictions of violence from govern-
ments on HRDs. In essence, technology
has begun to address the imbalance of the
power of state and citizen.
Technology has empowered HRDs, from
the men and women on the ground at
the frontlines, all the way up to the many
2 Kenneth Roth, Te Abusers Reaction: Inten-
sifying Attacks on Human Rights Defenders, Org-
nizations (sic), and Institutions (2010) 16 Brown
Journal of World Afairs 15, 17
national and international NGOs. With
nearly a third of humankind online, the
internet ofers increased communica-
tions and data gathering potential to
HRDs. Social media sites such as Face-
book and Twitter have given all HRDs
the ability to send messages, pictures and
videos quickly and easily to a vast audi-
ence across the world. NGOs can now
beneft from the scale and pace at which
social media tools operate. Te beauty of
the use of Facebook and Twitter is that
with these sites being based in forward-
thinking nations, there are little barri-
ers to free expression enabling HRDs to
communicate as they wish to convey the
The Dark Side of Technology in the Defence of Human Rights
Adam Woodley
17 16
Ebor Lex June 2014
Ebor Lex
18 19
real issue at stake. Additionally, a global
audience means that oppressive govern-
ments are put under pressure from other
nations to respect human rights and fun-
damental freedoms.
To aid in data collection, there is a sofware
package in use by human rights activ-
ists that helps to systematize information.
Te sofware is designed to facilitate the
collection of detailed stories, and to turn
those stories into data that can be used to
present a complete and accurate picture of
human rights violations
3
. Te diferent
forms of technologies can be summed up
into two groups: data collection and com-
munications technologies. One has the
power to collect information on human
rights abuses, and the other, to let the
world know about those abuses.
What makes social media and email so ef-
fective? It may be argued that, compared to
previous methods of communication, the
speed of data transmission and the quality
of the technology itself, have beneftted
HRDs and even contributed to saving
lives. Even in the general sense, for social
justice activists, the speed with which news
now crosses the globe creates a tremen-
dous opportunity to respond to human
rights issues as they emerge
4
. Before,
NGOs and HRDs would write letters,
3 Ofce of the High Commissioner for Human
Rights, New Technologies and Human Rights
Monitoring (OHCHR, 6-7 August 2012) <http://
www. ohchr. org/ Document s / HRBodi es / SP/
AMeetings/20thsession/NewTechnologiesBriefng_
item5.pdf> accessed 8 January 2014
4 Hans Toolen, Te double face of technology for
Human Rights Defenders (Hans Toolen on Human
Rights Defenders, 13 November 2013) <http://
thoolen.wordpress.com/2013/11/13/the-double-
face-of-technology-for-human-rights-defenders/>
telling stories of human rights violations.
Now they can present these stories to
a much broader network of individuals,
each of whom raise their voice and stay in-
formed in real time and with various social
media tools
5
. It has been argued that, for
example, if torture is to be prevented two
criteria are fundamental: speed of reaction
and the ability to reach bodies capable of
taking actions
6
. Social media in the form
of Facebook, Twitter and email can give
the means to fulfl those criteria. Te speed
of reaction is lef largely in the hands of the
people on each end of the transmission as
technology now allows instantaneous data
circulation. Fulflling the second element
of the criteria is more difcult. Firstly, you
may choose email and this requires having
the email address of the individual or body
whom you wish to make contact with.
Otherwise, you may build up a network
of people who communicate directly with
NGOs, governments and international
human rights committees and they will be
relied upon to pass the message forward.
Secondly, there is Facebook, Twitter and
online blogs. Tey are less targeted forms
of communication but give the ability to
make stories viral or better still, national
and international news where it will cer-
tainly reach the right body capable of
taking strategic action.
Let us look now at the use of networks.
We are not discussing here the use of the
internet as a network (though, these net-
5 Samir Goswami, How Technology Is Helping
Us Better Protect Human Rights (Hufngton Post,
11 November 2013) <http://www.hufngtonpost.
com/samir-goswami/technology-is-helping-human-
rights_b_4235715.html> accessed 8 January 2014
6 Steven Hick, Edward Halpin and Eric Hoskins,
Human Rights and the Internet (Macmillan Press
2000) 82
works require an internet connection),
but instead, networks which aid a specifc
part of the work of a HRD. Te use of net-
works has meant that communicating with
members and partners of NGOs is now
almost never paper based
7
. Paper-based
documents are slow to send and receive
and are arguably easier to compromise.
Additionally, on a network you are able
to send documents to as many people as
you wish and you are able to encrypt fles
to keep them secure. Overall, networks
are capable of mass communication that
is safe and instantaneous and this helps
HRDs substantially.
Amnesty International (AI) took advan-
tage of networks when they set up their
Urgent Action network (UA) in 1976 to
permit an immediate and dramatic re-
sponse to a situation where there is a grave
risk that someone will be tortured or killed
and where time is of the essence
8
. Te
network consists of members who have
agreed to be on standby to promptly send
appeals on new cases to coordinators who
fle the appeals in the country where the
case occurred. Such an immediate re-
sponse to human rights violations would
be impossible without technology.
Networks with many contributors have
been developed through accessible sof-
ware applications built for specifc purpos-
es. For example, Van Jones, a HRD from
the United States, advocates against police
brutality. His NGO, Bay Area Police
Watch, has designed a computer database
that allows them to track problem ofcers,
7 Ibid, 77
8 Laurie Wiseberg, Protecting Human Rights Ac-
tivists and NGOs: What More Can Be Done? (1991)
13 Human Rights Quarterly 525, 532
precincts and practices. Van Jones claims,
At the click of a mouse we can now iden-
tify trouble spots and trouble-makers
9
.
Doing this without advanced technol-
ogy is not impossible, but would require a
lot of efort to keep up to date, would be
cumbersome and would not be accessible
by contributors across the country. Tus,
sofware gives great processing power to
HRDs, requiring less work and ultimately
meeting greater goals with a greater audi-
ence. However, technology can only be
relied upon up to a certain point, afer
which it becomes the job of the HRDs to
process the information. With the surplus
of information we see now, it would
require tremendous manpower to use the
data collected.
On the dark side, the creation of new
9 Kerry Kennedy, Speak True To Power (Crown
Publishers 2004) 68-69
methods of working bring new faws and
opportunities for others to exploit those
faws. Whilst governments are generally
resistant to change (especially with regards
to human rights), their eforts to combat
HRDs have evolved. Tere is a long,
sordid history of human rights defenders
being censored, imprisoned, mysteriously
disappearing, or killed. But in recent
years, the silence-the-messenger eforts of
many governments have grown in subtlety
and sophistication.
10
Te increase in use
of technology has given governments the
ability to pursue their interests in a more
covert way; the use of technology has
started a game of cat and mouse.
Tere are distinctly three examples of how
10 Kenneth Roth, Te Abusers Reaction: Intensi-
fying Attacks on Human Rights Defenders, Orgniza-
tions (sic), and Institutions (2010) 16 Brown Journal
of World Afairs 15, 16
technology can decrease the capacity of
HRDs to carry out their work. Tose are
(1) hacking and data thef (2) tracking; and
(3) privacy concerns. Hacking and data
thef concerns the practice of governments
and private organisations that intentionally
break through security measures that have
been put in place to protect the data and
prevent anyone but the targeted recipient
from viewing the data. Some governments
go further than monitoring HRDs, as
emails [are] being read, forwarded, modi-
fed and deleted.
11
Additionally, sofware
is installed on activists computers which
records activity including passwords that
then enables oppressive regimes to steal
computer fles and compromise further in-
ternet services used by HRDs.
11 John Lannon and Edward Halpin, Human
Rights and Information Communication Technolo-
gies: Trends and Consequences of Use (IGI Global
2013) 161
Doing this without advanced technology is not
impossible, but would require a lot of efort to keep
up to date, would be cumbersome and would not be
accessible by contributors across the country.
Te Arab Spring was underpinned by technol-
ogy, which is indicative of the signifcant role it plays
in modern conficts
June 2014
Ebor Lex June 2014
20 21
Governments can track a users online
activity to fnd where the connection
originates and fnally determine who and
where the targeted person is to take action
against that person. One of the problems
is that the digital technologies and tools
people tend to use to expose rights abuses,
however, are designed with unprecedented
tracking and archiving abilities.
12
Many
HRDs respond to this by concealing their
identity or by creating a public profle
to mask their identity or location. One
method of doing this is to use Tor, which
runs on the onion network. Governments
see the use of Tor as a threat and have
decided to call them dark networks
13

because some activity carried out on the
network is criminal in nature. Tis has
fuelled the cat and mouse game once again,
creating a justifcation for governments to
intensify surveillance. Marta is a Hondu-
ran HRD and operates within a network of
human rights investigators and chooses to
use Tor to encrypt her internet trafc and
routes it via remote computers, masking
the location of her internet activities.
14

Technology continually changes unlike old
methods of paper-based communication
and to counter the use of dark networks,
Raytheon the worlds ffh largest defence
contractor
15
has created an extreme-scale
analytics system.
16
Te secretly devel-
oped sofware [is] capable of tracking
peoples movements and predicting future
behaviour by mining data from social net-
2013) 162
13 Ibid, 158
14 Tanya OCarroll, Mobile technologies helping
activists and human rights defenders (Ethical Con-
sumer) <http://www.ethicalconsumer.org/ethical-
reports/mobilesreport/activism.aspx> accessed 8
January 2014
15 Ibid
16 Ryan Gallagher, Sofware that tracks people
on social media created by defence frm (Guardian,
10 February 2013) <http://www.theguardian.com/
world/2013/feb/10/software-tracks-social-media-
defence> accessed 8 January 2014
working websites.
17
Tis is both a tracking
and privacy concern. It is safe to say that
such powerful technology in the hands of
private companies and governments will
inevitably be used in a malevolent way to
further the oppressive regimes aims the
problem is that there is no one to safeguard
the use of the technology and surely it may
be regarded as an infringement of the right
to a private and family life
18
if the data was
mined from social networking sites where
a user has fnely tuned their security set-
tings to only allow friends and family to
view their content. Dangerously, the Riot
technology can break through that secu-
rity and makes it possible so that intelli-
gence gathering can now be carried out as
desk research that would have previously
taken more resources and time to gather.
19
For all HRDs, privacy is of the utmost
priority. HRDs fail to protect themselves
because they assume that the technol-
ogy in use is secure. New technologies
allow companies and the state to monitor
private communications
20
. In response
to technological advances, emerging and
proposed privacy laws legitimise and allow
new levels of surveillance on citizens of the
state
21
. HRDs also send their material to
organisations under the false impression
that their data is safe. Even sofware that
HRDs use on their secure devices with
a secure connection are not safe. Basem
Fathi, a HRD from Egypt said: we were
using Skype for a long time thinking that it
was protected and secure.
22
Te problem
is that many users dont think through the
potential misuse of the content they will-
ingly contribute and dont look ahead to
the profle they are building of themselves
when services and networks become inter-
17 Ibid
18 European Convention for the Protection of
Human Rights and Fundamental Freedoms, Article 8
2013) 166
20 Ibid, 160
21 Ibid, 160
22 Ibid, 163
linked.
23
Algerian blogger Abdelghani
Aloui failed to do this and shared photos
and caricatures of the President and Prime
Minister on his Facebook account.
24
Using
his own name and failing to secure his
profle, the government was able to locate
and detain Aloui. Tat is the chilling efect
of the rise of technology and failure to
change with technology and maintain a
perimeter of safety without reliance on
technology.
In sum, technology has empowered citi-
zens in the fght against government for
the protection of human rights and fun-
damental freedoms. It is much safer to
protest against governments online than it
is to do so in person. Te internet is now
so widespread that it enables more HRDs
to connect with each other and with NGOs
to instantaneously share data on human
rights violations. Te internet and social
media allows HRDs to push stories of
human rights violations, with a little help
from an engaged audience, into national
and international news and press which
aids HRDs and NGOs by adding pressure
to governments to follow their human
rights obligations. Activists are able to
deal with violations swifly and in an ap-
propriate fashion such as AIs UA network.
On the other side of these arguments is
the exploitation of technology. Hacking
HRDs gives the ability for private compa-
nies and governments to monitor and steal
data. Tey are then able to use this data to
locate a person and fnd his/her identity to
take action against that person, no matter
the steps taken to prevent this. However,
technology has not decreased the capacity
of HRDs to carry out their work as each
disadvantage is more than compensated by
the power of technology.
23 Ibid, 166
24 Amnesty International, Algeria: Release blogger
held for sharing photos on Facebook (Amnesty In-
ternational, 15 October 2013) <http://www.amnesty.
org/en/news/algeria-release-blogger-held-sharing-
photos-facebook-2013-10-15> accessed 8 January
2014
Many users dont think through the potential misuse of the
content they willingly contribute and dont look ahead to
the profle they are building of themselves when services
and networks become inter-linked
To whom it may concern,
I
write in defence of human-
ity. Te issues raised in this
letter, though philosophical at
their core, have practical im-
plications throughout the world.
Indeed faced with the recent politi-
cal liberations in Northern Africa
and the Middle East, the answer to
the question is immoral law, still
binding law? has scarcely been
more relevant
1
.
I propose that at the heart of law is the
1 Egypt: Afer the Revolution (BBC News, 25
January 2013) <http://www.bbc.co.uk/news/world-
middle-east-21199124> accessed 21 December 2013
Libya: Te Fall of Gaddaf (BBC News, 20 October
2011) <http://www.bbc.co.uk/news/world-afri-
ca-13860458> accessed 21 December 2013
search for justice, a concept based in mo-
rality, and so law without morality is ill-
deserving of legal title.
Te concept of separating law from mo-
rality, championed by Professor Hebert
Hart
2
, gained much favour through the
nineteenth and twentieth century. I fear,
that if this trend prevails, legislators and
judiciaries risk losing sight of what is most
2 HLA Hart, Positivismand the Separation of Law
and Morals [1958] 71 Harv.L.Rev. 593 - 629
Where justice is not even aimed at, where equality,
the core of justice, is deliberately disavowed in the en-
actment of a positive law, then the law is not simply
false law, it has no claim at all to legal status
Gustav Radbruch
Is there justice without morality?
Open Letters to the Legal
Minds of the World
Ben Greene
Ebor Lex June 2014
22 23
important. For what is the purpose of law
if not to enhance the quality of human ex-
istence? Following a brief examination of
the inherent dangers in Harts theory, I will
justify my conviction that immoral law
is not law at all. In my defence of the in-
separability theory, I seek to champion the
formula of Gustav Radbruch; a man who
sought to unite the concepts of natural law
and positivism in a practical and universal
way.
Legal positivism defnes law by its proper
creation. It was Harts belief that a rule
became law once it has been posited by
an appropriate authority according to due
process, regardless of content. Tus posi-
tivism claims to serve one high moral idea;
that of fdelity to the rule of law. It rejects
implicitly the ideals of natural law such as
those posited by Saint Tomas Aquinas
and, more recently, John Finnis
3
. In Posi-
tivism and the Separation of Law and
Morals
4
, Hart sees no necessary connec-
tion between law and morality; nor, wor-
ryingly, does he see any need for one.
Tis is indeed troublesome. Such an ap-
proach makes it possible for the most
heinous whim of an unscrupulous leader
to become binding in law. I encourage all
positivists, such as Hart
5
, to consider Adolf
Hitlers Destruction of Lives Unworthy of
Life Order, which extended his genocide
program in 1939. Tis concept surely hor-
rifes all humans on a fundamental level,
yet following positivist theory we have
no choice but to accept it as law. Tis in
turn provides indemnity for people who
commit hideous actions, claiming to be
nothing more than instruments in a system
of aggression towards a population. Judge
Jackson at the Nuremburg trails, advocat-
ing for morality
6
, identifes this problem:
Te real complaining party at your Bar
is Civilization. . . the refuge of the de-
fendants can only be that international
law will lag so far behind the moral
sense of mankind that conduct which
is a crime in a moral sense must be re-
garded as innocent by law.
7
Te question we must ask is, if a rule does
not liberate but oppresses, does it merit
3 John Finnis, Aquinas Moral, Political, and Legal
Philosophy (Te Stanford Encyclopaedia of Philoso-
phy, 2011 Fall edn)
4 Ibid 5
5 HLA Hart Law, Liberty and Morality (Stanford
University Press 1963)
6 Lord Devlin, Te Enforcement of Morals
(Oxford Paperbacks 1968)
7 Te Nuremburg Precedent <http://www.la-
rouchepub.com/impeach_ridge/ridge_5.html> ac-
cessed 18 December 2013
legal status? Positivism suggests it does; I
beg you to think otherwise.
If we accept that not everything is able to
become law, then what can? My earlier pro-
posal, that law ought to enhance human
existence, is founded on work by the early
Italian philosopher Saint Tomas Aquinas
8

He suggested that there were three re-
quirements for valid law. Te frst was that
law should do general good which was a
prevalent view at a heavily religious period
of history
9
. Second, it should be made by
and approved by a community leader and,
third, promulgated to the people; require-
ments which form the basis of positivism.
Aquinas surmised that law created without
good reason was not deserving of legal
status:
Human law is law when it accords with
right reason, and as such it obviously
derives from the eternal law. But when
it deviates from reason it is lawless, and
is more a kind of violence
10
Hart questions whether morality is essen-
tial in defning something as law. I suggest
that law without a moral basis should also
be considered as a kind of violence, and
does not merit the title of law. In conse-
quence we return to the question, can law
bind us if it had no beating moral heart?
Any attempt to justify an indivisible con-
nection between law and morality requires
a brief examination of morality itself. Mo-
rality has been a fundamental component
in the development of our legal system.
Te morality I speak of is not an elusive,
subjective concept but an objective moral-
ity with clear and defned boundaries. Te
frst legislators created statute based on
their own moral views but this, in time, has
shaped law into a moral persona of its own.
A persona founded in conscience, religion,
social norms and concepts of common
decency and of fair play
11
. Some claim that
this persona has lost clear defnition as a
blend of cultures and beliefs now infuence
the legislation, but this does not mean its
intrinsic value is lost. I seek to persuade
you that morality is not only integral to law
but vital to its survival.
Te morality of law can be seen both in
8 Finnis (n 4)
9 St Matthew, 25:31-46
10 R Pasnau, Tomas Aquinas on Human Nature:
A Philosophical Study of Summa Teologiae (Cam-
bridge University Press 2002) 79
11 Lon. L. Fuller, Positivism and Fidelity to Law
A reply to Professor Hart [1957] 71 Harv.L.Rev
630-673
process
12
and in substance
13
. Tis letter
demands that legislators must keep morals
at the heart of substantive law. Fuller
alleged that if the process of creating legis-
lation was moral then the law created was
binding. Whilst his desiderata are desir-
able, even admirable, these qualities fail to
solve our problem; abiding by Fullers de-
siderata even the most destructive piece of
legislation could still become law.
At this point I wish to introduce Gustav
Radbruch, a man whose work, attempt-
ing to balance positivism and natural law,
I endorse. Gustav Radbruch was indeed an
extraordinary legal philosopher
14
. Never
before had anyone attempted to bring to-
gether two doctrines which were previ-
ously deemed incompatible; that of posi-
tivism and that of natural law. Originally
considered a positivist (although a minor-
ity dispute this
15
), he witnessed the damage
unjust law was capable of; during the Nazi
occupation of Germany. His change in at-
titude, brought about by a catastrophic
tragedy, is a powerful statement and his
post-war works
16
are since credited with
the revival of the natural law thesis.
Radbruchs states:
Te confict between justice and legal
certainty should be resolved in that the
positive law, established by enactment
and power, has primacy even when its
content is unjust and improper. It is
only when the contradiction between
positive law and justice reaches an in-
tolerable level that the law is supposed
to give away as false law [unrichtiges
Recht] to justice. It is impossible to
draw a sharper line between cases of le-
galized injustice and laws which remain
valid despite their false content. But
another boundary can be drawn with
the utmost precision. Where justice is
not even aimed at, where equality the
core of justice is deliberately disa-
vowed in the enactment of a positive
law, then the law is not simply false law,
it has no claim at all to legal status
17
Most examinations of this formula sepa-
rate out two concepts. Robert Alexy sepa-
rates them into: the intolerability formula
12 Lon L. Fuller,Te Morality of Law (Yale Uni-
versity Press 1969)
13 Craig Paterson Aquinas, Finnis and Non-natu-
ralism [2006] PATAFA 171
14 Heather Leawoods, Gustav Radbruch:
An Extraordinary Legal Philosopher [2000] 2
Wash.U.J.L.&Poly 489-517
15 Ibid 18
16 Paulson BL and Paulson SL, Gustav Radbruch:
5 minutes of Legal Philosophy [2006] 26 1 O.J.L.S.
13-15
17 Ibid 15
(law becomes invalid when justice reaches
an intolerable level) and the disavowal
formula (when equality, the core of justice,
is not even aimed at in the process)
18
.
Radbruch has the word justice not moral-
ity at the heart of his theory. I submit that
morality, in a legal context, is synonymous
with justice. Any attempt to defne justice
is likely to include references to fairness or
rightness
19
. If not from morality, where do
these concepts of fairness and rightness
come from? Surely the way we describe
the foundations of such concepts is in
reference to morality? I now draw on the
words of Martin Luther King in further-
ance of my assertions; as few have voiced
a demand for the inseparability of law and
morality more eloquently, nor on such a
public stage, in recent times:
A just law is a man-made code that
squares with the moral law, or the law of
God. An unjust law is a code that is out
of harmony with the moral law. To put
it in the terms of St. Tomas Aquinas,
an unjust law is a human law that is not
rooted in eternal and natural law . . . I
would agree with St. Augustine that an
unjust law is no law at all.
20
I now wish to assure you that this question
is far more than purely academic. Tere
have been several notable applications of
this debate in courts of law. Te following
three scenarios show how our debate can
infuence the legal decisions directly.
Afer the downfall of the Nazi regime,
Radbruchs work was thrust under the
spotlight by the challenging cases of spite
informers
21
. Tese people sought to use
Nazi law to their advantage and turned in
their personal enemies to the regime, fully
aware they would be killed. Positivist rea-
soning protected these people, as under
Nazi law their actions were lawful. Hart,
understanding that such abhorrent behav-
iour is deserving of punishment, suggests
that issuing a retrospective statute crimi-
nalising their actions is our only option
22
.
Tis solution seems far from satisfactory
and almost hypocritical. Non-retroactivity
is one of the key fundamentals of the rule
of law which positivism claims fdelity to.
18 Ibid 16
19 Usborne English Dictionary (Usborne Publish-
ing 2000)
20 Dr. Martin Luther King Jr., Letter from a Bir-
minghamJail (1963)
21 Frank Haldemann, Gustav Radbruch vs Hans
Kelsen: A debate on Nazi Law (2005) 18 2 Ratio Juris
162-178
22 Hart (n 3)
Te question we must
ask is, if a rule does not
liberate but oppresses,
does it merit legal
status?
Positivism suggests it
does; I beg you to think
otherwise.
Morality, in a legal
context, is synonymous
with justice. Any
attempt to defne
justice is likely to
include references to
fairness or rightness.
If not from morality,
where do these
concepts of fairness
and rightness come
from?
Surely the way
we describe the
foundations of such
concepts is in reference
to morality?
Ebor Lex June 2014
24 25
In the most famous case of this kind
23
, the
Bamberg court convicted Ms Puttfarken
of the murder of Mr Gottig, not because
the statute was contrary to the sound con-
science and sense of justice of all decent
human beings
24
, (as Hart mistakenly
translated in his earlier work) but because
Puttfarkens actions were so. We see here
a reluctance to fully apply Radbruchs
formula, although this may be politically
motivated. Declaring the statute void
would have criminalized the behaviour of
Justice Nordhausen who had applied this
legislation.
25
Tere have however been two examples
of direct application. Te German Federal
Constitution court condemned Decree 11
of the Reich Citizenship Law
26
as invalid.
Te law stated, the property of Jews who
have lost their nationality by virtue of the
Decree, becomes the property of the Reich
with the loss of nationality
27
. Te court
concluded that the legislation so evidently
contradicted the fundamental principles of
justice . . . it must be regarded as void from
the outset. Tis allowed Jews to reclaim the
property they had lost in restitution. Tis
reasoning was followed more recently in
the 1996 decision
28
to convict soldiers of
23 Tomas Mertens, Radbruch and Hart on the
Grudge Informer: A reconsideration (2002) 15 2
Ratio Juris 186-205
24 Ibid 26
25 Ibid 24
26 Reich Citizenship Law 1941, Decree 11
27 Ibid 26
28 R Alexy, A defence of Radbruchs Formula in
D Dyzenhaus Recrafing the Rule of Law: Te Limits
of Legal Order (Hart Publishing Oxford 1999) 15-39
the Berlin wall shootings for manslaugh-
ter. Drawing on Articles 6 and 12 of
ECHR
29
and Radbruchs formula directly,
the German Federal court reiterated that,
although the threshold must be a high one,
justice must supersede law if necessary to
protect humanity:
Te ofence must be so weighty that
it violates the legal convictions of all
nations in regard to peoples worth and
dignity. Te contradiction between
positive law and justice must be so in-
tolerable that the law has to give way to
justice as a false law
30
It is my belief that we may see this debate
resurface as revolution challenges long-
standing governments in the Middle East
and Africa. Populations, empowered by
the concept of human rights, may well try
and claim compensation or restitution for
their past losses: whether this is a Cam-
eroonian national, jailed for the crime of
homosexual activity
31
, or women in the
Middle East for gender discrimination.
Te courts in these countries will have
to address the concerns I have discussed
today and provide answers of their own.
I hope sincerely that they keep laws quest
for justice at the heart of their reasoning.
29 European Convention on Human Rights, Ar-
ticles 6, 12
30 Ibid 30
31 Cameroon: Court Upholds Unjust Homosexu-
ality Conviction (Human Rights Watch) <http://
www.hrw.org/news/2012/12/18/cameroon-court-
upholds-unjust-homosexuality-conviction>accessed
03 January 2014
Radbruch acknowledges that his solu-
tion is imperfect. He understands that he
seeks the lesser of two evils. He appreciates
that legal certainty, a desirable, even fun-
damental concept in law, is compromised
in the application of his formula. Leaving
aside the pedantic argument that pure
legal certainty is impossible because of the
fuid nature of language, we must question
the value of a certain concept if it results in
injustice, inequality or damage to human
dignity. We must seek a balance. Rad-
bruch realizes there is no standard appli-
cation of justice; no universal formula we
might apply in determining just outcomes.
I propose that fexibility is integral to the
concept of justice and, therefore, law.
Justice should be the focus of all law. Mo-
rality, which must not be seen as an impos-
sible concept, is integral to this concept.
I support Radbruchs assertion that law
without any attempt to seek justice has no
claim at all to legal status. Positivism sees
law as a system of social control designed
to regulate human existence. Natural law
may be imperfect and its fexibility brings
inherent uncertainty. However, its motives
are good and righteous, seeking truth and
liberation. I believe Radbruchs formula is
the best compromise of the two systems
anyone has developed and I urge you to
take his reasoning to heart.
Regards,
A.N Author
In response to Authors An Open Letter to
the Legal Minds of the World:
A
uthors passionate
defence of the insepa-
rability theory is admi-
rable. My brief response
details two concerns. It is my belief
that Author vastly underestimates
the complexity of morality, and that
the important ideal of legal certain-
ty should not be so easily sacrifced.
Please be under no illusion that morality is
a simple concept. Indeed it is as difcult to
defne as the concept of justice, Radbruch
bases his formula upon. Authors proposal
that legal morality is an objective concept
is under-evidenced and dangerously uni-
versal. It is my belief that morality may
refect both subjective and objective quali-
ties. In either case, pin pointing the stand-
ards that this objective morality adheres
to is as much guess work as an act of ju-
risprudence. Tis is never more apparent
than with Authors condemnation of the
subjugation of women in the Middle East.
He fails to recognise that a call for morality
to be included in law would fail to address
the problem. Te social divide between
genders is imbedded in Arabic culture and
religion, both of which inform their soci-
etys moral compass.
I would not go so far as to say that Rad-
bruchs epiphany makes him a hypocrite
(I reject emphatically the assertion of Lea-
woods that Radbruch never changed his
philosophical position
32
), but he seems far
from comfortable with the ideas he posits
in his formula. He repeatedly over-empha-
sises that justice should only supersede
32 Leawoods (n 16)
positive law in very exceptional circum-
stances, something, as Author points out,
the German Federal Court supports. Tis
reinforces the inherent danger of prioritis-
ing vague principles, such as morality and
justice, over literal statue interpretation.
Legal certainty is a core principle in the law
of our country. Its importance is summed
up beautifully by Lord Bingham,:
Te law must be accessible and so far
as possible intelligible, clear and pre-
dictable . . . Questions of legal right and
liability should be resolved by the appli-
cation of the law and not the exercise of
discretion
33
I feel certain he would have supported
Harts proposal that retrospective crimi-
nalization, in the cases of spite inform-
ers, is by far the lesser of two evils. Surely,
it is better that we can accurately de-
scribe something as law and then have it
revoked, than to pass legislation and have
people uncertain of its legal worth from
the outset. Uncertainty is created in both
cases; but this is a distinction with a difer-
ence. Retrospective acts have been enacted
in the past with great success
34
. Te public
must be assured such acts are necessary
exceptions but surely that is better than not
knowing whether the courts will apply any
given law you follow?
I ask you to examine the case of Southwark
LBC v Williams
35
. Te defendants, in dire
need of accommodation entered empty
houses owned by the Southwark London
Borough Council as squatters. Teir
defence was a plea for justice and equality.
In defence of legal certainty, I call on a man
whose life work has been the prioritisa-
tion of equity and justice. Lord Dennings
33 Bingham, Te Rule of Law (Allen Lane 2010)
34 War Crimes Act 1991
35 Southwark LBC v Williams [1971] Ch 734
judgement surprised many. He stated that
if a starving beggar takes the law into his
own hands and steals food he remains
guilty of thef:
Necessity would open a door which no
man could shutIf hunger were once
allowed to be an excuse for stealing the
plea would be an excuse for all sorts of
wrong doing. Te courts must take a
frm stand
36
Tis demonstrates one of the foremost
champions of natural law of this genera-
tion, prioritising the written law, even if
the consequences appear unjust. An ap-
plication of natural law might condone
the thef of bread, in support of human
dignity. Denning understands that inclu-
sion of such principles in our legal system
leaves boundaries increasingly blurred.
Clarity is one of Fullers key desiderata
and if the law is not clear, to legal ofcials
and its subjects, then surely it is efectively
worthless?
Tis is a controversial area of law and
I agree with Neuhaus
37
that it is likely to
remain so forever. Yet I implore you, not
to disregard Authors work, but to treat his
assertions with care. Be wary of the con-
sequences of prioritising the principles of
justice and morality; whilst individual de-
cisions may seem fair, it is a shaky princi-
ple on which to found a legal system.
Yours
A.N Other
36 Ibid 37
37 Paul Heinrich Neuhaus, Legal Certainty versus
Equity in the Confict of Law (1963) 28 LCP 795-807
He fails to recognise that a call for morality to be included
in law would fail to address the problem. Te social divide
between genders is imbedded in Arabic culture and religion,
both of which inform their societys moral compass.
Surely, it is better that we can accurately describe
something as law and then have it revoked, than
to pass legislation and have people uncertain of
its legal worth from the outset.
26 27
Ebor Lex
A
lthough the internation-
al community sets the
parameters for freedom
of expression, viola-
tors have routinely found them-
selves able to evade accountability.
In order to operate in its primary
function of protecting individual
freedoms and staving of authori-
tarianism, freedom of expression
must have wide parameters within
which to operate.
But it must be weighed up against other
fundamental human rights. Tis balanc-
ing act requires the freedom of expression
to be restrained by governments in cases
where it incites violence or threatens the
very fabric of the democracy that permit-
ted it in the frst place.
We live in an age in which freedom of ex-
pression is proliferated globally through
international treaties, declarations and
conventions such as article 19 of the
Universal Declaration of Human Rights
(UDHR) and the International Covenant
on Civil and Political Rights (ICCPR), and
particularly in Europe through article 10
of the European Convention of Human
Rights (ECHR). Te problem with the
UDHR and the ICCPR is that although
they are considered to form a part of cus-
tomary international law that can aford
tools for applying diplomatic and moral
pressure to governments that violate its
articles, they have no further signifcant
practical means of ensuring compliance
by signatories. Tis is perhaps best attested
to by Amnesty Internationals claim that
many of the signatory states have allowed
human rights abuses (including viola-
tions of freedom of expression) to con-
tinue within their borders a gaping sixty
years afer the signing of the UDHR.
1
Te
state of North Korea is a signatory to both
1 Amnesty International, Sixty years of human
rights failure governments must apologize and
act now< http://www.amnesty.org/en/news-and-
updates/sixty-years-human-rights-failure-govern-
ments-must-apologize-and-act-now-200805> pub-
lished 27 May 2008
of these agreements
2
, but citizens are re-
quired to follow a socialist way of life and
government dissidents are frequently sent
to reformatory and re-education through
labour camps.
3
Although, such fagrant
violations have resulted in considerable
sanctions against North Korea, the UN
2 North Korea Now, International Law < http://
www.northkoreanow.org/international-law/> ac-
cessed 21 December 2013
3 U.S. Department of State, 2011 Country Report
on Human Rights Practices: Democratic Peoples
Republic of Korea 24 May 2012, < http://www.state.
gov/documents/organization/186491.pdf> accessed
21 December
Human Rights Council has no real further
enforcement mechanisms at its avail.
However, despite the inherent weaknesses
of such agreements their worth in setting
international standards for human rights
provided an important starting-point
from which huge strides have been made
in the last few decades.
4

4 Elizabeth Willmott, Te Universal Declarations
bias towards Western democracies (Liberty and
Humanity, January 2013) <http://www.libertyand-
humanity.com/themes/international-human-rights-
law/the-universal-declarations-bias-towards-west-
ern-democracies/> accessed 21 December 2013
Limiting
Freedom of
Expression
Benjamin Reidman
June 2014
Ebor Lex June 2014
28 29
Te ECHR has made more signifcant pro-
gressive legal reform guaranteeing freedom
of expression in Europe by providing a
higher court to which aggrieved individu-
als can appeal if they feel that a state has
failed to protect their rights. However, this
system is also fawed. It includes a number
of member states, for example, Russia,
Moldova and Turkey, that have maintained
poor human rights records
5
and lack the
fundamental legal protections necessary to
defend human rights.
6
Russia, for instance,
has a generally good record of paying its
fnes but has mostly failed to address the
ECtHRs demands for reform of underly-
ing defciencies of their legal system.
7
Although these limited international
agreements have aforded some additional
protection to the citizens of signatory states
over time and have created more potential
accountability of human rights violators,
the internal societal progressive ethos and
legislation appear more important. Cur-
rently international bodies like the UN can
do little but attempt to create more formal
legally binding covenants that set param-
eters for freedom of expression which are
either more realistic by recognizing that
some member states will constantly be
breeching the agreements or accept that
some states must be excluded from the
covenant (which arguably would defeat its
purpose all together). It would be ideal if
all states were to surrender a segment of
their jurisdictions to an independent in-
ternational court under the mandate of
an international body like the UN in cases
where a codifed breach of freedom of ex-
pression violations has occurred. However,
this is hard to envision in todays politi-
cal climate in which many nations are far
5 Polly Curtis, Whats wrong with the European
court of human rights? Te Guardian (London,
25 January 2012) <http://www.theguardian.com/
politics/reality-check-with-polly-curtis/2012/jan/25/
european-court-of-human-rights> accessed 22 De-
cember 2013
6 W.E. Pomeranz, Uneasy Partners: Russia and the
European Court of Human Rights [2012] HRB 17
7 Ibid
more content to simply ignore criticism or
pay fnes without making any meaning-
ful changes to their legal systems in cases
where abuses of freedom of expression
have occurred.
Wide parameters protecting freedom of
expression through political protest are a
hallmark of a healthy democracy. As one
source suggests, society is full of unjust
hierarchies and the freedom to dissent
is crucial in keeping injustices in check.
8

Magee recognises the importance of le-
gitimate political associations when he
suggests that the Patriot Act and wiretap-
ping in the United States go too far when
they equate protest acts with terrorism.
9

In practice the benefts of political protest
have been obvious. Te Ukrainian Orange
Revolution 2004 had such widespread par-
ticipation that a revote in the election was
called for, which ultimately resulted in a
reversal of the results.
10
States like North
Korea that do not tolerate such freedom
of expression do so out of fear of losing
control of the country if they loosen their
grips on society.
Even in states with decent human rights
records, restrictions on political protests
should be limited in order to maintain
fairness in society and keep corruption in
check. Some restrictions on protests are
necessary in order to maintain the safety
of the general public as well as protecting
individuals from being unduly burdened
by the protests. In English and American
jurisdictions not all speech is permissible
at all times in all places.
11
For instance, in
8 University of Virginia School of Law, Experts
Discuss Parameters of Free Speech a t Law Review
Symposium <http://www.law.virginia.edu/html/
news/2010_fall/free_speech_panel.htm> accessed 20
December 2013
9 James Magee,Freedomof Expression(1st edition,
Greenwood Publishing Group, Westport 2002) 302
10 Adrian Karatnycky, Ukraines Orange
Revolution Te New York Times (New York,
12 April 2005)< http://www.nytimes.com/cfr/
international/20050301faessay_v84n2_karatnycky.ht
ml?pagewanted=print&position=&_r=2&> accessed
22 December 2013
11 AdamWagner, Tank God for Dead Soldiers
the UK it is an ofense to have a demon-
stration within a kilometre of Parliament
Square without authorization.
12
Tis seems
reasonable given the inordinate disruption
protests could cause in such a sensitive
area. Mead also suggests that in the last
few decades protestors are increasingly
pursuing direct action protests by disrupt-
ing the business of companies in order to
make political points.
13
Although protes-
tors should be able to make political points
about governments and even businesses to
their detriment, in my opinion they should
not have the right to disrupt legitimate
business practices by physically preventing
businesses from conducting their trade,
and the state should have a positive duty to
prevent this from happening. As with any
large gathering of people the police needs
to be present in order to contain potentially
volatile situations. Police around the world
have efectively employed the so-called
kettling procedure to prevent violence.
14

Although protests need to be judged on a
case by case basis I am generally in favour
of such police measures if the authorities
on the scene deem them necessary.
In much of Europe, freedom of expression
is protected under Art. 10 of the ECHR.
However, such protection can be limited
if the protests involve hate speech against
racial, ethnic, and religious groups.
15

Adam Wagner points out that unlike the
UK, in the US hate speech is protected
under the frst amendment of the US
vs. British soldiers go to hell (UK Human Rights
Blog, 3 March 2011)< http://ukhumanrightsblog.
com/2011/03/03/%E2%80%9Cthank-god-for-dead-
soldiers%E2%80%9D-vs-british-soldiers-go-to-
hell/> accessed 23 December 2013
12 S Turenne, Te compatibility of criminal liabil-
ity with freedomof expression [2007] Crim. L.R. 866
13 D Mead, A chill through the back door? Te
privatised regulation of peaceful protest [2013] PL
100
14 British Broadcasting Corporation, European
court says kettling tactics in 2001 awful<http://
www.bbc.co.uk/news/uk17378700> accessed 23 De-
cember 2013
15 John Alder, Constitutional and administrative
law (8th edition, Macmillan Publishers Limited, Bas-
ingstoke 2011)499
constitution, and generally there are only
very limited forms of freedom of expres-
sion not protected under the frst amend-
ment.
16
In the US freedom of expression is
better protected and has wider parameters
than in the UK due to its enshrinement in
a written constitution
17
. Although it can
have upsetting consequences such as al-
lowing radicals to protest at funerals, in
my opinion, they are outweighed by the
beneft of a greater opportunity for unsup-
pressed expression of beliefs from all strata
of society. Te US Supreme Court afrmed
this by holding that the frst amendment
extended to protect hurtful speech on
public issues to ensure that public debate
is not stifed.
18
Finally, one of the most important reasons
for creating wide parameters for freedom
of expression is to allow journalists to criti-
cize governments, businesses, and individ-
uals in order keep the public informed and
encourage liberty and fairness in society.
Press freedom in the UK can be restricted
when the need for it is outweighed by other
concepts such as privacy, national security,
prevention of hate speech etc.
19
However,
when the expression concerns political
matters wide parameters are imperative
to prevent a chilling efect on publication.
As the ECtHR outlined, a free press allows
the public to have informed opinions on
political matters, politicians, and is a core
concept of a democratic society.
20
Jona-
than Coad argues for restraint in English
libel lawsuits as libel injunctions are
almost unobtainable, rendering journal-
16 AdamWagner, Tank God for Dead Soldiers
vs. British soldiers go to hell (UK Human Rights
Blog, 3 March 2011)< http://ukhumanrightsblog.
com/2011/03/03/%E2%80%9Cthank-god-for-dead-
soldiers%E2%80%9D-vs-british-soldiers-go-to-
hell/> accessed 23 December 2013
17 B Allen, Freedomof expression and the protec-
tion of public morals in the United Kingdomand the
United States [2003] CLJ 16
18 A Bailin, Criminalising free speech? [2011]
CrimL R 705
19 John Alder, Constitutional and administrative
law (8th edition, Macmillan Publishers Limited, Bas-
ingstoke 2011) 486
20 Lingens v Austria (1986) 8 E.H.R.R. 407
isms claim of a chilling efect simply an
attempt to preserve profts through avoid-
ing liability.
21
Perhaps such restraint in
matters of libel with regard to journalism
is necessary. However, it is clear that more
serious breaches such as the recent crimi-
nal punishment of a Turkish journalist for
criticizing the Prime Minister of Turkey in
a way that he found insulting could signif-
cantly deter other journalists from similar
criticism of the government.
22
Te dangers
of not respecting press freedom can be
highlighted by revisiting the example of
North Korea in which domestic media is
heavily censored and according to reports
at least 40 journalists have been sent of
to re-education camps since the 1990s for
petty errors like misspelling the name of a
senior ofcial.
23

Protecting freedom of expression should
generally be prioritized over the right to
freedom of religion, except in cases where
members of a religion have some legiti-
mate fear of violence due to the expres-
sions made. Te ECtHR has suggested that
freedom of expression protects expres-
sions that shock, ofend or disturb, and
has conceded that members of religious
majority/minority must tolerate denial by
others of their beliefs and even propaga-
tion of doctrines hostile to their faith.
24

However, in my opinion it fails this ideal
by declaring through case law that expres-
sions contrary to religions are not unlim-
ited in that provocative portrayals or criti-
cisms of sacred fgures may be prohibited.
As Niraj Nathwani suggests this leaves
little room for shock, ofence or distur-
21 J Coad, Reynolds and public interest - what
about truth and human rights? [2007] Ent L R
75
22 Organization for Security and Co-operation in
Europe, Criminal punishment for critical journal-
ism has chilling efect on free speech in Turkey, says
OSCE media freedom representative<http://www.
osce.org/fom/103749> accessed 23 December 2013
23 Pippa Norris, Public Sentinel: News Media &
Governance Reform(1st edition, Te World Bank,
Washington, D.C. 2010) 366
24 A Sherlock, Freedom of expression: how far
should it go? [1995] E.L. Rev. 329
bance with regard to the religious sphere.
25

Freedom of expression would be rather
pointless if it only protected the dominant
views of societies.
26
Te right to shock or
ofend through freedom of expression is
important to prevent a chilling efect, and
since what is ofensive is subjective it is
better to protect controversial non-violent
expression to avoid stifing it entirely.
27
In
my opinion, this subjectivity is also likely
to lead to inconsistencies in restraints on
expression.
In America it is generally impermissi-
ble to restrict the content of expression
as it is subject to only a few exceptions.
28

Nathwani makes a compelling argu-
ment for the more open American model
through reference to a landmark New York
case in which it was held that the govern-
ment had no legitimate right to protect re-
ligious doctrines from attacks or views dis-
tasteful to them, and went on to say that it
was difcult to understand why somebody
should be able to project their ideas of sa-
credness on others and demand respect
for them.
29
While individuals should be
free to express their belief in any religious
doctrine without fear of violence, this
right cannot be used to curtail legitimate
expression (which does not encourage vi-
olence) that criticizes or even distastefully
ridicules any element of that religion.
Limiting freedom of expression that
incites violence or is likely to create racial
25 N. Nathwani, Religious cartoons
and human rights - a critical legal analysis of the case
law of the European Court of Human Rights on the
protection of religious feelings and its implications in
the Danish afair concerning cartoons of the Prophet
Muhammad [2008] E.H.R.L.R. 488
26 Ibid
27 Ibid
28 United States Embassy, Freedomof Expression
in the United States< http://iipdigital.usembassy.
gov/st/english/pamphlet/2013/04/20130416145829.
html#axzz2ppVOkgbE> accessed 27 December 2013
29 N. Nathwani, Religious cartoons
and human rights - a critical legal analysis of the case
law of the European Court of Human Rights on the
protection of religious feelings and its implications in
the Danish afair concerning cartoons of the Prophet
Muhammad [2008] E.H.R.L.R. 488
Many nations are far more content to simply
ignore criticism or pay fnes without making
any meaningful changes to their legal systems
in cases where abuses of freedom of expression
have occurred
When the expression concerns political
matters wide parameters are imperative to
prevent a chilling efect on publication
30 31
hatred that might result in violence is nec-
essary, perhaps especially in multicultural
societies. Te libertarian view that even
ofensive racist expression should not be
curtailed if it is non-violent in nature and
does not exclude members of society from
enjoying their other basic human rights,
could be sustainable in the most mature
democracies but not universally. Garry
Slapper advocates legal constraints pre-
venting people from inciting racial hatred.
He draws a distinction between incit-
ing racial hatred and ridiculing religions
in that people cannot choose their race
whereas they can choose their ideas.
30

However, he also claims ofensive incendi-
ary remarks will wilt under public scrutiny
rather than having to be curtailed through
law, and society will most successfully
develop and progress by allowing ideas
to be subject to public debate.
31
I think
this alternative would hold true in most
mature western democracies where ideas
of equality and fairness are so ingrained in
30 G. Slapper, Te legality of assaulting ideas
[2007] J. Crim. L. 279
31 Ibid
society. However, I am not sure the same
would follow where institutions are not
as steadfast. In fact, Slapper himself even
references how the law ofered no protec-
tion from racism which was commonplace
in Britain prior to the social revolutions of
the 20
th
century.
32
In my opinion, Slappers argument that
social progress can best be made through
subjecting controversial ideas to debate
has held true in recent years in the United
States. I think this can be illustrated
through the recent controversy surround-
ing Food Network host Paula Deen, whose
racist remarks caused such a social back-
lash throughout society that ultimately
they resulted in her formerly popular
show being cancelled.
33
Tis illustrates that
US mainstream society now rejects overt
racism thus creating a sense of self-cen-
32 Ibid
33 Julia Moskin, Food Network Drops Paula Deen
Te New York Times (New York, 21 June 2013) <
http://www.nytimes.com/2013/06/22/dining/paula-
deen-is-a-no-show-on-today.html?_r=1&> accessed
28 December 2013
sorship by society through public debate
rather than law. However, when society
cannot censor those who are uninfu-
enced by its condemnation the law will not
protect their victims as can be witnessed by
the Supreme Court dismissing convictions
against racism, cross-burning, and even
neo-Nazi activity as unconstitutional
34
.

Political freedom is a prerequisite to
freedom of expression. Terefore, even an
extremist political agenda should not be
censored if it does not threaten democracy
itself or propose violence. Free political
expression is not possible without a plu-
rality of political parties representing all
the diferent opinions within a country.
Teir existence is what allows for political
debate, which is a core concept for demo-
cratic society.
35
However, as Tanja Venisik
contends extremist political parties of a
nationalist nature ofen tend to under-
34 I. Hare, Infammatory speech: cross-burning
and the First Amendment [2003] P.L. 408
35 J Vidmar, Multiparty democracy: international
and European human rights law perspectives [2010]
L.J.I.L. 209
mine other fundamental values of democ-
racy through intimidation and threats
(especially against minorities), which
should result in them being banned.
36
On
the other hand, she also recognizes that
banning can in some cases be fruitless
and even result in further radicalization or
increased violence.
37
Furthermore, states
ofen use the limitations and prohibitions
of political parties to suppress minorities
from legitimately promoting their own
interests or culture.
38
Tere are no easy
answers but I believe democratic govern-
ments should overtly attempt to restrain
or even ban political parties that threaten
the rights of minorities because they do
not respect democracy and the freedom of
expression that it creates.
Setting the parameters for freedom of ex-
36 Tanja Venisnik, European Court of Human
Rights upholds the ban on HungarianGuard
(Minority Rights GroupInternational, 23 July 2013)<
http://minorityrights.wordpress.com/2013/07/23/
european-court-of-human-rights-upholds-the-ban-
on-hungarian-guard/> accessed 2 January 2014
37 Ibid
38 Ibid
pression is an inherently complicated task,
fraught with the complex issues of weigh-
ing the worth of the expression against
other equally important human rights.
Tis is further complicated by globaliza-
tion since the international community is
increasingly involved in setting the stand-
ards for human rights. It is difcult for the
world community to set the standards for
freedom of expression and enforce them
because of nations that have not embraced
the democratic system. However, for those
nations capable of having this debate, I
believe it is obvious that in order for the
democratic institutions of countries to be
maintained, lenient parameters must be in
place to protect freedom of expression. In
order to maintain an informed society that
respects a spectrum of diferent political
positions it is of paramount importance to
be mindful of this leniency with respect to
the rights of journalists and individuals to
associate in groups and engage in political
protest. Some of the most common restric-
tions on freedom of expression involve
the topics of religion, race, and political
opinion. All three topics are explosive
issues which when let loose could infringe
on the human rights of others and could
even threaten democracy itself. I would
contend that restrictions should centre on
being able to criticize, condemn, or even
ridicule someones system of beliefs but
not a physical trait such as race, since in-
dividuals cannot chose a race while they
can chose a system of beliefs. However, in
my opinion the law should draw the line at
expression which encourages violence or
widespread hatred which is likely to lead
to it. More holistically, freedom of expres-
sion necessitates democracy which in turn
allows for freedom of expression. In order
to protect the existence of a democratic
nation it is essential to maintain the widest
possible parameters for freedom of expres-
sion. Terefore, freedom of expression
should only be curtailed when it threatens
the ideals and continuity of the democratic
system.
Political freedom
is a prerequisite to
freedom of expression
Setting the parameters
for freedom of
expression is
an inherently
complicated task
Ebor Lex June 2014
June 2014
33
Societies have all been said to be authori-
tarian in construct, so it is no surprise that
society before c.1750 as well as afer were
distinctly patriarchal.
1
Authority, in the
past and to some extent now, extending
back to the most primal stages of human-
ity relied on the physical strength of men
as a gauge to dominance and authority.
2
It was from this initial diference between
men and women that foreshadowed the
gender inequality that would last even
till this day. As civilisation developed
men created structures and institutions
that were extensions of the individual pa-
triarchy that occurred in each home; in
each marriage.
3
Examples of this include
the feudal hierarchy that oppressed not
only women, but the poor and destitute,
enshrining patriarchal strength
in a virtually irrefutable system.
However, the decline of feudalism
in c.1600, replaced by mercantile
capitalism initiated a quasi -renais-
sance, where individual autonomy
and equality became ideas more powerful
than the feudalism of old. Philosophers
such as Locke and Mill contended that the
freedom and equality of man are natural
states of all humanity.
4
Tis contravention
of Aristotles and other great Greek phi-
losophers theory of biological inferiority
caused women to feel argumentative for
the frst time against inequality.
5
In c.1700,
Mary Astell, developed Lockes assertion:
1 J.A.G Grifth, Te Political Constitution [1979]
MLR 1, 21
2 Aristotle , The Politics (1st, Penguin, UK 1981)
3 S. Fredman, Women and the Law (2nd, OUP,
Oxford 1997)
4 Stanford Encyclopedia of Philosophy, Lockes
Political Philosophy (http://plato.stanford.edu/
2014) <http://plato.stanford.edu/entries/locke-polit-
ical/> accessed 12/04/2014
5 Aristotle, History of Animals (2nd, Harvard
University Press, US 1965)
If all men are born free, why are women
born slaves? If absolute sovereignty be
not necessary in a state, how comes it to
be so in family. Tis liberal feminism had
great signifcance in empowering women
to believe themselves equal to their hus-
bands. Tough not changing much, if any-
thing in statute, liberal feminism began to
erode the clutches of men; despite being
far from real change, all journeys have a
beginning - a trajectory.
As Tosh correctly states, situating oneself
in an unfolding trajectory gives us some
purchase on the future and allows a
measure of forward planning.
6
Tus it is
extremely benefcial for the study of law
to consider its evolutionary nature, as
with all social sciences. In particular, the
study of the law and history surrounding
women and gender inequality, helps us
to understand the practices of the past,
how developments have been made and
whether the same patterns will occur in
the future.
7
An example of the aforemen-
tioned trajectory method for the study of
history being benefcial in terms of law is
the former common law of coverture. His-
torically, marriage signifed the oblitera-
tion of womens legal personality, giving
her husband absolute control of both her
property and her person.
8

9
Tis law is now
completely defunct in terms of property
6 J. Tosh, Te Pursuit of History (2nd, Pearson,
Great Britain 2010)
7 Ibid n 6
8 B. A. Brown, A. E. Freedman, H. N. Katz & A.
M. Price, Womens Rights and the Law (1st, Praeger
Special Studies, US 1977)
9 Sir W. Blackstone, Commentaries on the Laws of
England (1765-1769)
law with efect, in fact, in employment
cases, judges will not force defendants to
honour their contracts; they will distance
the law from becoming slave drivers.
10

By this I mean that possession of body
is a facet of law that has been completely
discarded. Tis demonstrates that the law
will develop and discard aspects that are
deemed bad or antiquated by the current
social conscious. Consequently, placing
oneself on the trajectory facilitates the
likelihood of embracing legal and social
change.
Firstly, this paper will examine the in-
equality and reform of women in marriage
and sexual matters. As has been men-
tioned beforehand, the legal doctrine of
coverture represented and women becom-
ing one by Blackstone; however,
11
in reality
the woman surrendered all rights. Tis was
efective enslavement and would
spell much change as the epoch of
industrial revolution approached.
12

Te philosophical reasoning
behind coverture was based upon
a perspective that women lacked
the rationality to be individuals, and thus
needed mens guidance to maintain civil
order.
13
Rousseau, for instance, advo-
cated this belief while also maintaining
that woman in their nature were sexually
deviant, which demanded for husbands to
exert absolute control over them for the
purpose of preventing civil unrest.
14
In the
19
th
century, this was view was articulated
in the Contagious Diseases Act 1864, in
10 E. Mckendrick, Contract Law (10th, Palgrave
Macmillan, UK 2013)
11 Blackstone (n 9)
12 Te National Archives, Emmeline Pankhurst
Letter (http://www.nationalarchives.gov.uk/ 2014)
<http://www.nationalarchives.gov.uk/documents/
education/sufragettes.pdf> accessed 14/04/2014
13 Aristotle (n 2)
14 Jean-Jacques Rousseau as cited in S.
Fredman, Women and the Law (2nd, OUP, Oxford
1997)
Smashing Sexism:
Xavier Peluso
The Trajectory of Gender
Inequality and Reform
Ebor Lex
32
woman in their nature were sexually
deviant, which demanded for husbands
to exert absolute control over them
Ebor Lex June 2014
34 35
which the spread of venereal diseases was
used as a faade to implement intrusive
and punitive measures against women
15

16
.
Under this Act, a woman could not refuse
medical examination for any venereal
disease. Any women could be branded a
prostitute and ordered to undergo fort-
nightly examinations, if found to possess
a venereal disease; said woman could be
imprisioned in hospital for up to nine
months.
17
. Te female body, not bacteria
and infection, was blamed for this smite
to men. In efect, by placing all women
who had what we now call sexually trans-
mitted diseases and infections in hospital
for nine months, the health of men was
being protected at the cost of womens
rights.
18
Tis was a shameful refection on
the sexual deviancy of men in Victorian
Britain.
Te slow transfer of rights to women in
terms of marriage and property rights
could only begin when coverture had
been eroded in English law. Tis erosion
began with the Married Womens Prop-
erty Act 1870 which, under pressure
from Industrialised British Society, gave
married women the right to be legal
owners of the money they earned and
to be held apart from their husband.
19

Also, the right to inherit property was
granted.
20
Despite this Act being of huge
signifcance in furthering the cause of
equality for women, especially in the case
of the original unequal relationship that
is marriage, the Act did allow the loop-
hole for the husband to retain control of
the property owned by a woman prior to
marriage. Tis act was the frst real leg-
islated change in womens legal position.
Te technique of legislating for what oc-
curred in the marriage situation was a
long term solution to inequality. Essen-
tially, the marital relationship was the
original patriarchal stronghold; the de-
struction of this, although a slow process,
would yield a more complete equality
overall. Te amended 1874 Act and the
Married Womens Property Act built
upon the foundations laid down by the
1857 Act.
2122
Property rights, as described
by Locke, are imperative - something all
men and women are entitled too, and
are such that defne ones existence as au-
tonomous. Tis Act was thus signifcant
15 Te Contagious Diseases Act 1864 s (1)
16 Aristotle (n 5)
19 Te Married Womens Property Act 1870 s. 1
20 Te Married Womens Property Act 1870 s. 7
21 Te Married Womens Property Act 1874 ,
(Amended Act )
22 Te Married Womens Property Act 1882
in the slow liberating process from the
shackles of men.
However, this continuance of legislated
developments for equality within mar-
riages frst commenced with the Matri-
monial Causes Act 1857.
23
Te Matri-
monial Causes Act removed the litigation
from the ecclesiastical to civil courts ju-
risdiction. Tus the model of marriage
changed from a sacrament that could not
be undone, unless through special meas-
ures of annulment, to divorce becom-
ing a mere practicality of English Law.
Te Court of Divorce and Matrimonial
Causes had jurisdiction to decide civil
actions for divorce. Te efects of this
Act did not truly show until the late 20
th
-
early 21
st
century. Tough women could
divorce their husbands, the world was
still highly patriarchal, in terms of eco-
nomics. It was still not viable for a women
to divorce when it would be more difcult
to provide for themselves. Furthermore,
women could now divorce if their hus-
bands committed adultery, though an ag-
gravating factor of rape or physical abuse
would have been needed. What is im-
portant to mention here, is that although
stipulated by policy, the social culture
would take a long time to assimilate
where divorce would be acceptable in the
minds of a Christian Britain.
24
Te sub-
sequent Matrimonial Causes Acts 1857
to 1878 provided the foundations for di-
vorces that could occur in times where
women were more fnancially enabled
to do so. At the time the aforementioned
legislation was mainly benefcial as an
indicator to educated women that equal-
ity or at least a more equal society were
on the horizon. Terefore, the relevance
of these acts, transferring divorce into
the secular domain and so increasing
the accessibility of divorce, is a relevant
trigger in the trajectory of the decreasing
gender inequalities. Placing oneself in the
trajectory of gender inequality in Britain
with analysis of these acts can help us to
understand why our society is like it is
today, as well as what it will be like in the
future.
25
Te subsequent matrimonial causes act
in 1923 placed men and women as equal
in marriage for the frst time. Te specifc
enabling of the act was that either spouse
could petition the court for a divorce
on the basis of their spouses adultery.
26

23 Te Matrimonial Causes Act 1857
24 Ronald Inglehart & Pippa Norris , Rising
Tide: Gender Equality & Cultural Change around
the World [2002] Harv. L. Rev
25 Blackstone (n 9)
26 Matrimonial Causes Act 1923
Tere was no longer need for proof of
aggravating factors. Te equalising of
womens and mens rights in marriage
had come a long way from the law of
coverture where a woman was an item
of personal property under marriage.
Yet there was still only one ground for
divorce, adultery. Tis was remedied
in the Matrimonial Causes Act 1937,
where it became possible to divorce on
grounds of cruelty, desertion and incur-
able insanity.
27
Te gender equality that
was now being legislated for in the Mat-
rimonial Causes Acts was a refection of
society, the social movement of WWI;
furthermore, the strain of war priori-
tised divorce as a social instrument to
which citizens regarded as a necessity
in some cases. Divorce had initially pre-
empted social change and an increase in
gender equality, yet now divorce legisla-
tion had provided equality for men and
women. Te only agenda of later divorce
related acts were to add more grounds
for divorce, and similar technicalities, as
well as to increase accessibility.
Tis paper will now explore and analyse
the political gender inequality that oc-
curred c.1600 to the present day. Tis
chapter will focus upon the role of the
womens sufrage movement in obtain-
ing the female vote, and the women
who led this campaign and other related
movements. Furthermore, this chapter
will discuss the womens employment
rights, as these were absorbed into po-
litical rights by the sufragettes, and
the development made were closely
aligned to political developments. As
the Married Womens Property Act and
the subsequent Matrimonial Causes Act
caused a more equal society as a bottom
up solution from the microcosm of the
family, the sufrage movement caused
for a top down solution for the macro-
cosm of society. Te patriarchal family
structure had been abolished in law - the
next stage of the equalising process was
for the patriarchal society to be correct-
ed.
28
Tis was the fundamental aim of
the Womens Sufrage movement.
29
Te London Society for Womens Suf-
frage formed in 1867, as a direct conse-
quence of the Matrimonial Causes Act
1857. Tis was the frst time an organ-
ised female group was created with the
intention of lobbying for political and
social reform. In spite of this, the frst
actions of womens groups around the
nation were to afect employment ine-
27 Ibid
28 Fredman (n 3)
29 Ibid
quality. Clementina Black, the secretary
of the Womens Trade Union League,
secured the frst equal pay resolution
at the Trades Union Congress in 1888.
Tis event was imperative to equal-
ity, as many women at the time such as
Pankhurst and Wollstonecraf realised
the importance of equal economics
30
in
its contribution to wider social equal-
ity. Furthermore, this inspired women
to challenge the employment they were
subject to. Also in 1888, 1400 women at
a Bryant and May match factory went on
strike, challenging the poor pay wages
they received and the dangerous condi-
tions. Tis turned out to be somewhat
symbolic as opposed to generating actual
change, as inequality of pay remains
contentious. Tese frst cases of civil
unrest established a basis for women to
challenge the patriarchy and essentially
began the womens rights movement.
It was only in 1902 that the frst call
for the womens vote occurred, where
a delegation of women textile workers
presented a petition, signed by 37,000
to Parliament. It was only in the next
year where the renowned campaigner,
and mother of the sufrage movement,
Pankhurst founded the Womens Social
and Political Union. Tis group, which
would eventually secure the female vote
in 1928, initially used non-violent mili-
tancy to gain attention.
31
Pankhurst real-
ised the efcacy of militancy in gaining
attention, We are at last recognized as
a political party; we are now in the swim
of politics, and are a political force.
32

Tis statement revealed the irresist-
ible nature of her campaigning, as well
as the excitement felt by women for the
frst time to be recognised as an organi-
sation, political in nature. Te momen-
tum Pankhurst created gave women the
opportunity to enter into political in-
volvement, albeit only in borough and
country councils. Te Qualifcation of
Women (County and Borough Councils)
Act 1907 allowed the election women to
the aforementioned councils, clarifying
a right that had become confused when
education boards had merged with local
councils.
33
In the words of LP Hartley,
the past is a foreign country, the dawn
30 Ibid
31 J Purvis, Emmeline Pankhurst: A Biography
(Womens & Gender History)(1st, Routledge, UK
2003)
32 National Ofce of Statistics, Public Gather-
ing Statistics (http://www.statistics.gov.uk/ 2014)
<http://www.statistics.gov.uk/hub/index.html>
accessed 12/04/2014
33 Qualifcation of Women ( County and
Borough Councils) Act 1907
Property rights, as
described by Locke, are
imperative - something
all men and women
are entitled too, and
are such that defne
ones existence as
autonomous
Tese frst cases of
civil unrest established
a basis for women to
challenge the patriarchy
and essentially began
the womens rights
movement
Ebor Lex
36 37
of women was nigh.
34
Tere are numerous
trajectories that could be predicted from
the events up to 1907; however, the period
leading up to and afer the First World
War maintained the universal atmosphere
of freedom and equality that was rising in
1907. It was in the early 20
th
century that
oppressed nations and groups of people,
whether that be the citizens of India or
British Women, began to rise from the
their historic repression. Te trajectory of
worldwide inequality has decreased ever
since this point but has not yet reached the
end of its path.
Te period from 1908 to 1928 manifest-
ed womens empowerment. In terms of
campaigning, 250,000 people took part
in a protest in Hyde Park in support of
womens sufrage.
35
Such a large amount of
people exemplifes that social values were
changing in support of gender equality. To
the extent that in 1912, the government
allowed the release of female prisoners
who were on hunger strike until they were
well enough to be taken back into prison.
36

Tis conveys the growing sympathy patri-
archal structures were beginning to have
for the gender equality. What could not
be predicted is the efect of the end of the
WWI on the Sufragettes cause. Specifcal-
ly, the Parliamentary Quali-
fcation of Women Act 1918
that enabled women over 21
to stand for Parliament, and
the Representation of the People Act 1918
allowed women over 30 to vote.
37,38
Tese
legislated stipulations did not give complete
universal access to the vote; however, this
was not hugely problematic as there were
regular concessions to the womens pleads
until the vote was eventually granted in
1928. Afer 1918 and the aforementioned
Act, the Sufrage movement continuously
lobbied for the complete and unmitigated
right to vote. Female MPs in 2014 feel as
if the Prime Ministers Question is an en-
vironment where sexism comes into play
due to the rowdy, testosterone nature
39
of
the forum. Many women feel disheartened
afer attending the Prime Ministers Ques-
tions; a vital instrument of democratic ac-
countability. Minister of Parliament Sarah
Champion, said that she actively avoids
the Questions due to their rowdy, belliger-
34 LP Hartley, as cited in J. Tosh, Te Pursuit of
History(2nd, Pearson, Great Britain 2010)
35 National Ofce of Statistics ( n 36)
36 Chris Mason & Tomas Edgington, Female
MPs shunning PMQs, says John Bercow (www.bbc.
co.uk 2014) <http://www.bbc.co.uk/news/uk-poli-
tics-27062577> accessed 18/04/2014
37 Te Parliamentary Qualifcation of Women Act
1918
38 Representation of the People Act 1918
39 Mason (n 37)
ent nature. Equality it seems is cultural as
much as legislated.
Te result of the sufrage movements in-
cessant pressure was frst seen in 1920,
when the bars to professions such as law
and accountancy were lifed due to the Sex
Discrimination Removal Act 1920.
40
Tis
employment equality eroded centuries of
philosophical material that lauded women
as intellectually inferior to men. Despite
this, a culture of gender equality seems to
remain beyond contemporary society. Te
legal profession exemplifes this, where in
early 2013, Baroness Hale condemned the
British Legal profession for not hiring tal-
ented women in senior positions, blaming
it on a culture of unconscious sexism.
41

As well as this, a Council of Europe report
suggested that Britain was the worst for
employing female judges.
42
Tis conveys
that legislative changes can only beneft
causes such as equality to a limited extent.
Ofen the extent tends to be somewhere
where cultural and value changes have to
be made in order for true equality to be
gained in the minds of those individuals
in society. However, ones rights before the
law tend to be the most persuasive of enti-
ties.
Property has been a central issue in gender
equality ever since the doctrine of cover-
ture placed women as the personal prop-
erty of their husbands. Hence, in 1922, Te
Law of Property act stipulated that both
man and woman (husband and wife) could
inherit property equally.
43
Such equality in
property law reform, the most established
laws, shows the willingness of the executive
and legislature to prioritise equal rights for
both genders, and reveals the transforma-
tion of social values from a time of owner-
ship of women to their equal rights.
Finally, in 1928 women in Britain were
granted equal sufrage. Te Equal Fran-
chise Act of 1928 increased voting eligibil-
ity by approximately 15 million women.
40 Te Sex Discrimination Removal Act 1920
41 Louisa Peacock, Law frms have unconscious
bias that stops women from getting promoted, says
senior City lawyer (www.telegraph.co.uk 2013) <Law
frms have unconscious bias that stops women from
getting promoted, says senior City lawyer> accessed
10/04/2014
42 Te Council of Europe, Analysis of European
Legal Systems (www.coe.int 2014) <http://www.
coe.int/t/dghl/cooperation/cepej/evaluation/2012/
Rapport_en.pdf> accessed 8/04/2014
43 Te Law of Property Act 1922
In my opinion, Tis Act
44
is the defning
event in all gender equality history. Tere
is no greater freedom in a democratic
society than the right to vote to be po-
litically active in selecting the political
leader of the nation. Yes, afer 1928 and
to the present day, many events occurred
in order to refne gender equality, but the
Equal Franchise act was the end of a tra-
jectory in itself; it was the proverbial brick
smashing the window. What goes on today
and will continue into the future is the easy
route for the brick, from the window to the
foor.
Ergo, the analysis of the laws of gender ine-
quality from a historical perspective, whilst
placing oneself in the trajectory that is
still unfolding, is extremely benefcial for
the study of law and the understanding of
cause and efect. Te use of primary and
secondary sources allows for a complete
historical analysis of gender inequality,
allowing for the contextual exploration
of difering political and social views. In
terms of the gender equality from c.1750,
it is the belief of this author that equality
is as difcult to defne, as it is problematic
to fnd. By defnition, equality requires
two difering things; reform within legis-
lature and social consciousness. Te 1928
Act placed women in their
rightful place as independ-
ent beings, equal to men in
every way it was not just
an egalitarian example of reform. Rather,
the 1928 Act was confrmation that as
civilised humanity we have an ideal, far
greater than any petty equality. Tat is for
freedom, for liberty, for an autonomy that
does not cause one to have to be enslaved
by another simply for the purposes of pa-
triarchy. In spite of this, legislation cannot
change the minds of society, the inher-
ent, unspoken notions. Social values have
been changing ever since that that day in
1928. Notwithstanding these examples of
inequality and unfairness in employment,
with each passing year the voyage to equal-
ity is drawing ever closer to an end. It may
be a century from now, but I would submit
that there is no greater reform than the
Equal Franchise Act 1928; a truly just Act,
the very defnition of justice.
44 Te Equal Franchise Act 1928
Despite this, a culture of gender equality seems
to remain beyond contemporary society.
T
he way in which a post
confict society address-
es gross human rights
abuses as part of its tran-
sition to democracy is a complex
political question. However, Transi-
tional Justice (TJ) mechanisms seek
to provide a framework in which
societies can successfully recognise
past abuses and democratise.
Tis essay will concentrate on two of these
mechanisms, criminal trials and Truth
Commissions (TC), critically comparing
the ability of each to address the gender
dimension of post confict justice. With
the term post confict justice encompass-
ing a range of diferent issues, this essay
will focus on these mechanisms ability
to ensure post confict justice for women
in relation to sexual violence. Firstly, the
case in favour of trials as the most suitable
mechanism is set out. Tose in favour at-
tach huge signifcance to the need for re-
tributive justice through imprisonment,
such punishment regarded as an essential
part of recognising the past and success-
fully transitioning in the future. However,
secondly, drawing on the experiences of
the International Criminal Tribunal for
Yugoslavia (ICTY), the downfall of trials
is highlighted with the process ofen trau-
matic and lacking the capacity to ensure
women can talk about their experiences.
Accordingly, thirdly, the potential of TC
as an alternative is highlighted. Drawing
on the hugely infuential South African
Truth and Reconciliation Commission
(SA TRC), it is shown how TC have the
potential to ensure women express their
own personal narrative. However, to do
so the mandate establishing a TC must
acknowledge the true extent of the viola-
Scott Halliday
June 2014
A crictical comparison of the
capacity of criminal trials and truth
commissions to deal with the gender
dimension of post conflict justice
Ebor Lex June 2014
38 39
tions faced by women. From this perspec-
tive ultimately a conclusion is reached that
neither mechanism genuinely satisfes the
gender dimension of post confict justice.
Both trails and TC address sexual violence
within the confnes of a set slice of time.
But, sexual violence is ofen a longstanding
injustice, with TJ mechanisms lacking the
capacity to genuinely transform the expe-
riences of women.
Te case for trials
In post confict societies transitioning to-
wards democracy there is a need to hold
past perpetrators of gross human rights
abuses to account. Tere is debate as to
what is the most suitable way to do this,
but according to Mendez justice dictates
the appropriate response [to be] criminal
prosecutions.
1
Tose who advance such
claims attach signifcance to classical ju-
ridical methods of justice, with emphasis
on fair procedure, recognition of violations
sufered and suitable punishment upon
conviction.
2
From this perspective one of
the most important features of a criminal
trial is that prosecution ensures individual
accountability, this criminal accountability
resulting in the punishment of perpetra-
tors through criminal sanctions ().
3
To
be clear it is this punishment which en-
sures retributive justice for those who have
sufered during confict, this of fundamen-
tal importance when acknowledging the
gravity of the atrocities committed. Ad-
ditionally, successful prosecutions ensure
perpetrators are not at liberty to commit
further atrocity. Tese are incredibly valu-
able aspects of embarking on criminal tri-
als in a post confict society. But, from a
specifcally gendered perspective it is not
enough to evaluate the mechanism solely
through its end product of punishment
through imprisonment. To do so would
be to ignore the importance of adversarial
processes which involve women directly in
criminal trials.
Te structure of adversarial justice de-
mands prosecution and defence lawyers
zealously defend their clients interests to
establish whether the accused is crimi-
nally liable.
4
From the perspective of the
accused the adversarial nature of trials
ensures passionate defence, with counsel
1 J Mendez, Taking a Stand: Te Evolution of
Human Rights (1st, Palgrave Macmillan, Oxford
2011) 138
2 K Campbell, Te Trauma of Justice: Sexual Vio-
lence, Crimes Against Humanity and Te Interna-
tional Criminal Tribunal for the Former Yugoslavia
[2004] SLS 329, 337
3 K.M Pratt, L.E Fletcher, Time for Justice: Te
Case for International Prosecutions of Rape and
Gender-Based Violence in the Former Yugoslavia
[1994] BWLJ 77
4 T Dare, Mere-Zeal, Hyper-Zeal and the Ethical
Obligations of Lawyers [2004] LE 24, 30
able to rigorously test the validity of evi-
dence through cross-examination. With
successful prosecution ofen resulting in
long-term imprisonment the zealous na-
ture of adversarialism is said to be the best
method to establish the relevant facts to
determine legal accountability.
5
Terefore,
International Criminal Tribunals (ICT)
involving sexual violence serve the inter-
ests of women survivors, provided that the
correct procedural rules are abided by and
adequate protection is ofered.
6

For example, trials are to the beneft of
women if at all times during cross-exam-
ination judges are empowered to curtail
questions which border on harassment. In
this regard the zealous nature of advocacy
in trials is acknowledged to require limita-
tions to respect witnesses involved in the
process. However, even with adequate
safeguards a tension remains between trial
5 R Wasserstrom, Lawyers as Professionals: Some
Moral Issues [1975] HR 1, 10
B McGonigle Leyh, Procedural Justice- Victim Par-
ticipation in International Criminal Proceedings (1st,
Intersentia Ltd, Cambridge 2011) 74, 75
6 Pratt, K.M, Fletcher, L.E, Time for Justice: Te
Case for International Prosecutions of Rape and Gen-
der-Based Violence in the Former Yugoslavia [1994]
BWLJ 77, 102; J Mertus, Shouting from the Bottom
of the Well Te Impact of International Trials for
Wartime Rape on Womens Agency [2004] IFJP 110,
112
procedures and the interests of survivor
witnesses. Te models of justice empha-
sised by advocates of trials assumes that
law institutes justice.
7
But, critical assess-
ment of the trial process raises doubt as to
the extent to which traditional legal pro-
ceedings can ensure post confict justice in
sexual violence cases.
8
It cannot be denied
that the adversarial process is what makes
criminal trials a potential valuable mecha-
nism to deal with abuses in a post confict
environment. Te ferce contestation and
potential for criminal sanctions is of great
value in ensuring both sides aggressively
argue their case. But, this process is also
its greatest downfall as it presumes justice
to be achieved through an adversarial trial
focussed on retribution, largely ignoring
the implications for witnesses who are in-
volved in the trial.
Te downfall of trials
An integral feature of the trial process is
hearing testimony from women who claim
to have been sexually violated during a
period of confict. In the ICTY many sur-
7 K Campbell, Te Trauma of Justice: Sexual Vio-
lence, Crimes Against Humanity and Te Interna-
tional Criminal Tribunal for the Former Yugoslavia
[2004] SLS 329, 340
8 C Bell, C ORourke, Does Feminism Need a
Teory of Transitional Justice? An Introductory
Essay [2007] IJTJ 23, 26
vivors who testifed believed that giving
testimony would be a signal of political
agency, helping them to heal and move
forward.
9
However, in reality during the
ICTY many women witnesses giving tes-
timony were emotionally fragile and over-
whelmed by the nature of the tribunal,
feeling cheated and humiliated in the af-
termath.
10
Even when women were ques-
tioned by the prosecution, their own legal
representatives, they were expected to re-
live the trauma and answer very specifc
condensed questions. Te consequence of
this was that it lef little space for women
to truly express their own narrative. In the
Kunarac et al. (IT-96-23 & 23/1) case pros-
ecution counsel truncated questions to ft a
legal-narrative, this most conducive to en-
suring successful prosecution.
11
To be clear
with conviction the mark of success there
was no importance attached to any other
details than those of relevance to estab-
lishing legal accountability. In this sense
the entire purpose of the examination was
9 Mertus, J, Shouting fromthe Bottomof the Well
Te Impact of International Trials for Wartime
Rape on Womens Agency [2004] IFJP 110, 111
10 P Wald, Te International Criminal Tribunal
for the Former Yugoslavia Comes of Age: Some Ob-
servations on Day-To-Day Dilemmas of an Interna-
tional Court [2001] WUJLP 87, 109
11 Mertus, J, Shouting from the Bottom of the
Well Te Impact of International Trials for Wartime
Rape on Womens Agency [2004] IFJP 110
to create a legal narrative in keeping with
what was necessary to satisfy the burden of
proof. Te result of this was ofen a speedy
question-and-answer format with women
expected to re-live the trauma of the ex-
perience in a few words before a new topic
was introduced.
Q. Can you describe what he did?
A. He pushed me onto one of the beds.
He asked me to put his penis into my
mouth
Q. And did he do it?
A. He did it himself
Q. How long did that last?
A. I dont know
(Kunarac et al. case, 29 March 2000,
pp.1243)
Tis type of questioning forces witnesses
to re-live the trauma sufered without any
freedom to go into further detail, but at
least it is asked solely with the intention of
ensuring the suspected perpetrator is pun-
ished. Te same cannot be said in cross-
examination where advocates rigorously
deconstruct witness accounts. To be clear
defence lawyers have no interest is wom-
ens narratives, their sole purpose being to
discredit the validity of witness accounts
and stress inconsistencies.
12
For example,
in the Kunarac et al. case during cross-
examination defence counsel asked a se-
ries of questions about an incident where
the witness was said to have been raped.
During this series of questions the witness
not only had to re-live the trauma asso-
ciated with the event, but had to counter
the suggestion from defence counsel that
as a consequence of sexually stimulating
the defendant she was complicit in the sex
which followed.
Q. Does that mean you had to put his
penis into your mouth?
A. Yes.
Q. And when he had an erection, what
did he do then? Did he rape you vagi-
nally?
A. No. I dont remember.
Q. Before this happened, did you see him
talk with Klanfa?
A. I dont remember.
Q. You said he forced you to excite him.
What do you mean by force?
A. Well, that I had to -- I dont know
how to explain this.
Q. Did he threaten you or did he point
a gun at you?
A. No. No. He just said that he couldnt
get an erection afer everything. And
then I had to use my hand and mouth
to stimulate him so that he could get an
erection to rape me.
(Kunarac et al. case, 30 March 2000, pp.
1451-2)
Tis type of discrediting of witnesses is
common in all adversarial trials. Tere-
fore, far from providing women with a
platform, adversarial courtroom culture
disempowers and silences women.
13
With
zealous cross-examination in place to re-
duce the potential of wrongful convic-
tion, one can at least appreciate why the
traumatic experiences of witnesses has
12 M Walsh, Gendering International Justice
Progress and Pitfalls at International Criminal Tribu-
nals in D Pankhurst (eds),Gendered Peace- Womens
Struggles for Post-War Justice and Reconciliation (1st,
Routledge, 2008). 46; Mertus, J, Shouting from the
Bottom of the Well Te Impact of International
Trials for Wartime Rape on Womens Agency [2004]
IFJP 110, 119
13 A E Taslitz,Rape and the Culture of the Court-
room (1st, New York University Press, New York
1999)
Ebor Lex June 2014
40 41
not rendered the trial process completely
obsolete.
14
But, the re-traumatising and hu-
miliating efect of courtroom culture upon
women survivors unquestionably devalues
trials as a mechanism to achieve justice
from a gendered perspective. To be clear
adversarial processes largely disregard the
experiences of survivors giving evidence
in trials. Consequently, TC are advanced
as an alternative to adversarial trials, with
the fundamental diference between these
mechanisms the nature and extent of their
attention to victims.
15
With trials failing
to appreciate the importance of a personal
narrative, the more therapeutic model of
justice captured through truth telling ofers
a compelling alternative to ensure post con-
fict justice for women.
Te potential of truth commissions
Te fundamental diference between trials
and TC is the primary focus on survivors,
with TC testimonies having the potential
to give women an opportunity to express
their personal experiences. From this per-
spective TC have an entirely diferent focus
to trials, seeking not as their primary goal
the punishment of perpetrators, instead
concentrating on reconciliation and healing
by moving away from the somewhat mas-
culine notions of crime and punishment.
16

Tis was evident in the hugely infuential
SA TRC which, afer strong civil society
pressure, established a series of special
womens hearings aimed at creating space
for women to speak about their experi-
ences during apartheid.
17
Indeed, looking
at the transcripts there is a consistent style,
with the committee chairperson repeatedly
stressing how giving testimony was an op-
portunity for participating women to share
their story.
CHAIRPERSON: Mrs Jokazi, thank you
very much for coming to the Commission
today to share your story
(Deborah Vuyelwa Jokazi, SA TRC Spe-
cial Womens Hearings, 28 July 1997)
Another noticeable feature in many testi-
monies was the way in which women were
largely allowed to tell their story free from
interventions. Granted, there were inter-
ventions from the chairperson in most
14 C Pegorier, Denial, impunity and Transitional
Justice the fate of female rape victims in Bosnia and
Herzegovina in L Yarwood (eds), Women and Tran-
sitional Justice Te Experience of Women as Partici-
pants (1st, Routledge, London 2013). 134
15 P Hayner,Unspeakable truths: facing the challenge
of truth commissions(1st, Routledge, London 2002) 28
16 C Bell, C ORourke, Does Feminism Need a
Teory of Transitional Justice? An Introductory Essay
[2007] IJTJ 23, 46
17 B Goldblatt, S Meinties, Dealing with the Afer-
math: Sexual Violence and Te Truth and Reconcilia-
tion Commission [Agenda] A 7, 8
testimonies, but the process was notably
diferent to criminal trials with its series
of quick and short questions and answers.
Te importance of this process should not
be underestimated as from a therapeutic
justice perspective it is ultimately the posi-
tive experience of giving testimony which is
imperative to survivor empowerment and
moving forward.
18
Te sense that women
were in control of the process was also re-
afrmed when ofen following a series of
questions from the chairperson women
were given a further opportunity to tell
their story before the end of the testimony.
CHAIRPERSON: Is there anything that
you would like to tell us before you, we
actually let go you today?
MS JOKAZI: Yes, there is something
CHAIRPERSON: Go ahead...
(Deborah Vuyelwa Jokazi, SA TRC Spe-
cial Womens Hearings, 28 July 1997)
As favourable as TC processes seem when
compared to the adversarial trial process, it
is not as simple as to suggest that TC ensure
post confict justice for women survivors
because women can tell their story. Te re-
ality of what women can and are expected
to discuss is actually limited by the mandate
creating a TC in any post confict society.
For women to really be able to give their
personal narrative of abuses the mandate
establishing a TC must acknowledge the
true extent of violations sufered by wom-
en.
19
Without this womens experiences are
to some extent ignored and the therapeutic
element so integral to the process damaged.
Tis proved to be the case in the SA TRC as
the range of harms considered relevant was
limited in such a way as to exclude much of
the experiences of women.
20
In the SA TRC
the amnesty committee was authorised to
grant amnesty to those who came forward
regarding crimes during apartheid, as long
as individuals fully disclosed all the facts
and they could show the act was motivated
by a political objective. From a gendered
perspective the consequence of this was
that women were not actually free to tell
their own story from their own perspective.
In several testimonies, as a consequence of
the amnesty provision, the committee had
to ask a series of difcult and ofen repeti-
tive questions to establish perpetrator mo-
18 Laub, DAn Event Without a Witness: Truth, Tes-
timony and Survival in S Felman, D Laub (eds), Tes-
timony- Crises of Witnesses in Literature and Psycho-
analysis and History (1st, Routedge, New York 1992)
19 Walsh, M, Gendering International Justice
Progress and Pitfalls at International Criminal Tribu-
nals in D Pankhurst (eds), Gendered Peace- Womens
Struggles for Post-War Justice and Reconciliation (1st,
Routledge, 2008). 138, 139
20 F.N Aolain, C Turner, Gender, Truth & Transi-
tion [2007] UWLJ 229,
tivation.
CHAIRPERSON: When you started of
you told about an experience where a
man was trying to enter the door. Can
you just give a clear context of that, be-
cause the way it came it was not clear
enough as to what was the reason behind
that.
MS MXATHULE: Tis person attempted
to rape me, because he had lust for me.
CHAIRPERSON: But he was not doing

that in a political context, he was just do-
ing it as a man who wanted to do that to
you as a person? I am trying to get that
clarity.
MS MXATHULE: Yes, because when I
explained this to his father, he explained
to my father that your child is, they are
used to each other.
CHAIRPERSON: Again, I would like us
to be clear on thisthere was no political
context. He was just doing it, because he
is used to doing that.
...
MS SEROKE: Maria, we want you to as-
sist us to have the political context of the
frst story you told us about. You heard
that Sheila Meintjies during her submis-
sion here, she said that at some of the
days, there is a very thin line between
domestic violence and political violence.
When this Willard police, this policeman,
Willard, called you to his house and at-
tempted to rape you at gunpoint, did he
do this because he knew you were a Com-
rade or he just did it because he wanted
to have sex with you?
MS MXATHULE: He did this because he
knew I was a Comrade and my husband
was also a Comrade and he was a crip-
pled or disabled. He could not defend us
and he was involved in the struggle with
one of our friends.
(Nozibonelo Maria Mxathule, SA TRC
Special Womens Hearings, 29 July 1997)
From this perspective TC failed to ensure
women could talk on their own terms.
Clearly when compared to the adversarial
trial process women were given greater
freedom. But, the challenges of identifying
the motivations of perpetrators of sexual
violence challenged the idealistic notion
that the SA TRC gave women a complete
space to tell their own stories. To be clear in
cases where there was difculty establishing
motivation; women were repeatedly asked
to explain the situation and re-emphasis
the motivation of the perpetrator. From a
gendered perspective the TC narrow man-
date which focussed almost exclusively on
political violence resulted in a missed op-
portunity to examine the wider experiences
of women, particularly social and cultural
values around sexual violence.
21
Te conse-
quences of this for women can still be seen,
as the way in which past sexual violence
within a society is addressed has direct and
indirect links to attitudes in a post confict
environment.
22
Terefore, TC ofer a po-
tentially more therapeutic form of justice
for women, as when compared to adver-
sarial processes TC give more opportunity
for women to tell their personal narrative.
However, the fact that testimonies are lim-
ited by the mandate creating a TC is a huge
downfall, this reducing the utility of TC to
ensure justice from a gendered perspective.
As TJ mechanisms both criminal trials and
TC seek to ensure post confict justice for
gross human rights abuses. However, each
mechanism attributes greater signifcance
to diferent forms of justice, with trials fo-
cused on retributive justice and TC more
focussed on therapeutic forms of justice.
Te re-traumatising efect of giving evi-
dence in an aggressive adversarial system is
hugely limiting when assessing the potential
of trials to ensure justice for women. In this
sense it is the lack of importance attached
to the experiences of women in adversarial
trials which makes TC an appealing alter-
native. However, as much as truth telling
processes are acknowledged as ofering
women a greater opportunity to tell their
story, ultimately neither mechanism en-
sures adequate post confict justice from a
gendered perspective. Both of these mecha-
nisms address sexual violence within the
confnes of a set period of confict, failing to
appreciate the wider experiences of women
and the permanent confict between male
perpetrators of sexual violence and women.
Granted, a critical comparison of trials and
TC shows the therapeutic and empowering
aspects of TC testimony to provide a more
gender conscious form of post confict jus-
tice. However, TJ mechanisms fail women
because they lack the capacity to transform
the experiences of women. It is this trans-
formative element which is necessary in a
post confict environment if a transition is
to truly address the needs and interests of
women.
21 A Kusafuka, Truth commissions and gender: A
South African case study. [2009] AJCR 45, 51
22 B Goldblatt, S Meinties, Dealing with the Af-
termath: Sexual Violence and Te Truth and Recon-
ciliation Commission [Agenda] A 7, 13; F.N Aolain,
C Turner, Gender, Truth & Transition [2007] UWLJ
229, 249
Te fundamental
diference between trials
and TC is the primary
focus on survivors, with
TC testimonies having
the potential to give
women an opportunity
to express their personal
experiences
Te re-traumatising
efect of giving
evidence in an
aggressive adversarial
system is hugely
limiting when
assessing the potential
of trials to ensure
justice for women
42 43
T
he concept of equity in the
study of law has caused a
great deal of confusion as
to what purpose it serves
and why it is required alongside
common law. Te basic dictionary
defnition of the word equity as the
quality of being fair and impartial1
1 Oxford Dictionaries, Equity (Oxford Dction-
aries 21 November 2012) http://oxforddictionaries.
com/defnition/english/equity?q=equity
portrays a concept based entirely
on individual morals and ethics al-
lowing a great deal of discretion.
Whilst this is true to some extent, the
history of equity has given rise to the
development of various principles that
govern its application. Tis essay seeks
to explain how the principles of equity
amount to a sphere of law, which may
exert its infuence across the entire feld of
legal problems2 by looking at its creation
2 Margaret Halliwell Equity & Good Conscience in
a contemporary context (Old Bailey Press Limited 1st
edn. 1997), 1
through the Courts of Chancery and ana-
lysing its infuence on the law of property.
It is respectfully submitted that equity best
serves its purpose as an entity running
alongside the common law in a relation-
ship between code and supplement, that
between text and gloss3. A consideration
of Lady Justices weighing scales as a repre-
sentation of the law as a whole seems to be
an appropriate analogy. Previously tipped
to one side by the common laws failings
to deal with cases adequately, due to its
3 F. W. Maitland Equity a course of lectures (Te
Syndics of the Cambridge University Press 2nd edn.
1949), 153
rigorous application of rules, the scales
were balanced by the introduction of
moral values of right and wrong through
the system equity, thus symbolising a step
towards justice in felds where common
law fell short of doing so.
When talking about legal principles
lawyers refer to those in law and those in
equity. In this context, law means common
law, as equity and common law may be
diferent, but both are law4. Established
4 Catherine Elliott & Frances Quinn English Legal
System (Pearson Education Limited 12th edn. 2011),
117
in the twelfh century through itinerant
justices, common laws rigorous applica-
tion of rules had a signifcantly negative
impact on the administration of justice
as evidenced by the number of claims
that were rejected by the courts, as they
did not ft the requirements of a specifc
writ based on which litigants could bring
claims to common law courts at the time.
In search for an alternative means of ac-
quiring a remedy litigants petitioned the
King and already by the end of the thir-
teenth century the number of such peti-
tions presented in every year [was] very
large5. Such petitions were passed on to
the Kings Chancellor to deal with who
was petitioned directly as the number of
complaints increased. Trough his own
individual sense of right and wrong by the
merits of the particular case before him6
the Chancellor, a member of the clergy,
would give or refuse relief in cases where
the common law courts were restricted
by precedents, which governed the difer-
ent writs applied at the time. By 1474, the
Chancellor had begun to make decisions
5 Maitland (n 3) 3
6 Jill E Martin Hanbury & Martin Modern Equity
(Sweet & Maxwell 19
th
edn. 2012), 7
Are practitioners
balancing the scales
correctly?
A brief analysis of the rationale
behind the parallel application
of equity and common law
Max Dyck
June 2014 Ebor Lex
Ebor Lex
44 45
on his own authority as the Court of Chan-
cery was created, in order to administer
cases of equity7.
Te introduction of the court of equity
added a further layer to the law as the
Chancellors position allowed a move away
from an analysis of strict rules of law, as was
the case in common law courts at the time,
towards inquiring specifcally into the de-
fendants conscience8. Tis gives rise to
the idea that equity provides the law with
fexibility that qualifes, moderates, and
reforms the rigour, hardness, and edge of
the law9 to the extent that it complements
decisions made in common law courts to
achieve a greater measure of justice. In
fact, as argued by Aristotle, it is a recti-
fcation of legal justice10 in that it pro-
vides alternative remedies to the common
law remedies and allows causes of action
against holders of legal rights through, for
instance, the creation of trusts.
At this point one might argue that the
notion of equity seems rather arbitrary
and contradictory to the idea of law, i.e.
the provision of rules, as its development
was based on the moral standards of a set
of ecclesiastical individu-
als and recourse to moral-
ity, and indeed to notions
of conscience, will always
be recourse to someones
or some groups challenge-
able moral vision11. Over
the years, however, equitable principles
evolved through the Court of Chancery,
which provide a framework of reference
within which judicial decisions can be and
are made12. Te most notable among
the 12 maxims are equity will not sufer
a wrong to be without a remedy, he who
seeks equity must do equity, meaning
that a claimant must act fairly towards a
defendant, and equity acts in personam,
meaning that equity has jurisdiction over
the defendant as a person, as opposed to
against the entire world as would be the
case with legal ownership rights13. Tus,
whilst being based on what might be seen
as arbitrary moral values, equity is careful
not to confict with common law.
With the introduction of the Judicature
Acts 1873-1875 the common law courts
and the courts of equity were amalgamat-
7 Elliott & Quinn (n 4) 117
8 Alastair Hudson Equity and Trusts (Routledge-
Cavendish 6th edn. 2010), 15
9 ibid, 13
10 ibid, 10
11 Margaret Halliwell (n 2), 2
12 ibid, 11
13 Jill E Martin (n 6), 35
ed into one system of administration with
such milestones as the principle that equity
should prevail in case of a confict between
equity and common law, as stated in the
Earl of Oxfords Case14, being incorporat-
ed into legislation15. Tis sparked a debate
of this fusion of administration on the sub-
stantive law of equity and common law.
Scholars of the fusion school of thought
argue that, while not dictating the fusion
of the substantive law, [the Judicature Acts
1873-1875] rendered this, for the frst
time, a realistic possibility16. It is submit-
ted that committing this fusion fallacy,
which involves the conclusion that the
new system was not devised to administer
law and equity concurrently but to fuse
them into a new body of principles17,
would mean to reject the purpose of
equity, namely the idea of a set of princi-
ples based on moral values that relate to
common law in a complementary manner.
If one were to consider the fusion fallacy
in the light of the analogy of Lady Justices
weighing scales given above, one would
conclude that a fusion of the two systems
would lead to the loss of the notion of
achieving justice by attaining equilibrium.
In fact, an entirely new system of rigorous
rules would be put in place, where one sys-
tems wrongs could not stand to be correct-
ed by the other systems rights, but would
stand unchecked and free to commit such
wrongs that the introduction of equity had
sought to correct.
One striking example of the success-
ful interrelationship between equity and
common law is no doubt to be found
in the most distinctive achievement of
English lawyers18: the trust or use, as it
was referred to in its early stages. Consider
the following scenario: If a testator gives
1000 to A. B., desiring and hoping that A.
B. will, at his death, give the same sum or
any part of it to C. D., a trust is created in
favour of C. D. Tis was an example used
in the Court of Chancery case Knight v
Knight19, which set out the three certain-
ties in trust law20. Since at common law
14 Earl of Oxfords Case (1616) 1 Rep Ch 1
15 Judicature Acts 1873-1875, s. 25(11)
16 Andrew Burrows, We Do Tis At Common
Law But Tat In Equity [2002] 22 O.J.L.S., 1, 4
17 ibid, 3
18 F. W. Maitland (n 3), 23
19 Knight v Knight (1840) 3 Beavan 148, 49 E.R. 58
20 ibid, [160]
a legal owner retains full ownership rights
against the world, common law would not
grant C. D. any claim at all against A. B.,
as ownership is vested in A. B. Trough
the imposition of an equitable obligation
[through the system of trusts] on a person
who is the legal owner of property [A.B.]
which requires that person to act in good
conscience when dealing with that prop-
erty in favour of any person [C.D.]21, as
was suggested in the scenario above, equity
enables C. D. to bring a claim against A. B.
In this particular example an equitable ob-
ligation is placed on A. D., who received
ownership rights as trustee from the testa-
tor, to hold any responsibility in the prop-
erty in order for C. D. to beneft from it as
benefciary. At this point the law puts the
legal owners rights at common law along-
side the benefciarys in equity, indicating
that it would be difcult to replicate this
function without using the law and equity
labels22. In fact, if these labels were to
be abolished and a fusion of common law
and equity achieved, the result would be
an invitation to civil war23, as both the
trustee and the benefciary would claim
ownership rights. Accepting the additional
layer of rights to property created in equity
the law, achieves a fair and
just balance of interests that
would otherwise have been
absent.
Whilst a more thorough
analysis of equitys impact
on diferent areas of the law is required
in order to make a case in favour of or
against the fusion of substantive equitable
and common law principles, it is submit-
ted that equity is seen and should continue
to be seen as a complementary addition
to common law that works alongside it to
achieve balance and fairness within the
law. Its historic development as a necessary
incorporation of moral and ethical values
of justice into the legal system, through
initially the Chancellor and later various
maxims, suggests that equity is to be seen
as a sphere of law that is to run alongside
common law. Te dependence of the sub-
stantive law of trusts on the labels of rights
at common law and rights in equity show
that to commit the fusion fallacy would be
to get rid of the very idea of equity, namely
to complement common law principles.
Finally, a fusion of equity and common law
would destroy any notions of checks and
balances between equity and common law,
which were put forward in the analogy of
Lady Justices weighing scales.
21 Hudson (n 8), 43
22 Burrows (n 16), 5
23 F. W. Maitland (n 3), 153
Equity is seen and should continue to be seen
as a complementary addition to common law
that works alongside it to achieve balance and
fairness within the law
Tis is a fctional case involving key is-
sues of jurisprudence. A signifcant part
of the judgments draws the focus on the
discussion of a fctional piece of legisla-
tion (art 12 of the Convention) based on
the Radbruch formula. Te formula it-
self should be examined in the context of
the natural and positive law debate. As is
hopefully clear from the judgments below,
Lord Dowley is a supporter of the natural
law theory whilst Justice Kaytee supports
positive law. Te main discussion of the
Radbruch formula in this work revolves
around the concept of justice and diferent
schools of thought which have approached
it. Lord Dowley gives an interpretation
akin to the interpretation of Rawls, with
some Kantian infuence, and Justice Kay-
tee looks at justice as a merely procedural
concept.
Additionally, the work looks into certain
principles of judging, linked to the natu-
ral-positive law debate. Tus Lord Dowley
is a clear functionalist, whilst Justice Kay-
tee is a pure formalist. Having looked into
Posners theory of judging,
1
Lord Dowley
uses down-up judging techniques (de-
riving the principles from case law before
application), whilst Lord Kaytee uses the
up-down approach (using jurispruden-
tial principles to interpret existing case law
and applying those principles to the facts
of the case). Te fnal judgment of Justice
Speyer is my personal opinion and inter-
pretation of the two previous judgments.
1 Richard Posner, Legal Reasoning From the Top
Down and From the Bottom Up: Te Question of
Unenumerated Constitutional Rights (1992) 59 Uni-
versity of Chicago Law Review 433
1. Per curiam
1.1 Procedure
On 10 December 2584, the Prosecution
Committee of Unifed Nations brought a
case against Justice Perusopoulos, Presi-
dent of the Constitutional Court of the
Gaian Republic for a potential breach of
art 12 of the Unifed Nations Convention
2512.
1.2 Facts of the case
Te facts of the present case are as follows.
Te Gaian Republic has been strongly af-
fected by an economic crisis of 2570s and
up to the present day hasnt recovered. Af-
ter the 2597 elections, the newly elected
majority party has legitimately and suc-
cessfully passed a law declaring that a ref-
erendum will be held in November 2584
containing a single question: Should the
Mark Shapiro
Unlawful
Laws:
a Hypothetical
Judgment
June 2014
Ebor Lex June 2014
46 47
poorest 10% of the population be sen-
tenced to death? Te law has been based
on an academic report stating that the
poorest 10% are to be blamed for the in-
ability of the country to recover. Tis Court
is satisfed, on the basis of comprehensive
witness evidence, that, sadly, the fndings
of the report are true. Te referendum has
been held on 1 November 2584. 94% of
the electorate answered to the question,
out of which 82% answered Yes and 11%
answered No. Tis Court is also satisfed
that the referendum has been legitimate.
Accordingly, on 5 November 2584 the
relevant act (the Solution Act) has been
passed and, according to the relevant pro-
cedure sent to Justice Perusopoulos for ap-
proval. On 8 November, the law has been
approved and on the same day the Pros-
ecution Committee of the Unifed Nations
received an interim injunction to stop the
application of the law and applied to Tis
Court for a judgment.
1.3 Convention, Process and Admissibil-
ity
As specifed by art 12 (a) of the Conven-
tion, if a High Contracting Party enacts
a law, fundamentally alien to the notions
of basic justice, any judicial authority is
banned from applying this law.
Art 12 (b) states the judge of the judicial
authority bears personal responsibility in
adhering to Art 12 (a).
Art 56 specifes that any person whose
judicial decision a) breached art 12 and b)
lead or will lead to a death of a person shall
be punished by death.
According to art 154 of the Convention:
Any case in relation to art 9 15 of the
Convention shall be heard by the Judicial
Committee of the Unifed Nations, consist-
ing of three highest judges of UN members,
fully independent, afer an application for
such a hearing has been done by the Pros-
ecution Committee. Whilst two of those
judges shall look into the factual circum-
stances of the case and return a verdict, the
third (presiding) judge should establish in
his decision the principles binding in prec-
edent on future courts. Tis decision should
only be based on the principles used by the
other two judges.
As Tis Court fnds that Justice Peruso-
poulos approval of the Solution Act is a
judicial decision for the purposes of Art
56, it has not found a ground for declaring
it inadmissible and therefore it is declared
admissible.
2. Per Lord Dowley of the Integrated
Kingdoms
My Lords, this is one of the most unfor-
tunate cases I had to judge in my entire
career, which will inevitably lead to death
of either the defendant or hundred thou-
sands of innocent people. Before I proceed
to the substantive judgment, I wish to note
that we have reached an agreement with
my learned Lords present with regards to
the scope of the case. We have established
beyond any doubt that the facts written
above are fully correct and the only ques-
tion lying before Tis Court is whether the
Solution Act can be considered fundamen-
tally unjust by the meaning of art 12. In lay
terms, we agreed, that the question before
Tis Court can be put as follows: Is kill-
ing the poorest 10% of the population can
ever be just and lawful, and if yes is it in the
present case?
Despite this case being one of frst im-
pression, our ancient predecessors lef us
equipped with a valid body of case law. It
is worth starting with the Nuremberg Tri-
als, which efectively established crimes
against humanity. In the Justice Cases
2
it
was clearly established that international
law overrides domestic law, irrespective of
how it was passed. Moreover, art 12 in its
own nature is crafed to show the higher
priority of international law. In my opin-
ion, international law, as understood by
the Nuremberg Military Tribunals, can be
equated to the notions of natural law and
its superiority to any law made by man. It
is clear that the principles of natural law,
to which any civilized adult citizen will ad-
here, will ban any domestic law breaching
any basic individual right or liberty, espe-
cially of the most vulnerable citizens.
3

Tough in my personal view natu-
ral law shall always prevail, my judicial
predecessors,
4
as well as my learned Lord
2 United States of America v. Alsttter et al. 1948(3
T.W.C. 1) (Nuremberg Military Tribunal)
3 John Rawls A Teory of Justice (Harvard Uni-
versity Press 1999) 53-55
4 Alexander Bolton Sotomayor: Te task of
the judge is not to make the law in the Hill.com
Kaytee, soundly argue that it is not ones
judicial role to ignore the superiority of the
present positive law. It is appealing to say
that our moral, basic, human beliefs, based
on pure logic and reason, should under-
pin every judicial decision. However, our
morality is ofen vague and cannot create
a working judicial system. It is stated in
the ancient case of Road Accident Fund:
5

Prominent thinkers in other democratic
societies regard it as just that the advance-
ment of a society should not come at the
cost of the most vulnerable. But justifcation
analysis under s 36 is not a theoretical or
philosophical exercise seeking ideal justice.
Tough section 36 and thus the scope of
Road Accident Fund bear no relevance to
the present case, it nevertheless shows the
important distinction between judicial
and philosophical endeavor the distinc-
tion I have to respect and to which I have
to adhere.
However, even in my judicial capacity, I
cannot allow for the unrestricted sover-
eignty of positive law. Art 12 has no mean-
(13/07/2009) referring to the confrmation hearings
of the US Supreme Court candidate Sonya Sotomayor
5 and Another v Mdeyide [2011] 3 LRC 356 para
128 (South Africa Constitutional Court)
ing if we accept any domestic positive
law as being the ultimate legal authority.
Ancient cases provide the solution by the
so-called Radbruch formula,
6
stating that
domestic legislation, which intolerably
contradicts objective justice, should not
have efect. In the current context, I can see
no other interpretation of objective justice,
apart from natural law. Taking into account
the principle of K-H W v Germany,
7
stat-
ing: that positive law should be disapplied
only in absolutely exceptional cases and that
a merely unjust piece of legislation, which is
unacceptable on any enlightened view, may
nevertheless, because it also remains inher-
ently conducive to order, still acquire legal
validity and thus create legal certainty . . .,
I will accept the Radbruchs formula in ap-
plication to the present case.
Te Solution Act is exceptionally unjust.
It has been said in application to the ECHR
that pre-eminence to art 2 [is] one of the
most fundamental provisions of the conven-
tion. It safeguards the right to life, without
6 Gustav Radbruch Gesetzliches Unrecht und
bergesetzliches Recht, 1 Sddeutsche Juristen-
zeitun 105 (1946), tr in (2006) 26 Oxford Journal of
Legal Studies 1
7 App. No. 37201/97 (ECtHR) para 20
My Lords, this is one of
the most unfortunate
cases I have had to judge
in my entire career,
which will inevitably
lead to death of either
the defendant or
hundred thousands of
innocent people
It is appealing to say
that our moral, basic,
human beliefs, based
on pure logic and
reason, should underpin
every judicial decision.
However, our morality
is ofen vague and
cannot create a working
judicial system
Ebor Lex June 2014
48 49
which enjoyment of any of the other
rights and freedoms in the convention is
rendered nugatory.
8
Taking away life of
thousands of innocent civilians is pure
and basic injustice, breaching the most
basic natural law principle stated above,
that it can never be justifed or tolerated;
it should always be an exception accord-
ing to Radbruchs formula.
My learned Lords will argue that eco-
nomic aims justify the ofen monstrous
means and that justice is a purely proce-
dural concept. However, I see that main
duty of any court is to act as a shield to
individual rights and liberties. Tis can
never be achieved if people are seen as
mere means to an end
9
and court busi-
ness is seen as the mere procedural re-
distribution of resources and responsi-
bilities. Terefore, for the reasons given
above, I fnd the Solution Act funda-
mentally alien to the notions of basic
justice. Accordingly, the defendant is
found guilty for breaching art 12 of the
Convention and according to art 56 of
the Convention is sentenced to death.
3. Per Justice Kaytee of the Republic of
Atlantis
Learned Colleagues, the present case,
though being difcult, is a case of the
highest importance. Before proceeding
to the substantial judgments, I wish to
thank Justice Dowley for the informa-
tive summary of the legal question be-
fore Tis Court, which I fully confrm
and support.
In his decision Justice Dowley has given
a great analysis of the relevant case law,
concluding that if higher or natural
law states that the positive law is unjust
against moral criteria of exceptional
strength and of general international
acceptance, the positive law should give
way. Despite the merits of this, I can-
not agree with his arguments or verdict.
In my opinion, the true domain of jus-
tice is the procedural fairness of all the
three branches of power and thus the
defendant is only guilty if the Solution
Act has been enacted procedurally un-
fairly. Law itself has no inherent moral
value.
10
Legal system is a framework of
simple rules and principles, given by a
valid legislature,
11
and the role of the
8 Pretty v United Kingdom (2002) 35 EHRR 1
para 37
9 Immanuel Kant Groundworks for the Meta-
physics of Morals (3
rd
ed, Hackett,1993) tr J. El-
lington
10 Joseph Raz Te Authority of Law: Essays on
Law and Morality (Clarendon Press 1979) 48
11 HLA Hart Te Concept of Law (2
nd
ed, Clar-
judge is to fairly apply those rules and
principles. Senior judges in many juris-
dictions have the additional task of ju-
dicial review of legislations either in
form of constitutional checks or, as in
the present case, by international law
reviews. However, the judiciary should
remember that its task is not to examine
the law in moral terms; but rather to as-
sert whether it is procedurally just and
lawful.
Justice Dowley has rightly claimed that
art 12 has no meaning if any domestic
positive law is correct merely from the
fact that it exists. I fully agree with this
statement, but not in terms of some
form of natural justice. In my view, Art
12 refers exclusively to procedural jus-
tice discussed above. Tere have been
unfortunate occasions in human history
when either the legislator was not the
lawful authority to enact those laws or
alternatively the laws did not go through
the proper procedure. Tose two prin-
ciples, empowered by the general con-
ductive consensus among ofcials,
12
are
the circumstances according to which a
law should be struck out as unjust in the
meaning of art 12, at least in the major-
ity of cases. I will illustrate both of the
procedural principles and the rule of
recognition
13
below.
Firstly, I will be referring to the Judges
Case, part of the Nuremberg Trials. In
the dismissal of the mere law applica-
tions defence the Military Tribunal
efectively used the international law
and natural justice arguments akin to
those of Justice Dowley above. Tough
I fully agree with the Tribunals deci-
sion, I believe that their reasoning was
wrong. In fact the laws which the judges
wished to use were not valid laws in the
frst place, as they violated both of the
procedural principles outlined above.
Adolf Hitlers route to his ultimate su-
preme power could hardly been called
legitimate a sufcient example is the
use Reichstag Fire Decree of 1933, en-
abling Hitler to get rid of his political
opponents in order to vote in the En-
abling Act of 1934 allowing him to rule
by decree. And, of course, rule by decree
can hardly be called a legitimate proce-
dural rule of enabling legislation in a
civilised society.
In order to exemplify the recognition
rule I will refer to a rather entertain-
ing ancient decision of the Supreme
Court of the Russian Federation.
14
Te
endon Press 1994)
12 ibid
13 ibid
14 Kiruhin v Russian Federation [2009] Supreme
Court of the Russian federation
court struck out a secondary legisla-
tion, which had been in force for almost
two decades. Te legislation required
all citizens owning any printing devices
(including the most basic printing) to
be registered in the police ofce, oth-
erwise the citizen will be charged with
a fne. Despite the legislation, afer the
mass-spread of printing devices a few
years afer the enactment, the police did
not act upon this law. No registrations
were made and no fnes were taken. Te
Supreme Court has decided that purely
on the absence of ofcial recognition of
the law, it has no legal power and was
struck out.
As to present case, it will be hardly argu-
able for me to state that a lawful referen-
dum can hardly ever be called procedur-
ally unjust and there is no evidence that
the Solution Act will not be recognised
by the relevant ofcials. However, I have
to make allowances for an occasion in
which it will be just for Tis Court to
strike out legislations. Tis circum-
stance is also based on Radbruchs for-
mula, but it gives a diferent defnition
of objective justice than the one used by
Justice Dowley. In my opinion, in cases
where the literal interpretation of the
positive law will lead to consequences
so grave that any reasonable member of
a civilised society will fnd outrageously
unjust, the positive law should pass a
test of internal procedural justice. Te
test is described well by Lon. L Fuller
in his works Te Morality of Law and
includes criteria such as generality and
non-retroactivity. By including such a
test, regardless of adding limited inter-
nal morality to the law which is inexpi-
able in most circumstances, the courts
are allowed to defend the undefended
innocent in exceptional circumstances,
a power which if exercised might pre-
vent grave historical consequences.
I will fnd that the case before Tis
Court is exceptional enough to use the
amended Radbruch formula to estab-
lish whether it is just in the meaning of
art 12. Te Solution Act leads to deaths
of thousands, the only fault of which is
not being able to earn a living. Tough
referendum is the ultimate legislator,
those innocent about to die do need a
shield, which can only be provided by
Tis Court. In a democratic state, the
majority is the ultimate sovereign; but
even such a sovereign cannot be entirely
unrestricted in its actions. I would ac-
cept the consequences of the Act if they
were able to pass the above test of inter-
nal procedural justice. However, the So-
lution Act makes demands impossible
to comply with. Every rational human
being would not be poor if he had the
choice not to be. It is precisely the im-
possibility of compliance which makes
the Solution Act unjust and thus I also
have to fnd that, by his decision, the
defendant has breached article 12 and
is therefore found guilty. According to
art 56 of the Convention the defendant
is sentenced to death.
4. Per Presiding Justice Speyer of the
Peoples Republic
Comrade Justices, as you are all aware,
my role in this judgment is a purely
concluding endeavour. In my personal
opinion, both of the above judgments
fail to look into the social and economic
circumstances of the case upon which
law should be based. However, I am re-
stricted to purely choosing the binding
legal principles of the above decisions
for future courts to obey.
Both judgments concur that the defen-
dant is guilty, because the circumstances
of this case are exceptional according to
the Radbruch formula. However, in my
view Justice Kaytees interpretation of
the formula is more compelling. Justice
Dowley is making a logical presump-
tion that a law taking the lives of in-
nocent people can never be justifed. I
cannot agree with this statement. If we
take an ideal world example, a clearly
written conscription law can potentially
send thousands of especially ft men to
fght in the war, where all of them will
die, but win the war. A difering con-
scription law may make a more general
conscription sending more unft men to
the front and increasing casualties, but
changing the certainty of death of the
few to the potential death of the many.
In my view, the second conscription law
will be more just purely on utilitarian
principles, which may be economic, as
in the present case.
I cannot say, however, that the proce-
dural interpretation of art 12 by Justice
Kaytee is equally wholly compelling.
Tis interpretation, as I said, is stripped
of the relevant social and economic cir-
cumstances. Nevertheless, I would say
that it is preferable than the decision of
Justice Kaytee, as at least it ignores the
purely subjective moral notions of Jus-
tice Dowley. Tus the binding decision
of this case should be the judgment of
Justice Kaytee.
Law itself has no
inherent moral value.
Legal system is a
framework of simple
rules and principles,
given by a valid
legislature, and the role
of the judge is to fairly
apply those rules and
principles.
Justice Dowley is
making a logical
presumption that a
law taking the lives of
innocent people can
never be justifed. I
cannot agree with this
statement
Ebor Lex June 2014
50 51
T
he statements made by
Mahmood and Champi-
on are two which encom-
pass the problems that
arise from homelessness, however,
they arguably do not corroborate
with Part VII of Te Housing Act
1996, Homelessness (henceforth
referred to as the Act). In order for
a homeless person to successfully
apply for priority need assistance
from their local authority they
must frst satisfy and overcome a
series of hurdles which test their
vulnerability (required by law
1
);
which have been the centre of con-
troversy over recent decades.
Te test assessing the vulnerability of pri-
1 For vulnerable homeless see, s.189(c), Housing
Act 1996
ority need applicants has been described
as a method of gate-keeping
2
public
funds or a good practice
3
in its ability to
support mental health agencies in ensur-
ing prompt aid is provided to applicants
with mental health problems. Tis issue
is highly litigated due to the lack of statu-
tory defnition of the term vulnerable.
Te general court interpretation has been
the primary source of defnition, incor-
porating a tendency for leniency on local
authority discretion through the many
cases heard on the matter
4
. Tis essay
seeks frstly to defne the term vulnerable
in accordance with current case law, and
secondly, to dispute the use of leniency,
arguing for the reduction, if not entire
removal, of local authority discretion in
2 Kennett P, Marsh A, Homelessness: Exploring
the New Terrain (Policy Press, 1999) 164
3 House of Commons OPDM, House of
Commons report on Homelessness (2005) Volume
1, Tird Report Session 2004-05 <http://www.pub-
lications.parliament.uk/pa/cm200405/cmselect/
cmodpm/61/61i.pdf> accessed 29/12/2013
4 Case confrmating the two-part vulnerability
test, see R v Camden LBC, ex p Pereira (1998) 31
HLR 317, CA
homelessness cases.
Defning Vulnerability
Te term vulnerable is used in section
189(c) of the Act to diferentiate between
statutorily homeless
5
applicants who are,
and are not, a priority need for accom-
modation. Te word in the context of the
Act is as follows: A person who is vulner-
able as a result of old age, mental illness
or handicap or physical disability or
other special reason, or with whom such
a person resides or might reasonably be
expected to reside. Issues arise on appli-
cation of this section due to the term vul-
nerable having no legislative defnition.
Following the ratifcation of the Act, a
number of cases have progressed to the
upper courts following disputes between
local authorities and individuals on the
correct defnition of the term vulner-
able. Indeed, it is the most litigated area
of homelessness and remains a subject of
academic debate to this day
6
. Tis has lef
5 S.175, Housing Act 1996
6 Hughes D and others, Cases and Materials on
Joshua Douglas
Vulnerability,
Discretion, and
Public Housing
Policy
Homelessness is an isolating and deskilling expe-
rience for the people afected. It afects their health
and well-being in a signifcant and ofen lasting
and damaging way
Shabana Mahmood, MP
Te links between homelessness and health are
cyclical
Sarah Champion, MP
Ebor Lex June 2014
52 53
cessfully reduce the acceptance rates
of certain authorities. Subsequently, a
culture of refusal has occurred, especially
encompassing vulnerability due to mental
health issues. Less severe issues treated
with medication leaves could leave the
individual less vulnerable than neces-
sary, while a lack of prescription suggests
they are not in enough need to have it ad-
ministered. Terefore, a catch-22 forms
through the use of discretion when a lack
of resources encourages the need for one.
While the accusations of the prac-
tice would face a response of absolute
denial
26
, gate-keeping by authorities can
be implied through statistical analysis
of government data on acceptance rates
of varying categories of priority need
27
.
Troughout the 14-years of recorded ap-
plications, the variation on acceptance
rates for vulnerable categories (when
analysed separately) is less than 3%. For
example, in any given year acceptances
included 5-7% disabled applicants; 1-4%
old age; 7-9% mentally ill; and 3-6% do-
mestic violence. Tis marginal variation
<http://extra.shu.ac.uk/ppp-online/wp-content/
uploads/2013/06/severity_mental_health_rights_
homeless.pdf> accessed 29/12/2013
26 Hoskins Q, How to Deal with Local Au-
thority Gate-Keepers (2009) Te Legal Secre-
tary Journal <http://www.legalsecretaryjour-
nal.com/?q=homeless_applications> accessed
29/12/2013
27 Government Statistics, Live Data Sets- Table
773(1998-2013) <https://www.gov.uk/government/
statistical-data-sets/live-tables-on-homelessness>
accessed 23/12/2013
in acceptance rates per category suggests
that gate-keeping by local authorities may
well be accountable to a modus operandi
strictly adhering to a quota of acceptance,
ensuring a certain number of each catego-
ry of applicant are accepted. Alternatively,
it could be deduced that the number of
applicants per category varies little year-
on-year, however due to the impromptu
nature of homelessness, statistics are more
likely to support the employment of gate-
keeping. Discretionary powers are too
wide at present.
Nevertheless, it is understandable that a
tight restriction be enforced in order to
avoid an over stretching of local council
funds. Tis is especially prevalent as the
dwindling social-housing stock (chart 1
28
)
places pressure on authorities to ensure
homes made available are given to those
in the highest need; Tat is when s. 189
can be applied.
Reports of particular concern arise,
however, when discretion denies the vul-
nerability of suferers of mental health
problems even where strong evidence
purports to aid their application
29
. Te
decision in Osmani to support current
28 Taken from the Department for Communi-
ties and Local Government, Housing Statistical
Release (december 2013) at 3, <https://www.gov.uk/
government/uploads/system/uploads/attachment_
data/file/266691/Local_authority_housing_statis-
tics_201_13.pdf> accessed 3/1/2014
29 ibid (n9) at 461
discretionary powers seemed to place
the term depressive homeless person as
synonymous with an ordinary homeless
person
30
. Indeed, discretion has caused
lengthy litigation battles between the
authorities and an applicant over medical
reports
31
. Applications have been re-
jected where the individual is vulner-
able to the extent that they are suicidal.
A controversial example, Bellouti saw a
non-vulnerability decision upheld by the
courts as conficting evidence provided
suggested the applicant might not act out
the suicide
32
. Such a decision was within
the rights of the local authority, however,
the ruling in Grifn provided assistance in
determining vulnerability in future cases
by specifying a need for a signifcantly
increased risk of harm befalling the ap-
plicant when compared to an ordinary
homeless person
33
. Such an addition to
the test implemented by local authorities
only widens their discretionary powers,
now needing a signifcant risk of harm
to support an application for priority
need.
Discretion: Past or Future?
Many issues arise through the use of dis-
30 ibid (n27) at 21
31 Authorities are legally entitled to obtain their
own medical evidence under Hall v Wandsworth
LBC [2005] H.L.R 23; However, must adhere to a set
of rules if obtaining such evidence, Shala ibid (n26)
32 Bellouti v Wandsworth LBC [2005] H.L.R 46
33 Grifn v Westminster C.C [2004] H.L.R 32 at
para.16
the courts with the question of how the
word should be interpreted, which in turn
has seen the defnition and redefnition
of it in an attempt to correctly implement
the law
7
. Te current defnition is taken
from Waller L.Js attempt to defne vulner-
ability within the parameters of section 2,
Housing Act 1977:
Less able to fend for oneself so that
injury or detriment will result when a
less vulnerable man will be able to cope
without harmful efects...
8
Tis defnition gives little indication as
to the scale of vulnerability; Te list of
persons eligible for priority need due to
vulnerability was expanded by the Home-
lessness Order 2002
9
to include those vul-
nerable due to time spent in care, custody
or in the HM Forces and for cases involv-
ing violence. To aid local authorities in
determining the extent of an applicants
vulnerability, a section within the Home-
lessness Code of Guidance was produced
focusing solely on the list, which directly
succeeds the term at s.189(c)
10
.
A two-part test devised and applied in
Bowers
11
has been adopted by the courts
and local authorities as the standard test
of an individuals vulnerability
12
. Even
though the test has been applied in cases of
vulnerability since its inception, criticism
has been aimed at the overall implemen-
tation of it. Neill L.J discussed the use of
a composite question in determining vul-
nerability, as opposed to a two-stage test,
stating that it would cause less confusion,
and perhaps avoids overlooking factors re-
lating to a special reason for vulnerability,
rather than deciding an application on the
facts as a whole
13
.
Te decision-making power is delegated to
those in the best position to make the deci-
sions; Local authorities. Laws L.J, in Kruja,
summarises the support the courts have
Housing Law (Blackstone press, 2000) 333
7 Luba J, Davies L, Housing Allocation and Home-
lessness: Law and Practice (Jordan Publishing, 2012)
457
8 R v Waveney DC ex p. Bowers [1982] 3 W.L.R 661
at 244
9 Homelessness (Priority Need for Accommoda-
tion) (England) Order 2002 (SI 2002/2051)
10 Department for Communities and Local Gov-
ernment, Homelessness Code of Guidance for Local
Authorities (2006) <https://www.gov.uk/govern-
ment/uploads/system/uploads/attachment_data/
fle/7841/152056.pdf> accessed 3/1/2014, at section
10.12
11 ibid (n10)
12 Te test was applied in Osmani v Camden LBC
[2004] EWCA 1706; also see, ibid (n6)
13 R v Kensington & Chelsea LBC (1997) 29 H.L.R
147 at 156
in the local authority decisions stating
that it is elementary that matters of that
kind were not... for us [to decide upon]
14
.
Morgan
15
supports this rhetoric, stressing
how rarely the courts should intervene as
the local authorities are the ones with the
knowledge and resources to deal with such
issues. In comparison to a local author-
itys ability to deal with the homeless, the
courts are merely the theoretical battle-
ground where speculative areas of law are
pondered over. Laws L.Js judgement right-
fully emphasises that courts should be as
inconspicuous as possible when dealing
with homelessness cases unless a point of
law is in question.
Laws goes one step further in his obiter
dicta by proposing that the question vul-
nerability, is one answered by the context
of the terms use in s.189(c). By looking at
the cause and efect inferred by the catego-
ries of vulnerability that succeed the term,
it embraces the context in which the ap-
plicant may be less able to fend for himself
so that... detriment may be sufered by him
which would not befall the average home-
less person
16
. In light of this dictum, it is
interesting to see if any pronouncements
are made in subsequent cases as to the
application of the term vulnerable in line
with both the Pereira test and the Code of
Guidance. As yet however, no substantial
change has occurred.
Consequently, the defnition of vulner-
able is a subjective one, dependent on
the respective local authoritys implemen-
tation of the Pereira test in line with the
Code of Guidance
17
. While the courts have
attempted to provide a test and a way of
efectuating it, which amounts to a com-
posite assessment
18
of an application, the
terms ultimate defnition has deep founda-
tion in the discretionary powers awarded
to local authorities
19
.
Authorities and Discretion
Due to the lack of a statutory defnition
of the term vulnerable, coupled with the
courts insistence on supporting the use of
discretion by local authorities, it is evident
that a substantial amount of power rests
with authorities as long as they operate
within the parameters of the law. Tis
is because authorities have a wide ex-
14 Kruja v Enfeld LBC [2005] H.L.R 13 at 23
15 Morgan J, Aspects of Housing Law (Rev edn,
Routledge-Cavendish, 2007) 192
16 ibid (n16) at 39-40
17 ibid (n12)
18 Arden A, Orme E, Vanhagen T, Homelessness
and Allocations (8th edn, LAG, 2010) 168
19 ibid (n8) at 334
perience of homeless applicants
20
; As a
result, they are not required to defne the
non-vulnerable homeless person used
comparatively when utilising the Pereira
test. However, this leaves the application
process open to potential exploitation as
the authorities are able to qualify their in-
dividual judgements without reference to a
pre-determined defnition of vulnerability.
It has been noted by the Court of Appeal
that local authority decisions vary widely
across constituencies as varying levels
of vulnerability are found where similar
case facts are apparent. In defence of this
variation, Laws L.J is noted for his open
approach to the problem; Some might
consider the decision a harsh one. Some
decision-makers might arrive at a diferent
conclusion... [they are] not for the judge
21
.
It is no secret that such a view is held con-
sistently throughout judicial rulings on
this matter. Pereira and Osmani are two
such cases, which reinforce the need for
discretion in local authorities, allowing for
a dependency on previous precedent to
develop. Tis is a fundamental feature of
the English legal system, persistent within
housing law. However, issue arises when
such persistency sees continuing enforce-
ment of discretion in local authorities
when such powers are arguably abused.
Gate-keeping public funds is as powerful
as statute and case law
22
. Under the cir-
cumstances, such an idea could arguably
carry the day. With the defence for discre-
tion prima facie absolute, it seems logical
to discuss how far discretionary powers
are applied to gate-keep rather than deter-
mine the level of vulnerability necessary to
gain priority need status.
Instances where discretion could be used
by local authorities beyond that deemed
appropriate are ofen hailed as methods
of urban gate-keeping
23
. Such sugges-
tions have undoubtedly been taken into
consideration by the courts, and yet on
the balance of public interest vs the needs
of the homeless, the judiciary continue
their support of authorities in their efort
to husband their resources
24
. To do this
efectively, authorities have sought the aid
of contracted medical services for advice.
NowMedical is one such gatekeeper
species
25
that have been shown to suc-
20 Madge N, Sephton C, Housing Law Casebook
(4th edn, LAG, 2008) 778
21 ibid (n16)
22 Aers R, Enoughs Enough (London, March
2009), Roof 26
23 ibid (n4)
24 Shala & Anor v Birmingham City Council
[2008] 8 H.L.R 118
25 Hunter C, Denying the Severity of Mental
Health Problems to Deny Rights to the Homeless
(2007) People Place and Policy Online, 2 and 24
Ebor Lex
54 55
cretion to defne vulnerability. Te judi-
ciary seem to support the Pereira test,
almost encouraging the continuation of
authority discretion through the sug-
gestion of a composite-approach
34
and
other such directions. It would seem that
a radical overhaul of the process is nec-
essary to remove or reduce discretionary
powers. We may fnd the blueprint for
such an overhaul in Scotland.
As of March 2012, all unintentional
Scottish homeless were classed as prior-
ity need removing the applicability of a
vulnerability test altogether. In response
to this improved council homelessness
schemes, the number of people seeking
help has fallen by 11% over 2013 with
cash injections into social-housing and
homelessness prevention aid promised
35
.
Tis has completely removed the issue
of discretion and has seen apparent im-
provements in homelessness numbers.
Te numbers are a promising sign that
the decrease is a result of the change in
law.
Support for such change can be implied
from Lovelands study stating that only
by removing the considerable discre-
tion provided to authorities can incon-
sistencies be avoided
36
. Such a system
without discretion is a possibility for
England, however it would be unwise
to implement it without frst address-
ing the potential efect on resources for
authorities. With a lack of housing or
funding to build more, a change in the
law could spell disaster for the most
desperate homeless with less vulnerable
individuals being ofered houses on an
equal basis.
Even though Lovelands study is almost
twenty-years old, it is arguably relevant,
the fndings being mirrored by Hunters.
However, rather than call for a change
in law, she suggested that an increase
in consistency is necessary within the
current process to make it fairer on ap-
plicants
37
. Te Code of Guidance can be
found attributable for partially causing
inconsistency by not providing detailed
34 ibid (n15)
35 Frankel M, Fall in Scottish Homelessness
Applications (November 2013) <http://www.
bbc.co.uk/news/uk-scotland-25002321> accessed
29/12/2013
36 Loveland I, Housing Homeless Persons: Ad-
ministrative Law and the Administrative Process
(Clarendon Press, 1995) at 160
37 Hunter C, Bretherton J, Te use of medical
Evidence in Homelessness Cases (2012) Research
Summary <http://www.york.ac.uk/media/law/
documents/ESRC%20Medical%20Evidence%20
Research%20Summary.pdf> accessed 3/1/2014
support for local authorities on issues
such as medical reports. Te Code of
Guidance has therefore come under
rightful criticism. Pitchford L.J high-
lighted how the Code has grown in-
crementally and upon reading implies
the authors did not start from scratch
in order to ensure the consistency of
approach between diferent categories
of vulnerability
38
. Tis undermines the
credibility of the Code in its efectuation
by local authorities as Pitchford further
stated his inability to consider the Code
of assistance in interpreting s.189(c).
One the other hand, he later advocates
the common sense approach of the Code
in its repeated reference...to consider
all circumstances of the applicant
39
.
Without such guidance the law would
most likely be lost to those dealing with
applications. Most are likely not to be
versed in the jargon of the judiciary, or
indeed have knowledge of such judge-
ments existing, and so the existence of a
Code is necessary to provide the law in
a simpler and more appropriate fashion
to aid in its exercise. A new Code of
Guidance would allow for more experi-
ential advice to be written, encouraging
a sourcing of information from current
judgements and gauging of social and
economic climates to provide improved
support.
No matter how homelessness is dealt
with, it is clear that the current system
cannot proceed. Te extension of discre-
tionary powers through common law is
widening an already broad spectrum of
non-vulnerability into which local au-
thorities are shepherding applicants they
cannot deal with due to resource con-
straints. Te vagueness of vulnerability
as a defned legal term gives rise to the
sizeable amounts of discretion which
is exploited by authorities, whether
through want or necessity. Housing
stock should no longer be the measure
of an individuals worth and the long
overdue discussion on how to build a
home for everyone in the UK needs to
fnally begin. By viewing the homeless
as more than second-class citizens, and
removing the test to discern who is more
deserving among them, we can fnally
accept as a society that the homeless are
our responsibility... not [to be] shunned
in any respect
40
.
38 Hotak v Southward LBC [2013] EWCA Civ
515 at 38
39 ibid
40 HL deb 27 June 2013, vol 746, col 863
No matter how
homelessness is dealt
with, it is clear that the
current system cannot
proceed. Te extension
of discretionary powers
through common law
is widening an already
broad spectrum of non-
vulnerability into which
local authorities are
shepherding applicants
they cannot deal
with due to resource
constraints.
The Right to Education
Over Time
A
childs right to educa-
tion became recognised
as a key requirement
of a civilised society in
the early nineteenth century. Until
1870,
1
education was a preserve for
the wealthy and seen as a subordi-
nate function of childhood.
2
Once
education became compulsory
3
the
1 Elementary Education Act 1870.
2 Evans E, Te Forging of the Modern State: Early In-
dustrial Britain 1783-1870 (3 edn, Harlow, Longman,
2001) 232.
3 Elementary Education Act 1876.
school leavers age rouse rapidly
and is today seventeen
4
and will be
eighteen from 2015.
5
Situating ourselves in a trajectory that
is still unfolding benefts the study of
the law of education in the twenty-frst
century as it allows us to refect upon how
the changes to education in the past are
still infuencing the changes to education
in the present. In this article I will look at
the natural progression of a childs right
to education from industrialisation
6
until
4 Government, School Leavers Age (9 January
2014) https://www.gov.uk/know-when-you-can-
leave-school accessed 14 March 2014.
5 Education and Skills Act 2008 Chapter 1.
6 Atiyah P S, Te Rise and Fall of Freedom of Con-
tract (1 edn, OUP 1985) 257.
present. Firstly, with regards to the inter-
ventionist state, let us question the states
rationale for intervening and how it only
does so as far as is necessary.
7
Tere are
four forces, which I see as paramount to
why education has been reformed since
the nineteenth century. Secondly, I will
consider how the rights of the individual
have been infringed
8
as education has
evolved and how this intervention is jus-
tifed by the complexities of society. In
relation to this I will explore compulsory
7 An Occassional Contributor, Te Education of
the Million Te Ipswich Journal (Ipswich 5 March
1870) Issue 6817.
8 D Lawton, Te Education Reform Act: Choice
and Control (British Library Cataloguing in Publica-
tion Data, 1989); David H. Hargreaves, A Sociologi-
cal Critique of Individualism in Education [1980]
British Journal of Educational Studies, vol 28, no. 3.
June 2014
Rachel Newell
Ebor Lex June 2014
56 57
education, choice afer being educated
to the basic standard,
9
the impact of the
ECHR
10
and how the state is needed to
allow all children access to education. Fur-
thermore why, when looking at history, an
individual can rarely be a sole individual
11

and how making education available to the
masses allows equality and breaks down
classism. Finally, consideration will then
be given to how education allows social
mobility between classes and professions,
yet the private and state school divide still
remains and regardless of the states inter-
vention, inequalities with opportunities
also remain.
Industrialisation and the complexities
that arose as a result, including popula-
tion growth and urbanisation, opened the
foodgates to an interventionist state that
used education as a tool that interjected
into the lives of the free Englishman
12
in
an attempt to produce an educated society
that knew how to abide by the social con-
tract.
13
Te lack of foundation to build an
education system for the masses led to a
string of inconsistent donations and in-
adequate legislative attempts.
14
It was not
9 G.C.T.B., Te Elementary Education of the
Country Journal of the Womens Education Union
(London, 16 October 1877) 145.
10 Julian Lonbay, Education and law: the Commu-
nity context [1989] European Law Review 363.
11 J Tosh, Te Pursuit of History (5 edn, Pearson
Education, 2006) 222-223.
12 (n 7).
13 (n 10).
14 Anonymous Council of Legal Education, A
Century of Law Reform: twelve lectures on the changes
in the law of England during the nineteenth century,
delivered at the request of the Council of Legal Edu-
cation in the Old Hall, Lincolns Inn, during Michael-
until Forsters Bill
15
that a justifable in-
tervention emerged. Te state recognised
the reluctance of society to accept the in-
fringed rights of the individual, however
the free market was failing the majority of
the population, leaving young people less
skilful. Previous teachings were not acces-
sible to the working class, most of whom
lived in the new urban areas, due to a fear
that educating such classes was an unnec-
essary indulgence that would lead to seg-
ments of society rising above their order.
16

Te trust that was once central to the
agrarian communities
17
had dissolved as
if by the pollution from the new factories.
Although originally controversial, in 1876
a consensus was reached that the states
intervention had been successful.
18
From
this point onwards the rise of compulsory
education was set in motion as the state
began to appreciate the importance of in-
vesting in the next generation. Today we
fnd ourselves again in times of striking
change, with globalisation and techno-
logical advances increasing competition
between nations, yet it is from industriali-
sation that we see the demand for educa-
tion start to unravel as society becomes
more complex. As such, raising the school
leavers age is a natural progression parallel
mas term 1900 and Hilary term 1901 (Bibliolife LLC,
1901) 151-155.
15 Alfred Codd, Mr Forsters Elementary Educa-
tion Bill New Readerships (London, 19 March 1870)
209.
16 Evans (n 2) 231.
17 Sarah Wilson, Britain fromC. 1750: Te
emergence of modern Britain (Plenary, seminar 2,
20 January 2014) Slide 11.
18 ibid.
to the evolution of society. It is from this
point that I agree with Tosh that situating
ourselves in an evolving society gives us
some purchase on the future and allows
a measure of forward planning.
19
Iden-
tifying with educational development,
as a process does not mean that we have
to agree with its changes, however the
majority would agree that an educated
society is a sophisticatedly organised and
civilised one that shares a mutual stand-
ard.
20
By refecting on the infuences that
prompted education reform in the nine-
teenth century we can predict where more
changes to education may be made in the
future.
21
I believe that the forces infuenc-
ing why the state intervenes in education
today are the same as the forces that infu-
enced education reform in the nineteenth
century. We would not know about these
similarities, unless historical awareness
22

had been projected into the past to look at
education reforms.
Firstly, the state ofers a form of protec-
tion to children subject to child labour.
23

Te risk of this began in 1833
24
and the
Victorians recognised that child exploita-
tion is unattractive in a civilised society.
25

However, education in this context was in-
19 Tosh (n 13) 40.
20 ibid.
21 ibid.
22 Tosh (n 13) 1.
23 Clare Harrison, Child labour turning a blind
eye? [1991] N.L.J., 141(6494), 301.
24 Factories Act 1833.
25 Sue Palmer, Child Exploitation, 21
st
Century
Style (January 2010) < http://www.suepalmer.co.uk/
modern_childhood_articles_child_exploitation.
php> accessed 20 March 2014.
adequate and did not put a stop to exploi-
tation of children as the factories dictated
education. Te need for compulsory edu-
cation to put a stop to child labour was the
rationale behind the 1876 Education Act,
which ofered a protective blanket to chil-
dren between the ages of 5-10 and prohib-
ited any employment that would interfere
with a childs education. From this a simi-
larity between the centuries can be seen, as
the state does not expect children to work,
rather it ofers a safe place for this vulner-
able section of society. Despite attempts to
protect children, exploitation leaked into
the twentieth century
26
and still causes
issues today.
Alongside this an underlying motive to
combat youth unemployment emerged.
Te nineteenth century mindset meant
that the state would only help those that
helped themselves, if not, you only had
yourself to blame.
27
Tis rationale does
not sit well with society today as since the
80s we have become accustomed to state
intervention as a means of help, the dif-
ference being that in the 19
th
century state
intervention was needed to protect the
majority whereas today it is the major-
ity that exceed the school leavers age and
stay in some form of education or train-
ing. Te unskilled worker has disappeared
and the state intervenes with justifcation
to improve the skills of society, giving each
member the same chance of competing
in an increasingly globalised world.
28
Re-
search commencing in 2009 has prepared
the country for raising the school leavers
age and a subjective criterion for each
school district has been formed.
29
Such
sophistication was also in operation in the
nineteenth century, as by reforming edu-
cation the state intervenes, and then leaves
enforcement up to the individual to follow
the school board, teachers and parents,
with the state only intervening again if
the individual breaks the social contract.
Applying this to raising the age today, we
can see that the options for the individual
aim to cater to all preferences
30
which ra-
tionalises state intervention as minimal in
proportion to the fact that sole individuals
or small collectives can no longer organise
education for such a large population. Te
state, as the highest being of our country,
is best equipped to improve the standard
of society through determining the set
standard we should all be educated to. It
does so by installing the same values, al-
26 Children and Young Persons Act 1933.
27 (n 10).
28 Lonbay (n 11) citing ECHR para 17.
29 Department of Education, http://www.educa-
tion.gov.uk accessed 14 March 2014.
30 Government (n 4).
lowing us to continue living in the civilised
western society to which we have become
accustomed.
Starting the education process from a
young age allows everyone to reach the
same standard
31
and have the tools in
place to deal with what is to come. By the
state pushing society in the right direction
this reduces the chances of the individual
relying on the state, whether this reliance
is in the context of the poor law amend-
ments
32
or welfare benefts today. In this
sense, we see history as a circular force re-
peating itself, as characteristics of society
are similar and I see education change as a
positive progression as changes to educa-
tion in the past have been for the better,
and changes in the future will also be.
Although England was the workshop of
the world,
33
the competition in the nine-
teenth century was with already estab-
lished economies and Forster believed
that leaving work folk unskilled would
see us over marched by the competition.
34

Whereas today, globalisation has meant
that emerging economies post the biggest
threat to western societies as it is inevitable
that countries such as China and India will
be able to ofer cheaper labour and manu-
facturing, and it is on the basis of this that
New Labour thought it had never before
been so crucial to raise the leavers age.
35

Our nations skills were not world class and
without raising education standards we
would be jeopardising our long-term pros-
perity.
36
Diferences such as these reinforce
the fact that nothing in history stands
still and that we cannot impose modern
assumptions on previous ages. Instead
we can use education history as a social
mechanism
37
and refect upon the striking
change that we have endured.

To understand how education has got to
this point we must situate it in our present
time, tested against the historical record
and if necessary replaced by a more accu-
rate perspective.
38
Discussion surrounding
the rising age today draws upon the Victo-
rian mind-set, as it is unacceptable to have
a large proportion of society unemployed
ofering little contribution to the country.
31 ibid 268.
32 E L Woodward, Te Age of Reform 1815-1870:
Oxford History of England (2 edn, OUP, 1963) 430.
33 Robin Simmons, Raising the Age of Compul-
sory Education in England: A Neet Solution? [2008]
British Journal of Educational Studies, vol 56, no. 4,
428-431.
34 ibid 424 citing Forster 1870.
35 Simmons (n 49) 422.
36 Simmons (n 49) 423 citing Te Leitch Report
of 2006 p 1.
37 Atiyah (n 6) 256.
38 Tosh (n 13) 40.
As societies standards increased, educa-
tion was seen as the predominant way chil-
dren could better themselves and improve
the overall standard of the country. Today
this is similarly the basic premise of raising
the age. However, we increase the pressure
on young people to make early choices as
to their future and risk unleashing a gener-
ation obsessed with working. Objectively,
an educated society is a society with high
standards, yet when the rights of the indi-
vidual become unprotected as a result of
excessive educational demands, the state
has failed in its duty to protect children
who are still considered vulnerable.
In addition, nineteenth century educa-
tion did little to promote the individual
as we have seen that children were and
still are considered a vulnerable class of
persons in need of protection. However,
some thought punctuality should not be
compulsory as it would come naturally
and there was no evidence to suggest that
direct compulsion between the ages of fve
and twelve worked, in fact there was evi-
dence to the contrary.
39
Compulsion was
seen as oppressive to the individual values
society had always abided by.
40
As discov-
ered above, the growing population and
demands of an evolving, complex society
meant that the individual had no choice
but to accept that its freedom would be re-
stricted on the condition that the whole of
civilised life would be improved through
education. Tis accepting mind set is still
at play today, for example, the nineteenth
century state recognised that academic
education was not for everyone and it re-
sponded with practical options.
41
Today
we see this in the apprenticeship culture,
volunteering opportunities and the allow-
ance to work full-time whilst studying.
Moreover, the ECHR recognises a na-
tional minimum standard in each member
states education system and that each state
is there to provide fnancial assistance
and opportunities for the individual to
pursue its chosen career. Tere needs to
be an opportunity to carry on in education
throughout ones working life and improve
skills or obtain new skills in light of tech-
nological developments. Tis should be
provided by each member state, however
what is studied, post basics, is the individ-
uals choice.
42
When looking at state indi-
vidualism, in one sense we no longer need
to look at history as education, specif-
cally higher education, no longer always
39 (n 10).
40 Contributor (n 7).
41 ibid.
42 Lonbay (n 11) citing ECHR Articles 9 and 10.
Ebor Lex June 2014
58 59
falls purely within our domestic jurisdic-
tion. Co-ordination of training with other
member states allows free movement into
education in other European countries
consequently promoting a peoples Europe
through education
43
and relinquishing the
need to focus too heavily on Englands ed-
ucation history.
In the nineteenth century parents choose
whether their child worked whilst in edu-
cation. For some working class families
this was inevitable, as families were de-
pendent on their childrens wages. Tis
seeped through into the twentieth century
and in 1901 300,000 children did this.
44

Raising the age through legislation was the
only speedy and efcient way to change
this.
45
Since the frst oferings of free milk
for children in need of fnancial assistance
and today providing free education for
16-19 year olds, subsidised transport and
uniform,
46
the state is protecting a childs
right to education. However, in 1947 there
was a 130% increase in children enrolling
in higher education,
47
in this sense the in-
dividual is still helping himself as the ma-
jority are sophisticated enough to decide
whether they want to stay in education and
in 2008 87% of children stayed in educa-
tion post sixteen.
48
By making the school
leavers age compulsory the state is merely
showing itself in a positive light, either
taking credit for the individuals choice or
imposing upon the 13%
49
that choose not
to stay in education post sixteen, albeit the
more vulnerable proportion.
When we refer to the individual we do not
refer to a sole individual, rather a collec-
tive of individuals.
50
Tis is because al-
though no two individuals are the same,
the way they behave in certain situations is
similar, for example, education campaign-
ers wanting to institutionalise education so
the future was structured.
51
Regardless of
the individual, education is circular as the
actions of such campaigners made educa-
tion an institution and such institution is
then changed by actions,
52
such as youth
unemployment. To understand the forces
leading to this change we need to look at a
collective of individuals instead of looking
at a sole individual as he is likely to provide
no shape and instead a chaotic sequence
43 Ibid citing ECHR Article 235.
44 ibid.
45 Musson and Stebbings (n 34) 75.
46 Department of Education (n 41).
47 Simmons (n 49) 427.
48 ibid 421.
49 Ibid.
50 Tosh (n 13) 268.
51 Contributor (n 7)
52 Tosh (n 13) 222-223 citing Philip Abrahams.
of events.
53
Moreover, some believe that
our society focuses excessively on the in-
dividual and trivialises social functions of
education in the process. To base children
on their merits we must compare them to
the mass without any social barriers and
reward their talent and efort according-
ly.
54
By promoting the individual, educa-
tion cannot promote a certain individual-
istic type of society that is out of its reach,
as due to the similarities between indi-
vidual interests, looking at a collective is
inevitable.
State intervention provides equality and its
1870 beginnings describe a fair and liberal
act supporting all moderate and practical
men, providing access to public elementa-
ry education for all children.
55
Industriali-
sation pushed working class families into
cramp urban areas without the necessary
education facilities and full of factories
with minimal education where children
were expected to work and rarely exceed-
ed three and a half years in education.
56

Te upper and middle classes sent their
children to private schools in the country,
but as the industrial class emerged and
demand grew, the state was needed. Today
the vision of the Department of Education
is equality for all backgrounds,
57
which is
the same vision Forster had.
As education has evolved we have em-
braced social mobility
58
and to some extent
breached the classism divide. Equality
helped do away with this in the nineteenth
century by local school boards having the
discretion to remit whole or part of a childs
school fee in poverty cases. Tis upheld
the fact that the emerging and established
classes alike needed educating to survive
in the foreign society that had emerged
as a result of industrialisation.
59
Children
were no longer born into a certain pro-
fession and as lower orders began to rise
above their previously restricted status,
60

more choice was allowed. With this came
healthy competition, as for the frst time
there was a widespread society all educat-
ed to the same standard with the opportu-
nity to dictate its own future. Although a
wider cross section of society was begin-
ning to be represented through education,
today it is inevitable that as long as private
schools are around, the privileged classes
will be able to be educated in such estab-
53 Tosh (n 13) 222-223.
54 ibid 194.
55 Contributor (n 7)
56 Evans (n 2) 232.
57 Department of Education (n 41); (n 1).
58 Tosh (n 13) 72.
59 Atiyah (n 6) 257.
60 Evans (n 2) 231.
lishments, which are still considered to
teach to the utmost standard. It has been
argued that increasing parental choice
would stand a better chance of improving
the educational standards of each genera-
tion than raising the school leavers age,
61

as this avoids situations where only the
privileged can aford to send their children
to private schools. Tis would be fairer
to the majority and more choice between
schools would increase competition and
see the worse schools closed.
Te remaining issue in the twenty-frst
century is that nineteenth century society
did not want to put the power of educating
the million into the hands of those whose
infuence meant that they could favour
relatives or friends. If this happens today,
the state would say that it does so under-
handedly, however I do not believe that
this is now a myth as a great stigma is still
attached to who you know; if you know
a lawyer, you will more than likely be able
to get advice and work experience from
them. Te state may provide equal educa-
tion opportunities, however this objective
standardisation ofers little help to the in-
dividual from a working class background
who, through no fault of their own, has not
had as much experience outside of their
compulsory studies, yet is as ambitious as
the upper class child, as from an employ-
ers perspective the candidate who knows
the frm and comes with high recommen-
dations will be favoured.
A childs right to education has evolved as
society has since the nineteenth century.
Te interventionist state was, and still is
needed to: protect children from exploita-
tion, combat youth unemployment, edu-
cation society to the same standard and
help the public expenditure strain. Greater
choices in education have emerged to
refect individual interests, yet as long as
children remain a vulnerable class in need
of protection the individual becomes a col-
lective with state intervention being neces-
sary. Te aim of education has always been
to provide equality of access for all and
although diluted, a classism divide seem-
ingly remains. Raising the school leavers
age to eighteen is one of many pieces in
the education puzzle and it will not be the
last as our present becomes someone elses
past.
61 ibid.
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