2015 Selden Society lecture – the Hon Justice Peter Applegarth on Lord Atkin


Ladies and gentlemen, welcome to the fifth in the series of the Selden Society lectures. Justice Applegarth with characteristic modesty has suggested that I introduce him by mentioning that he’s a judge of the Supreme Court. Thank you. Justice Applegarth (APPLAUSE) Thank you for that very kind and concise introduction, Justice Fraser. President McMurdo, other Judicial colleagues and friends, distingushed guests, ladies and gentlemen. Any view of Lord Atkin is dominated by his
two towering judgments in Donoghue v Stevenson and Liversidge v Anderson. Yet
to focus upon the two judgments for which he is most famous risks overlooking some important contributions that he made to the law. Any speech to an Australian audience must begin with the fact that Lord Atkin was born in Brisbane. But as proud as we are
of Lord Atkin’s Australian origins, he didn’t regard himself as an Australian or a Queenslander.
He was a different kind of outsider in the colleges of Oxford and in the legal establishment
of London: a Welshman. There is, however, a good reason to treat
Lord Atkin as an honorary Australian. It has more to do with his work in the last few years
of his life than the accidental place of his birth. In 1943 and 1944 he represented
the Australian Government on the War Crimes Commission, a body that was established by the allies to investigate war crimes and to advise allies on how to try them. Lord Atkin
was uncompromising in his views that Nazi war criminals should be brought to justice,
if necessary before international tribunals. This stand was consistent
with the ‘sympathetic and welcoming’ attitude he displayed to refugees from Nazi Germany. According to his biographer, Geoffrey Lewis, Lord Atkin’s ‘humane and compassionate spirit was the most constant feature of his work for more
than thirty years on the English Bench’. Lord Denning described Lord Atkin as ‘a
progressive within the law’. These humane and compassionate instincts were not developed late in his life. They were inherited from a father who died tragically young after championing
progressive causes in Queensland politics. They’re also inculcated by powerful women,
who raised and educated James Richard Atkin. The first part of this talk concerns Lord
Atkin’s life and legal career. Naturally, I’m going to talk about Donoghue v Stevenson. At the
risk of being accused of elevating style over substance, I will concentrate on Lord Atkin’s
judicial method and style in that seminal judgment, and other judgments. It’s not just what he said, it’s the way
that he said it. It’s not just what he ruled, it’s the way that he wrote it. Lord Wright described
Atkin’s style as ‘chaste, composed, easy, accurate… But he could on occasion illuminate
a whole topic by a felicitous phrase.’ Now, I’m getting ahead of myself, Lord Atkin hasn’t even been born yet So let me retreat. He was born on the 28 November,
1867 at Ellandale Cottage in Tank Street. Less than 100 metres from where we gather tonight. His father, Robert Travers Atkin,
was an Irishman from County Cork. His mother, came from Wales. They were married in 1864 and four months after they married, they, departed for Australia. Professor Carney who graces us with this presence and who researched Lord Aktin’s life with great distincition suggests that the
Atkins’ reasons for travelling to Australia, were ‘probably curative and financial’. Members of the Atkin family had died from consumption and the remaining members sought a warmer climate. Robert Atkin who wasn’t wealthy also sought
his fortune. After a short stay in Brisbane the Atkins moved to a selection about 100 kilometres from Rockhampton, but the conditions were harsh and the colony was recovering from the depression. Robert Atkin was seriously injured when he fell off a horse. Mary Atkin’s health was poor as well. He was induced fraudulently it seems to invest in a stock and station agents’ business, that didn’t prosper. So the Atkins
decided to move to Brisbane and for Robert to become a barrister. He registered as a
student of law, but because of his work as a journalist and his involvement in politics he never finished his legal studies. Instead he was a journalist and a newspaper editor. His journalistic
coverage of Queensland politics led to a short parliamentary career. He was first elected in 1868 as the member for Clermont. He
was a leader of the liberal cause, which supported land reform, opposed the power of the squatters.
In 1870 he was elected unopposed to the seat of East Moreton which was then represented by two
members. And significantly, his fellow member after 1871 was William Hemmant, of whom we will hear more. Robert Atkin joined an extra-parliamentary group, called the Queensland Defence League, to oppose Premier
Palmer’s electoral redistribution, which would have reduced the number of seats
in Brisbane and its suburbs. They opposed the squattocracy and a group of six members
of Parliament from Ipswich and West Moreton who were dubbed ‘the Ipswich Bunch’. By 1871 Robert Atkin’s health was in
decline. Two other sons had been born by this time and the third born son was of poor health and Mary Atkin decided to return to Wales with all of her sons. The sons were never to see their father again. During the final years of his life Robert
Atkin enjoyed what Lord Atkin later described as the ‘unremitting care’ of William Hemmant,
who was both a member of Parliment and a prosperous merchant. About twenty years
later in England, William Hemmant became a benefactor of the young barrister, Dick Atkin,
and in 1893 became his father-in-law. Robert Atkin resigned as a member of parliment
in March 1872 on the basis that Samuel Griffith could be persuaded to stand for his seat and Griffith did so and won an election, and as we know championed the real progressive politics for the next 18 years or so of his life before, of his political life before he made common cause with the conservatives. Robert Atkin died on 25 May 1872, aged only
30. His wife who had returned to Brisbane the previous month and her arrival without the sons was said to have been a great disappointment to him since he yearned obviously to see his sons. A few weeks after
his death, Mary Atkin wrote to her two eldest sons and explained their father’s passing, how he had gone to heaven and how he sent his love to them. And she wrote: ‘Perhaps some day when you are big men, we shall come out to
Brisbane, and you shall finish the work that Papa had only time to begin.’ Later in his life, Lord Atkin wrote, ‘My
father must have been a man of exceptional gifts’. One of the pieces of evidence was an inscription upon a public memorial that was set up in memory of his father. It
was erected by the Hibernian Society, and still stands, some what obscurely, in Sandgate. The broken column
on the monument is said to symbolise ‘the irreparable loss of a man who well represented
some of the finest characteristics of the Celtic race – its rich humour and subtle
wit, its fervid passion and genial warmth of heart.’ The inscription on the monument
describes how Robert Atkin had ‘large and elevated views, remarkable powers of organisation, and unswerving advocacy of the popular cause, and
his rare abilities were especially devoted to the promotion of quote ‘a patriotic union among
his countrymen, irrespective of class or creed, combined with a loyal allegiance to the land
of their adoption.’ On Richard Atkin’s fourth birthday in
1871, his dying father had written to him encouraging him to be ‘truthful and honourable’.
And in April 1872, the month before he died, Robert Atkin wrote another letter which conveyed the final wish that his sons would grow up to be ‘nice unaffected gentlemen’, without concern for status, honourable and upright. The ‘rare abilities’ which Robert Atkin
displayed, his commitment to the values of liberal democracy and his egalitarianism were passed to his son. Now epigeneticists and psychoanalysts might debate whether the transmission of these
qualities was some kind of genetic inheritance, or the response of a son to the unfinished work of his father. The letters which Dick Atkin’s father and mother
each wrote to him must have had a powerful influence on him. But instead of returning to Brisbane to take up the yet to be completed work of his father, Richard Atkin took up similar causes on the other side of the planet. And rather than following his father into liberal politics in Queensland or Samuel Griffith into law and politics Dick Atkin lived the life of a Welshman. His formative years were in the Welsh countryside, and he and his brothers spent several years living with their grandmother whom Dick Atkin later
described as ‘the greatest woman I ever met’. He wrote of her that, native wit,
large sympathy, great experience of life cultivated by association with all classes of people,
an active memory stocked with folk tales and countryside traditions made her conversations
inimitable. She had strong likes and dislikes. She detested pretence either in rank or religion:
and she was not sparing in her denunciation of her pet aversion, the sanctimonious Calvinist.
Her sympathies were with people: not so much politically as in their ordinary life. We
were never allowed to speak of the ‘common’ people. The young Atkin also enjoyed the love and devotion
of his mother who would walk up the hill to give her children lessons in English history. Dick Atkin excelled academically at schools in Wales and before his 17th birthday he was awarded a classical demyship at
Magdalen College, Oxford. However, his time at Magdalen was not a happy one. He later wrote that his
life, there was not happy, he was ‘too young, at any rate it was too young for me,’ he wrote. He was young and sensitive, he had a small allowance and he fraternised with other Welsh students. After graduating from Oxford and completing the Bar exams he went in search of a pupil master and went around the courts to see the greatest advocates of his time. He settled upon Thomas Scrutton who had a leading practice
at the commercial bar. Atkin described Scrutton as being the ‘complete master of the facts and
the law’. Atkin persuaded Scrutton to allow him to become his pupils. Scrutton’s pupils worked in what’s been described as unattractive chambers and temporal gardens under conditions of austerity. After completing his pupillage in 1891 Atkin
took chambers. But lacking connection with solicitors, the briefs were few and far between.
Good fortune came in the form of William Hemmant who, after his career in Queensland politics,
had become resident partner of his firm in London. Hemmant gave most of his legal work
to a young solicitor named Norman Herbert Smith who had just started a firm in the City of London. Smith promised to give Atkin his first brief and
fulfilled the promise. Atkin recalled that it was one of the most difficult cases he had ever had to
advise upon in his whole career. And Atkin wrote to his mother in March 1891 ‘It was a very complicated case and I think I earned my guinea.’ Smith continued to brief Atkin during the whole of his career as a barrister, and of course Herbert Smith went on to build one of the most prestigious firms
in the City of London. Smith was about the only solicitor who briefed Atkin in his first year. But a little later Hemmant introduced Atkin to the Official
Assignee of the Stock Exchange and there generated a consistent flow of work. Atkin’s practice grew and
according to The Times, when he took silk in 1906 he was probably the busiest junior
at the Bar. With the appointment to the Bench of Hamilton in 1909 and Scrutton in 1910,
Atkin dominated the commercial Bar. In retrospect, Atkin’s success at the Bar
and on the Bench seems inevitable. However, he came close to leaving the Bar. Professor Gutteridge’s obituary reported that in Atkin’s early years at the Bar ‘briefs
were few and far between and the outlook was black.’ The professor recalled an occasion on when he and Atkin were walking down a street in London and Atkin pointed out a building and
said: ‘I can never see that without thinking how lucky I have been!’ Then Atkin recounted that the building contained the office of a scholastic academy, and he told Gutteridge that a few years earlier he had walked into that office with despair in his heart to inquire about obtaining a mastership at a public school. So it would be well-advised to note how close the law came to losing a junior barrister who was to become a great judge. And we should think about and think about what we can do to keep bright and industrious junior barristers where they belong: at the Bar. Dick Atkin and Lizzie Hemmant were born twelve days apart and as toddlers they must have been each other’s company, here at North Quay. 20 years later they met at the Hemmant estate in Kent. Atkin was still struggling to establish himself at the Bar, and so their engagement lasted for five years. And they married in 1893. They had eight children: six girls and two
boys. One of Atkin’s daughters went on the stage and he was very proud of her. Tragically, the Atkin’s eldest son was killed in battle in France in 1917 at the age of twenty. On a happier note Sir Samuel Griffith,
attended the wedding of one of the Atkins’ other daughters. Lord Atkin and Lady Atkin enjoyed a
happy marriage until her death in 1939. Before the First World War Lizzie Atkin bought a car, the same model as used by London taxi, and she used it to go shopping. Her son reported quote “In later years she patronised
the Army and Navy Stores into which she would enter majestically leading her bulldog and
smoking her cigarette knowing confidently that none of the staff would think of reminding her that both dogs and cigarettes were forbidden in the stores”. Lewis likens Lizzie Hemmant to Atkin’s mother
and grandmother. He describes Lizzie Hemmant as ‘a girl and woman of strong, vivid character,
great warmth and the habit of outspoken opinions.’ Well, the Atkin’s acquired a home in Wales. In terms of his personal family life his daughter reported that he had
‘low-brow’ tastes. He went to the musical the ‘Lambeth Walk’ twelve times. He was a devout Christian and attended
church with his family every Sunday. His Christian faith
was a ‘strong constant in his life’. A local clergyman later described Atkin as a ‘low Church-man with a great love of the Prayer Book’, and reported that many of the villagers went to him with their troubles; he always found time, even on vacation, to talk to them’. As appears from many of his judicial decisions,
he considered that principled decisions that courts make should rest upon the judicial officer having an understanding of the conditions of life of ordinary people. He initiated the appointment as a magistrate
of a sheep farmer who had given expert evidence in a sheep stealing case. Atkin had presided as a Magistrate had thought
the farmer had given clear and fearless evidence. And much like the friendship that developed between
the fictional characters Darryl Kerrigan and Lawrie Hammil QC in The Castle, a friendship
developed between Atkin and the sheep farmer. Atkin’s daughter, Elizabeth, recalled that he didn’t enjoy his work in the Court of Appeal he felt that he was merely the intermediary between one Court and another. And his usual answer when asked by his family during his nine year period on the Court of Appeal about whether he had heard any interesting cases that day was ‘No, very dull’. As a Lord of Appeal in Ordinary, he would
come home and say that he thought he had won his ‘brothers’
over to his side or ‘so-and-so is still not convinced but he may be tomorrow’. All of his letters and judgments were hand written, he didn’t have a secretary. He spent every Saturday morning at the House of Lords working on judgments and took judgments away on vacation to complete them. He and Lady Atkin never travelled abroad. Atkin was heavily involved in the affairs,
of the Medico-Legal Society. He chaired a committee on criminal
responsibility of the insane. He was committed to improving legal education. He championed the education of law in universities
and the improvement of practical legal orientation. He didn’t have any political affiliations, that may explain why he never occupied the Woolsack. He’s been described as a ‘political agnostic’. But when he spoke in debates in the House of Lords, he spoke from the Liberal Benches. The six years that he was a King’s
Bench judge was said to have been the happiest years of his professional career. And he was regarded as one of the greatest criminal judges of his generation, along with Scrutton. The motto ‘tough on crime; tough on the causes of the crime’ may have been coined for Lord Atkin. As I said in 1919, he was appointed to the Court of Appeal, he typically sat with his former pupil master, Lord Justice Scrutton and Lord Justice Bankes. Atkin had a life-long admiration for Scrutton but despite this, he disagreed with Scrutton about the disposition of a number of appeals. And Lord Denning said that Scrutton and Atkin ‘fought for
the body of Bankes’. As a judge he was said to have had a good temperament, courteous and incisive in his questioning. One barrister who appeared in front of him said: ‘He listened to argument with generous indulgence; his interjections were few and in tone almost apologetic; but his observations were as pointed
as a needle.’ Other reports suggest that if he’d
made up his mind, it was hard, if not impossible, to persuade him to change it, and as the intelligence from his daughter reported when he came home, he said that his task the next day was to persuade the other judges over to his point of view. Lord Denning recalled: ‘If
he was on your side, you had no need to worry – he would put the points in your favour.
If he was against you, you could never get him around.’ In the area of commercial law Atkin understood the commercial community and he had a huge practice at the Commercial
Bar. And he understood the importance of certainty in contract law, and in the law generally. He was dismissive of legal fictions, and in United Australia v Barclays Bank said, when these ghosts of the past stand in the path of justice clanking their mediaeval chains the proper course for the judge is to pass through them undeterred. Throughout his judicial career, and not only
in the area of commercial law, Atkin sought to determine legal disputes in a manner which accorded with common sense, and he avoided complex refinements. His biographer refers to his ‘preoccupation with general
principles’. And he attempted to dispose of cases on the basis of an understanding of the life of ordinary people. In one case, Everett’s case the plaintiff launched civil action after being falsely and without adequate justification, certified as insane. Atkin held, in dissent, that the defendants owed a duty of care and his passion and empathy were obvious, as was his marvelous writing style, who’s dissenting judgment was referred to be Lord Haldane as a ‘powerful piece of reasoning displaying anxiety to ‘guard against a possible
miscarriage of justice.’ Atkin said that the poor and the weak should not quote ‘suffer the unspeakable torment of having their sanity
condemned and their liberty restricted’. The competing view, by Lord Scrutton, was as important as that was, it was also important that those who have to make these decisions aren’t deterred by the threat of legal action and be deterred from certify someone because of the threat of an action. And one hears here the echo of modern day debates about the cost and consequences of defensive
medicine. In a number of cases and I deal with them in the paper in Parliamentary debates Atkin displayed and understanding of ordinary people’s lives. In debates on the Marriage Bill, he supported the introduction of cruelty and desertion as a ground of divorce. He was appreciative of the tragedy of a Court of Appeal decision involving the poor laws and splitting up a family. And in workplace injury cases he helped erode the pernicious doctrine of common employment and in Caswell’s case he combined an understanding of the conditions of work in mines, with an ability to conceptualise the doctrine of contributory
negligence, he saw it tied to issues of causation which value judgments are to be made. Both Lord Atkin and
Lord Wright carefully analysed the evidence and concluded that contributory negligence, which then was complete defence wasn’t established. But Lord Atkin went further and provided an insightful analysis of contributory negligence and brought to bear his analytical skills, and principles
applied in other jurisdictions, including Admiralty. As a final note from my previous Galapagos Island area of practice, defamation law in Sim v Stretch he gave a statement of what it means to make a defamatory statement. And that definition has been often sighted since. Professor Brown, reports that the author of Gatley on Libel and Slander, Dr J C C Gatley, was found dead in his chambers in 1936. And open on the desk was The Times law page reporting Lord Atkin’s speech in Sim v Stretch. So, I’m not sure whether we can blame Lord Atkin for Dr Gatley’s death, but there is a circumstantial case there, I think. Turning to Donoghue v Stevenson, the case is familiar to many. Didn’t go to trial. It was a point of law about whether the facts alleged by Mrs Donoghue gave rise to a duty of care. Briefly, the background to this is that the tort of negligence had developed under the influence of Roman law and natural lawyers. The influence of natural lawyers was that there had to be an antecedent duty of care that was breached. In England there were separate functions for judge and jury and the question of whether a duty of care
existed was for the judge to decide. And so if lawyers could frame the issue of duty of care as a legal issue, it was for the judge to decide and that had the tendency to load contentious issues onto the judge to decide and for judges to control the scope of negligence. So there is an enormous body of precedent and the result was a fragmentation of the law of negligence where in Continental Europe there were general principles. At about the time that Atkin went up to Oxford, the first edition of Beven on Negligence appeared and it consisted of 700 pages. In 1889 another author had stated: ‘The Law in regard to Negligence is the most uncultivated part of the “wilderness of single instances” of which our law consists.’ And by the time Donoghue v Stevenson was argued, the fourth edition of Beven on Negligence, was 1570 pages with a table of cases consisting of 175 pages. In the area of product liability there were some exceptional cases in which it had been recognised that a manufacturer owed a duty of care to an ultimate consumer. However the 19th Century case law didn’t evidently recognise a duty of care in the circumstances that Mrs Donoghue alleged. Her case hardly be said to have had good prospects. A few weeks before the events that she alleged. The court in Scotland had rejected a similar claim. She succeeded first instance, failed on appeal, obtained leave to appeal and had the status of a pauper. The case was heard, it was reserved for quite a while and Mrs Donoghue’s appeal succeeded by three-to-two. Lords Atkin, Thankerton and Macmillan constituted the majority, Lord Buckmaster and Tomlin dissented, and Professor Heuston referred to Lord Atkin
as the leader of quote ‘the Celtic majority’ unquote something you’d expect an Irish Professor to say. Lord Thankerton, Lord Macmillian were Scotish and of course Lord Atkin’s father was Irish. The dissenting speech of Lord Buckmaster was delivered first in time. He was sarcastically dismissive of cases that didn’t support his conclusions and one commentator has said that he seems to be moved by some extra legal concern. In any event, turning to Lord Atkin’s speech after framing the issue he observed that it was ‘remarkable how difficult it is to find in the English authorities statements of general application defining the relations between parties that give rise to the duty.’ Instead, the court had engaged on an elaborate classification. And after referring to some of these, he said, ‘Yet the duty which is common to all the cases where liability is established must logically be based upon some element common to the cases where it is found.’ So the search for principle preceded the analysis of precedent and at an early stage in the judgement he comments that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular
cases found in the books are but instances. And then he immediately formulates what has become known as the ‘neighbour principle’: which we see on the PowerPoint, I won’t read it. Lord Atkin wasn’t the first jurist to articulate the ‘neighbour principle’, In 1767 Lord Bathurst had stated that such a principle in his Introduction to the Law of Trials. But Lord Atkin’s grounding of the principle in the parable of the Good Samaritan was compelling. And as Profession Chamberlain has said, that literary and rhetorical features of the parable lend themselves to persuasive legal reasoning. Rather than looking for, authorities that supported the principle, Atkin said that he hadn’t found any that were against it. Having said that he then embarked upon a masterful analysis of the authorities. For example, he didn’t attempt to overrule Winterbottom v Wright. He chose the more subtle approach of agreeing with Lord Buckmaster that the case was correctly decided, but argued that the issue of law raised in Donoghue v Stevenson wasn’t raised in that case. After analysing the authorities, he turned and looked across the Atlantic and was comforted by the fact that Justice Cardozo in the ‘illuminating judgment’ in MacPherson v Buick Motor Company had reached the same conclusion. In his judgment Lord Atkin glides over the distinction between what the law is and what the law should be. He didn’t really explain why there must be such a general conception. And many would argue the common law doesn’t generate those governing principles. For example, Professor Brian Simpson has argued that: we must start by recognising what common sense suggests, which is that the common
law is more of a muddle than a system, and that it would be difficult to conceive of a
less systematic body of law. Despite this, Lord Atkin treated the categories of case on duty of care as reflective of some general principle. And he backed up that, conclusion by a beautiful hypothetical example concerning a product mixed with poison. And in a beautiful appeal to the province of law, he stated: I don’t think so ill of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilized society and the ordinary claims it makes upon its members as to deny a legal remedy where there is so obviously a social wrong. Others have commented about the lack of logic in Lord Atkin’s conclusion, that there must be a duty of care. And Professor MacCormick said well why can’t duties of care as a matter of logic simply crop up whenever they arise. And Justice Michael McHugh in 1998 in an, important paper on judicial method and logic and judicial reasoning noted that logic only takes one so far in deciding novel cases. Justice McHugh explained that Lord Buckmaster’s dissent showed that the cases were ‘logically explicable’ without a general principle of negligence. Lord Atkin’s, decision wasn’t compelled by logic Justice McHugh stated that Lord Atkin’s decision was
based on what he thought justice required, not logical compulsion. It was his sense of
justice and not logic that gave rise to the general principle that has dominated the law of negligence since 1932. The contrast in styles
between Atkin and Buckmaster is noteworthy. Lord Denning unfairly described Buckmaster as timid and other people said that was quite wrong. Sir Frederick Pollock, said that Buckmaster and Lord Tomlin were the last people that you would accuse of being timid. But Sir Frederick Pollock insightfully said of the two dissenting judge part of their opinions read as if they had forgotten that they were judging in a Court of last resort. Clearly, both Lord Buckmaster and Lord Atkin had a commitment to the integrity of the law. Lord Buckmaster saw himself as being bound by precedent to reject Mrs Donoghue’s claim. Lord Atkin saw no
precedent that required him to do so and he was able to discern from categories of cases, a governing principle. For Atkin, principle first precedent second, for Buckmaster precedent first. One might say finally. So let me summarise Atkin’s achievement in Donoghue v Stevenson. The law of negligence had been fragmented. In the 20th century there was a movement back towards an unifying principle and Donoghue v Stevenson can be regarded as the turning point. Chief Justice Gleeson referred to Lord Atkin’s brilliant achievement. And as I’ve said, his judgment is a great work of legal prose. Well, a view 100 years after it was decided, Donoghue v Stevenson is obviously a landmark in the law. And a few years ago, in the special edition to mark 135 years of law reporting, The Law Reports, the Incorporated Council of Law Reporting produced their ‘Top 10′ and Donoghue v Stevenson was in it it was a chronological list, I don’t know whether it rated number one, many would. Of course the case attracted immediate attention in 1933 from legal commentators. However as powerful as Lord Atkin’s, judgment was at the time and as influential as his articulation of the neighbour principle has been over the last century, his speech was only one of three and contemporary commentators adopted the more minimalist approach of Lords Thankerton and Lord Macmillan. And it was Lord Macmillan’s approach that found favour with textbook writers, many
judges including the Privy Council in Grant’s case. Dr Grant’s appeal to the Privy Council
was upheld, but without reference to the neighbour prinicple. Lord Atkin’s biographer wrote of Donoghue v Stevenson quote, “It’s true nature was perhaps not fully understood even by the profession until Lord Devlin’s
speech in 1963 in the Hedley Byrne Case’. And Lord Atkin’s judgment received a very frosty reception from Lord Justice Scrutton in 1933. But Lord Aktin’s speech in Donoghue v Stevenson, more general was more warmly received in the Commonwealth. In March 1933 Justice Herbert Vere Evatt of the High Court wrote to Atkin saying ‘the Snail case’ had aroused great interest at the Bar and the university law schools. And Evatt wrote, on all sides there is profound satisfaction that, in substance, your judgment and the opinion of Justice Cardozo of the U.S.A. coincide, and that the common law is again
shown to be capable of meeting modern conditions of industrialisation, and of striking
through forms of legal separateness to reality. Lord Atkin’s speech wasn’t forgotten in Australia. It was influential in the 1962 decision of Voli v Inglewood Shire Council. And it’s perhaps fitting that his principle should find fertile ground in the land of his birth. Returning to his life, as I said, Lady Atkin died in 1939. He wrote to Evatt in 1940 about how he had a solitary life, but his daughters were caring for him. They discussed recent cases, it’s intriging that Final Court of Appeal judges talk about what they’re going to do to the Court of Appeal below them. And he wrote to Evatt, and proudly reported that, about a particular case, we’ve not given our reasons yet, but that decision is going to receive a good hard knock. He complimented Evatt on his literary efforts. And wrote, how little the public realise how dependent they are for their happiness on an impartial
administration of justice. I have often thought it is like oxygen in the air: they know and care nothing about it until it is withdrawn. The letter concluded: ‘We hear no war news that you do not get: and that seems to me precious little. However we are determined to put an end to the gangsters as you all are.’ In May 1940 Atkin spoke at Gray’s Inn at a reception for refugee lawyers, including Dr Ernst Wolff, who’d been President of the Berlin Bar and the General Council of the German Bar before
Hitler’s rise to power. He later became President of the Supreme Court for the British Zone in Germany. After the reception Dr Wolff wrote to Lord Atkin that his quote ‘kind words of sympathy for our situation went to our hearts’ unquote. Wolff wrote about Britain’s fight against the ‘conspiracy of piracy’ that the German lawyers had suffered, and hoped that after Nazi Germany was destroyed ‘law can prevail again’. I turn to Liversidge v Anderson which was a defining point in Atkin’s judicial career. It was delivered in November 1941, a few weeks before his 74th birthday. And it stands, as one of the most significant of all the
constitutional speeches from the House of Lords in hundred years. Briefly the British Parliament passed emergency legislation, a regulation was passed which permitted the Secretary of State to order the detention of an individual, quote, ‘If the Secretary of State has
reasonable grounds to believe’, and so the provision went. About 15,000 people were detained including Mr Jack Perlzweig who during his time in Brixton Prison changed his name to Robert Liversidge and he sued for false imprisonment. The case in first instance went on the issue of onus. And up to that time the government accepted that the words ‘reasonable cause’ imported an objective test. But when the parallel case called Greene went to the Court of Appeal, the government argued for the first time that, the Home Secretary only had to have, only had to subjectively believe that he had reasonable cause it wasn’t a objective test. Well, that argument was accepted by four of the five Law Lords for reasons I set out in the paper. Atkin was a sole dissentient and he pointed to ‘the
plain and natural meaning of the words’, and gave many examples of where the same or similar words had been held to import an objective test. As Lewis notes, ‘The weight of examples was
and was intended to be crushing.’ There was no ambiguity in the language of Regulation 18B. Atkin then proceeded to demolish the arguments of those who favoured a subjective interpretation. He said that such a matter could be determined by a judge and having demolished those arguments he continued with his famous dissent, I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive. And then there was a beautiful passage, which we have in the PowerPoint. And famously he wrote, of the judges, their function is to give words their natural meaning, in this
country, amid the clash of arms, the laws are not silent. They may be changed, but they
speak the same language in war as in peace. And he went on to make a fundamental statement about the role of courts in protecting liberty. And he said I protest even if I do it alone against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister. After recapitulating his arguments and referring to the non-natural construction favoured by his colleagues Lord Atkin stated, I know of only one authority which might justify the suggested method of construction. And he then quoted from Alice in Wonderland. Well, views differ about the inclusion of the paragraphs, which ridiculed his colleagues. Many years after the event, Professor
Heuston described them as ‘passionate, almost wild, rhetoric’. And he referred to ‘an
explosion’ in Lord Atkin’s mind. In his review of the style of judgments in the House of Lords between 1876 and 2009, Sir Louis Blom-Cooper writes that Atkin’s language in dissent, quote, ‘reflected a rare departure from the convention that disapproval among judicial colleagues should be couched in decorous language’. A few days before the speech was to be delivered, Lord Simon, who hadn’t sat on the appeal, but had access to the, copies of the speeches that were to be delivered, wrote to Atkin about his inclusion of the Alice in Wonderland reference. The unintended offence, as Simon saw it, was that the literary allusion ‘may be regarded as wounding’ to Atkin’s fellow judges who would take the view that he was satirising, and at worst ridiculing, their efforts. Lord Simon wrote,
that quote ‘neither the dignity of the House, nor the collaboration of colleagues, nor the force of your
reasoning, would suffer from the omission’ unquote. Atkin declined and wrote to Simon that he felt strongly about the matter, quote ‘I have not the slightest intent to ridicule them, nor I think does the passage you mention ridicule them. But I did mean to hit the proposed construction as hard as I could and to
ridicule the method by which it is reached. I consider that I have destroyed it on every
legal ground: and it seems to me fair to conclude with a dose of ridicule. Simon responded politely that he wished Atkin had seen his way to ‘omit the jibe’. Lord Maugham, the senior judge, on the appeal wasn’t present through an administrative problem when the speeches were delivered. And he was naturally stung by Atkin’s words and he took the extraordinary step of writing a letter to editor of The Times, which ostensibly to defend counsel, who had been accused by Atkin of advancing arguments that might have been addressed in the time of
Charles I. Of course Maugham was also defending himself. Atkin maintained a dignified silence, in the face of Maugham’s letter. Maugham himself came under attack in newspapers that actually supported the outcome, of the appeal. And there was a question on notice in the House of Lords about the proprietary of Maugham writing his letter to The Times. Atkin was cold shouldered by his judicial colleagues Lord Wright, who had been a pupil in Scrutton’s chambers along with Atkin and a family friend, cold shouldered Atkin and his daughter. Atkin was no doubt correct in his interpretation, his interpretation had been vindicated as early as 1951. The case was being distinguished by the House of Lords. In 1964 Lord Reid referred to the peculiar
decision and the majority view in Liversidge v Anderson was put to the sword by Lord Diplock in 1980. Who was joined by the other Law Lords in saying that Lord Atkin’s dissent was quite correct. Now, while Atkin’s interpretation is being vindicated, the Alice in Wonderland paragraph was really unnecessarily provocative, and destructive of the collegiality which is part of the proper functioning of appellate courts. Lord Bingham, writing extra judicially as Senior Law Lord, was critical of Lord Simon’s attempt to have Atkin remove the offensive passage. However, in my view Lord Simon was entitled, as a senior judicial colleague of Lord Atkin, to suggest that the offending and satirical passage was unnecessarily wounding to Atkin’s judicial colleagues, and that
the force of Atkin’s reasoning wouldn’t suffer from their omission. Suggestions from judicial
colleagues to revise draft judgments, especially from judges who did not sit on the case in question, should of course be exceptional, lest senior judges interfere with the essential independence of other judges. But the wounding words of Lord Atkin made Liversidge an exceptional case for a constructive
suggestion about a point of style, not of substance, by someone in Lord Simon’s position. Lord Simon
didn’t seek to alter the result of the case or even the substance of Lord Atkin’s proposed speech. He wrote a polite note to Atkin in the interests of judicial collaboration and collegiality. One of the targets of Atkin’s ridicule, Lord Wright in 1944, put the matter in context. He wrote that Lord Atkin’s dissent showed quote, ‘his habitual courage and independence’ unquote. Lord Wright
concluded the obituary as follows: ‘the value of his work will not be found to lie in particular judgments valuable and
important as they are but in the animating motive force which inspired them. His service to the future of English law will be large and lasting’ unquote. Lord Wright was correct. Lord Atkin’s statement of constitutional
principle, has influenced generations of judges and lawyers. His decision in Liversidge v Anderson now reached a general audience in the in the form of an acclaimed play, which was performed in England this year to critically acclaim, called No Free Man. And as we see from the photo above the play discloses some troubling trade secerts about what judges, some judges wear when they’re writing judgments. And it also discloses how kind the families of judges are and particularly daughters in testing, their parent’s feverish conditions when writing judgments. In any event, the dissent, has been regarded as ‘one of the greatest constitutional law judgments
ever delivered.’ And I won’t take the time to read, extraordinary tribute to it by, Lord Bingham. I won’t read it in full but, he said, we’re entitled to be proud that
even in that extreme national emergency there was one voice, eloquent and courageous, which asserted older, nobler, more enduring values: the right of the individual against
the state; the duty to govern in accordance with the law; the role of the courts as guarantor of legality and individual right; the priceless gift, subject only to constraints by
law established, of individual freedom. And things were grim in late 1941 when Atkin delivered that dissent. The Balkans and Crete had been overrun. The British summer offensive in North Africa had been rebuffed. The Japanese menaced the Malayan Peninsular and Singapore. The attack on Pearl Harbour had yet to happen so the United State were not in the war. And so at such a time, Lord Atkin had the courage to be the sole dissentient and to resist arguments, which in times of emergency
would appeal naturally enough. And Justice Keane at the unveiling of the plaque to Lord Atkin in 2012, described Lord Atkin’s speech as quote ‘a ringing blow for liberty and equality under the rule of law. And perhaps most importantly for those
of us who speak the language of Shakespeare, for the integrity of the English language itself.’ Well, finally I want to turn to the honorary Australian. As I said, Atkin served as Australia’s representative on the War Crimes Commission. The Lord Chancellor at the time Lord Simon tried to talk him out of accepting that position. Saying, it was like, taking a 91-ton gun to a relatively small task. But Atkin undeterred participated and attended 12 meetings of the Commission, before his illness
made it impossible for him to continue. Some, like Professor Goodhart, publicly advocated two kinds of responses to war crimes. Those that constituted ordinary crimes would be punished under established criminal laws in individual
states. Others that were described as acts of policy, which were not governed by law, might be
punished by a political act, just as Napoleon Bonaparte had been punished by his victors by
imprisonment on St Helena. Atkin rejected that approach and in a strongly-worded letter to The Times in late 1943. He said punishment shouldn’t depend on the provisions of the penal laws of each invaded State, since they provided no remedy for crimes committed in the country of the enemy, which was possibly
lawful by the law of that country. And Atkin’s opinion, as we see part of it there, was that the crimes of which some of the barbarian enemy have been guilty transcend all domestic laws. They are offences against the conscience of civilized humanity. What is
desired is not revenge, but a vindication of civilization to be achieved by imposing retribution on the criminals so as to ensure so far as possible that in no war in the future
shall like horrors be perpetrated. And Atkin said if possible punish those crimes by the law of the land on which they were committed but that the allies should retain the power to decide, that these, crimes against humanity would be tried in ad hoc international tribunals. And in the paper I’ve given other references to Atkin’s argument that one just shouldn’t be concerned about crimes against British and American nationals and he thought that the public supported his view that the barbarians should be punished for crimes against, for example, the Jews in Europe. Lord Atkin died in June 1944, aged seventy-six. Few English judges, or indeed
any judges, enjoy such an enduring reputation. One hundred and fifty years after his birth,
plaques are unveiled in his honour. Jurists including great Australian jurists like Sir Gerry Brennan make pilgrimages to a town named Paisley where Mrs Donoghue may or may not have swallowed a decomposed snail. In 2015 plays are performed to critically acclaim about one of his finest judgments. One might say that we’ll not see the likes of Lord Atkin in our lifetime. But that wouldn’t be right. We have. Even in the lifetime of the youngest law student in this audience we’ve seen great jurists in this country and in others display the qualities which Lord Atkin exhibited. I need not mention any Australian judges. we know their names. Since this is a lecture
about English judges, I’ll mention just a few great modern English judges. Lord Bingham
displayed the masterful grasp of principle, knowledge of legal history and sense of justice to match that of Lord Atkin. He also shared Lord Atkin’s ability to write beautiful prose. Lord Hoffmann exerted
a similar intellectual force to that which Lord Atkin exerted during a long career in the English
judiciary. Lord Bingham and Lord Hoffmann, in separate commanding judgments in the Bellmarsh
cases, adhered to important constitution principles about the rule of law in times of war and crisis. And Lord Steyn, in
his 2003 F A Mann lecture, about Guantanamo Bay the legal black hole articulated the need for the rule of law to apply to detainees. In arguing
that alleged war criminals should be brought to justice rather than be exiled on remote islands, Lord Steyn displayed same internationalist sentiments which Lord Atkin did in 1944. So it is not as if Lord Atkin does not have his modern-day counterparts. The point surely is that
modern-day counterparts like Lord Bingham, Lord Hoffmann and Lord Steyn had Lord Atkin
as an example to follow. The early demise of Robert Atkin was a tragedy. However, his demise meant that Lord Atkin was to grow
up in the United Kingdom and became a great English judge, rather than a great Australian. Dick Atkin honoured the dying wishes of his father to be ‘truthful and honourable’, and to grow up a nice, unaffected gentleman without concern for status. He benefitted from the love and
nurturing of powerful women: his mother, his grandmother, his wife. By industry and
intelligence, he made good on the opportunities that were presented to him. And he was fortunate to enjoy the friendship and support of William Hemmant. Today, as we pay tribute to Lord Atkin, there are disadvantaged infants and young people in our communities with the
same potential for greatness as Dick Atkin, but who probably will not have the good fortune to have a modern-day William Hemmant to smooth their path to greatness. We describe Lord Atkin as a great English judge, although he described himself as a
Welshman. Humanity and compassion, coupled with an uncompromising spirit characterised his
life and are his legacy. He searched for principles that he expected to be embodied in the law. His view was that the law should reflect many, but not all, public sentiments about what is moral in our
dealings with others. In declaring and in developing the law, he was motivated by a desire to achieve justice. He showed an understanding of the circumstances of ordinary citizens, and the conditions in which they lived and
worked. in developing the law, he was a progressive in the sense that he believed in the potential of
law to improve society. Atkin toiled for decades as a master craftsman of law and language. In failing health, he stood alone in Liversidge v Anderson in defence of liberty and the
rule of law. And as his final days as Australia’s representative, he argued that war criminals should be brought to justice. The victims of crimes against humanity were owed nothing less. The parable of the Good Samaritan was not simply a clever literary device that Atkin deployed to
establish a point of law. It was a principle by which he lived his life. It was a principle that informed value judgments that he was required to make in administering justice
according to law. It was a principle which in 1940 prompted him to welcome victims of tyranny to London. In extending the hand of friendship to refugees of a different ethnicity and religion to his own, Dick Atkin was not writing about being a good samaritan. He was being a good samaritan. (APPLAUSE) Thank you. Justice Applegarth has prepared a written paper which will be published and I’ve seen it, at least, I’ve seen how thick it is. Tonight he has really just cherry picked from the paper but he’s done so in a way which has woven the strands of Justice Aktin’s personal life with the strands of his jurisprudence. Illuminating and eloquent if I may say so to the Judge. That causes me to do two things. One is to look for the customary parcel. (APPLAUSE) And the second you have anticipated, which is to formally thank the judge We have been really fortunate by the speakers in this series of lectures. This is as I said the fifth lecture. All of the speakers have put in an enormous intellectual effort and great labour in presenting the lectures and tonight again maintained the standard. The sixth lecture will be on Thursday 19 November, Justice Douglas on Lord Denning. The seventh lecture will be on Thursday 3 December, Justice Edelman on Lord Bingham. Can I just once more ask you to thank Justice Applegarth tonight in the usual way. (APPLAUSE) After I hand over to the Judge for one minute can I say that after he finishes having the final word, you will all be invited to refreshments outside. I won’t keep you from the drinks, my final word is I neglected to thank my associate Ms Rebekah Oldfield who has not only been powering the PowerPoints tonight but has helped me with proof reading a judgment across time zones. I am deeply grateful to her conscientiousness work and she will continue to proof read the judgment in the days ahead. Thank you very much Rebekah. (APPLAUSE)

Suppressing the Vote | Disenfranchisement


Voting is a right in America. Much like you have the right to free speech
and the right to a firearm, you also have the right to vote. Though it used to be viewed more as a privilege
and we still kind of think of it that way. If you try to introduce any kind of rule that
maybe curtails a few people from voting, aside from those few people affected, most other
people don’t seem to care. They might even be in favor of those rules. The only way to stop these rules from taking
effect is to vote. So please, vote… assuming you still can. This video is brought to you by Skillshare. When America was founded, or rather, a few
years later when the Constitution went into effect, only white male protestants over the
age of 21, who owned a not insignificant amount of land were allowed to vote. When George Washington was elected in 1789,
only 6% of the US population had the right to vote. Much like the definition of a citizen, the
right to vote was both expanded and restricted over the years. By the 1840s, the property ownership requirement
had disappeared. Then in 1870, after the bloodiest war in American
history, the white requirement was removed by the 15th Amendment, allowing black males
the right to vote. We had some issues with letting Asians and
Native Americans vote, but that was cleared up later. In 1920, the 19th Amendment granted women
the right to vote federally, certain states had allowed it previously. And lastly, in 1971, the 26th Amendment was
passed, lowering the voting age to 18. So that’s it, as long as you’re a US citizen
over the age of eighteen, you’re allowed to vote, and now, you know better…
… wait. Yeah, if only it were that simple. States decide who gets to vote, so aside from
those few amendments I mentioned, we don’t have any uniform federal rules. So every time the federal government extended
the right to vote to a group, new state rules were put in place to limit how many people
in that group could actually vote. Like after the Mexican-American War. When we annexed all that new territory with
all those new people, America had a problem, because at the time, Mexican people were still
classified as white. So English literacy became a requirement. And it remained a requirement that was rather
famously used to deny black people the right to vote for another hundred years under Jim
Crow. Along with poll taxes, which meant you had
to pay a fee every time you voted, which were eliminated by the 24th Amendment
It’s a common misconception that felony disenfranchisement was started during Reconstruction
or Jim Crow in order to suppress the African-American vote. Felony disenfranchisement means that you lose
the ability to vote if you’ve committed a certain level of crime. The idea is that you broke the social contract,
so you shouldn’t be able to participate in decisions that help shape that society
or its rules. And you could argue that that makes sense
for a little while… but forever? Forever-ever? Forever-ever? We’ve actually had these rules since basically
the beginning. Kentucky was the first state to enact criminal
disenfranchisement in 1792, followed by Vermont in 1793, then Ohio, and Louisiana. By the time the Civil War came around, most
states, in the North and South, had some form of felony disenfranchisement. In fact, during Reconstruction, only one state
expanded felony disenfranchisement in order to stop black people from voting. Can you guess which one? It’s Alabama, I mean c’mon. Their constitution still has a rather long
list of people disqualified from voting, including: All idiots and insane persons – that’s
off to a great start. It should be noted that idiot was a medical
term back then, man that has not aged well. But here’s the list of crimes that disqualify
you. Those who shall be convicted of treason, murder,
arson, embezzlement, malfeasance in office, larceny, receiving stolen property, obtaining
property or money under false pretenses, perjury, subornation of perjury, robbery, assault with
intent to rob, burglary, forgery, bribery, assault and battery on the wife, bigamy, living
in adultery, sodomy, incest, rape, miscegenation- If you needed anymore proof that this was
racially motivated, here you go. Miscegenation is marrying outside of your
race, if a black man married a white woman, neither of them were allowed to vote. That section of the constitution wraps up
with a blanket statement. Or any crime punishable by imprisonment in
the penitentiary, or of any infamous crime or crime involving moral turpitude. An “infamous crime” is usually defined
as a felony. Many of the crimes on that list were retracted
over time, but the felony part has not. But felony disenfranchisement on the whole
is starting to disappear in the country as people start to realize that punishing someone
for life, well after their sentence, was a bit much. In Maine and Vermont, there is no disenfranchisement,
people are allowed to vote while in prison. These states allow you to vote once you’re
out of prison and these states after probation or parole. These states allow you to vote after your
sentence, but only for first-time offenders or non-violent crimes, it varies by state. But in these four states, no felon of any
kind ever gets to vote, ever. Forever ever? Yes. Well, unless the governor personally restores
your rights… and then the next governor doesn’t immediately reverse that decision. Florida has the chance to change their color
on that map in the election on Tuesday. But as felony disenfranchisement has been
disappearing, a new form of voter suppression seems to be emerging. When you register to vote, you have to prove
who you are and where you live, but some states are now requiring a separate ID when you actually
vote. Voter ID laws are one of those things that
just feels like it makes sense, but the facts don’t seem to line up with those feelings. Another example of this would be drug testing
people on welfare, it costs way more than it saves. A common argument for Voter ID is that you
need one for all sorts of other things, you can barely get by without one, so it makes
sense that you should have to prove who you are before you go vote. On the surface, that sounds reasonable, which
is probably why a majority of Americans support the idea. Except you don’t really need an ID for all
sorts of other things… unless you’re a teenager. I couldn’t tell you the last time I had
to show anyone my ID. Not to get into an R-rated movie, or buy spray
paint, or even alcohol. If I lived in a city that had decent public
transportation, I wouldn’t need an ID at all. Well, you need one to work, right? No, not really, no. When you got hired, your HR person gave you
this list – and you probably just handed over your driver’s license and social security
card. But there’s about a dozen other options
available. And here’s the kicker, those dozen other
options, depending on the state, aren’t valid Voter IDs. 11% of American citizens
do not have a valid Voter ID. I have an ID and if you thought that me saying
that I don’t remember the last time I had to show it to anyone is far-fetched, 35 million
Americans don’t have an ID and seem to get along just fine. Except when it comes to this new rule about
voting. If you lost your driver’s license, it would
be a pain, you’d have to take a few hours off of work, go to the DMV, sit there for
a few hours, pay a fee, and then wait six to eight weeks for it to arrive in the mail,
it would be a whole thing. But you can justify it because you need it
to drive. But if you take the bus to work every day
and everything is fine, but now you find out you have to do all of that stuff in order
to go vote, when you didn’t two years ago… You’re probably just not going to vote. Voter ID laws vary by state, but there are
currently seventeen states with rather strict Voter ID laws. The usual reasoning behind these laws is to
stop voter fraud and we’ve been told a lot in the last few years that voter fraud is
a big problem. And the integrity of our ballot box is paramount. I’m not going to address the claim that
millions of illegal immigrants are voting because, no they aren’t, that’s ridiculous. But in most of the states that either have
passed or are trying to pass Voter ID laws, someone will claim that hundreds of dead people
are voting. An analysis of recent elections in the state,
ready for this, shows that 953 dead people voted. After the investigation was complete, they
found that only five ballots couldn’t be accounted for of the 1.3 million votes that
were cast. But using that pretense, South Carolina still
passed Voter ID laws. Voter ID laws really only stop voter impersonation,
that is, you showing up at the polls and claiming to be someone you’re not and casting a vote. Between 2000 to 2014, there have only been
31 cases of that happening in the entire United States. Again, using voter fraud as a pretense, Texas
passed one of the strictest Voter ID laws in the country, disenfranchising over 600,000
people. Between 2002 and 2014, two people were convicted
of voter fraud in Texas. Imagine for a moment, that over the course
of 12 years, two people committed a crime with an AR15, and as a result, the state decided
to take away 600,000 AR15s from people who did nothing wrong. Not permanently, don’t worry, you can get
it back. You just need to take time off work, go to
the state ID office, wait for a few hours, pay a small fee, and wait a few weeks for
it to come in the mail. This isn’t that much of a stretch, voting
is a right, just as much as owning a firearm. Texas has one of the most interesting and
strictest Voter ID laws in the country. The issue isn’t that you need and ID, it’s
which IDs count. Most people have some form of ID, to work
or go to school or whatever, but those don’t count in Texas. Wisconsin allows school IDs, which makes sense,
it’s a state-run government institution. But Texas doesn’t, you know what does count? A Concealed Carry Permit. I can’t imagine any difference between people
who carry CCLs and people who carry school IDs… huh. And here’s where we get to talk about discrimination. Voter ID laws are often described as useless,
since it solves a problem that isn’t really a problem, but also racist, which usually
makes people defensive and use some of the arguments that I’ve already mentioned. Again, the problem isn’t that you need an
ID, it’s which IDs count as valid Voter IDs. As I said before, 11% of all Americans do
not have a valid Voter ID, only 8% of white Americans don’t have one, while 25% of African-Americans
don’t have one. These laws disproportionately affect poor
people, who also tend to be minorities. Anyone has the legal ability to go get a state-issued
ID, provided they have the necessary paperwork like their original birth certificate or proof
of name change. But not everyone has the financial ability
to do so. Even if the ID itself was free, if you have
to take off work for several hours to get an ID, when you didn’t need one to get to
work or anything else, that’s a cost that you might not be willing to pay in order to
go vote. Which is why some people claim that it’s
effectively a new form of a poll tax. It’s an unnecessary barrier to voting that
didn’t exist before and doesn’t really solve any problem. Using a fake ID to vote will be just as easy
as using one to buy alcohol, it won’t stop the small amount of voter fraud that exists. But it does stop minorities from voting. Let’s take a look at North Carolina, you’ll
notice that it doesn’t currently have any Voter ID laws, because it was struck down
by the courts. Although the new provisions target African
Americans with almost surgical precision, they constitute inapt remedies for the problems
assertedly justifying them and, in fact, impose cures for problems that don’t exist. The North Carolina legislature pulled racial
voting data and crafted the law around that to purposefully disenfranchise African American
voters with… what did they call it? Surgical precision. With race data in hand, the legislature amended
the bill to exclude many of the alternative photo IDs used by African Americans. As amended, the bill retained only the kinds
of IDs that white North Carolinians were more likely to possess. If you needed anymore proof that Voter ID
is discriminatory, that should do it, it’s not that you need an ID, it’s which ones
count. Why do you think Texas allows CCLs but not
school IDs? But that’s not all they did, they discovered
that a lot of African American voters used same-day registration, so they got rid of
that. They also cut early voting from seventeen
days down to just ten, because that racial data indicated that a lot of African American
voters tended to vote early during the first seven days. Which eliminated a “Souls to the Polls”
day, when churches would bus people to go vote, do I need to tell you who used that? Likewise, in every state that has Voter ID
laws, you only need to present an ID if you vote in person, not if you do a mail-in or
absentee ballot. Guess who that favors… there’s a trend
here. When you register to vote, you have to identify
yourself and show some sort of proof-of-residence to establish your address. Usually a utility bill or a lease, seems simple
enough. But when North Dakota passed a law requiring
every registered voter to have a valid street address, they effectively disenfranchised
Native Americans who live on reservations. Because the Post Office still hasn’t gotten
around to giving them physical addresses. Even if you have an address, you’re registered
to vote, and you have a valid driver’s license or state-issued ID, you may go to the polls
and find out that you’ve been purged. Which is exactly what happened in Georgia
just a few weeks ago. Brian Kemp, who is running for governor and
also happens to be the current Secretary of State, purged almost a half a million people
from the voter rolls. 70% of which were African American. One of the justifications was that they didn’t
pass an “exact match” which requires all state documents to have the exact same spelling
and spacing of your full name and address. They used computers for this of course, nobody
is going to go through all those documents by hand. And they could have learned how to program
those computers by going to skl.sh/knowingbetter3. Skillshare is an online learning community
with classes taught by experts in their field. Learn C++ from Scratch in this set of courses,
and realize that missing a space in your address isn’t the only thing that can ruin your
life. Or learn how to make Java stop telling me
there’s an update available. Or choose from 20,000 other classes to purge
whatever lack of knowledge you have from your voter rolls. So head over to skl.sh/knowingbetter3 and
get 2 months of unlimited access to all of Skillshare’s courses for free, and you’ll
be supporting the channel when you do. He did this after the voter registration deadline,
so you won’t be able to fix this before Election Day. People were also purged for not voting in
previous elections. Most states have something like this, known
as use it or lose it, you’re removed from the voter rolls for not voting in the previous
general, midterm, or sometimes even off-year elections. Yes, there are off-year elections, there is
an election literally every November. Many of these laws have good sounding intentions
on their surface, but background negative consequences. They may not always have nefarious intent,
but they will have nefarious effect. It is your duty as an informed citizen to
think about these intents and consequences, especially if it effects people who may not
have the right to vote like you, because now, you know better. Go vote, if you heard nothing else during
this video, please, vote. I’d like to give a shout out to my newest
legendary patron, Darren, if you’d also like your name to fly across the screen too
fast for anyone to read it, head on over to patreon.com/knowingbetter. Don’t forget to register that subscribe
button, follow me on twitter and facebook, and join us on the subreddit.

For Undocumented Workers, It’s Not-so-Sweet Home Alabama


bjbjLULU JUDY WOODRUFF: Next, how workers,
farmers and businesses in Alabama are dealing with a new immigration law that’s attracting
national attention. NewsHour economics correspondent Paul Solman visited the state and filed this
story, part of his ongoing reporting on Making Sense of financial news. PAUL SOLMAN: A recent
rally of Latinos in Birmingham, Ala., protesting the country’s newest and toughest immigration
law. MAN: Someone said that no one chooses where to be born, but we can decide where
to live. PAUL SOLMAN: The law, known as HB 56, instructs police to detain any suspected
illegal immigrants; employers to check a worker’s immigration status with the government’s E-Verify
system. MAN: We must fight together until HB 56 is repealed. PAUL SOLMAN: Latino Alabamians
even walked off their jobs for a day in protest. Problem is, in rural Alabama, most appear
to be gone for good. MAN: Our father in heaven, we pray that those fruit and vegetable producers
might have that work force in place that is required to harvest the crops that they produce.
PAUL SOLMAN: At a meeting in Blount County, farmers were decrying a labor drought that’s
just gotten worse. JEREMY CALVERT, vegetable farmer: For us, it’s all about survival. That’s
just the bottom line, folks. Without a viable labor source, we cannot survive. PAUL SOLMAN:
When the law went into effect last month, immigrant farm workers fled the fields, hobbling
the harvest. DENNIS MAZE, poultry farmer: It’s emotional when you have got a crop and
you have got your livelihood and your home invested in that crop, and all of a sudden,
it’s rotting in the field. PAUL SOLMAN: But illegal immigrants cost taxpayers millions
in services and drive down wages in a state where nearly 10 percent are unemployed. So
says state Sen. Scott Beason, the law’s co-sponsor. He aims to protect jobs. SEN. SCOTT BEASON,
R-Ala.: The jobs that Alabama citizens can’t hold because they’re displaced by an illegal
worker. What is lost is the effect on American workers who have been phased out of the market.
PAUL SOLMAN: And not just in the fields, says Beason. He gets calls from construction contractors
who say they can’t compete with those hiring undocumented workers. Their complaint: SEN.
SCOTT BEASON: “I pay the insurance. I pay the workers compensation. I pay my men well,
and I’m going to go out of business,” which means that he’s at risk of losing everything
he has, all his employees are at risk of losing everything they have. And that’s part of the
story that’s never told. PAUL SOLMAN: On the street, Beason’s law seems to enjoy majority
support. MAN: I think it’s great, and I hope it gets enforced 100 percent to the extreme,
bar none. MAN: Oh, I’m all for it. I feel like what’s taking place in America right
now is a slow-moving invasion. Our country is being taken advantage of and being exploited.
PAUL SOLMAN: But the not-so-silent minority feels the law is stereotyping Alabama. MAN:
It’s xenophobic and it’s embarrassing that I live in this state, and that the whole country
talks about how backwards we are. PAUL SOLMAN: The farmers’ lament is more down-to-earth,
that the law will kill a $5.5 billion industry. J&J Farm is scrambling to pick the last of
its tomatoes with just half its normal work force. Eighty percent of Chad Smith’s crew
vanished when the bill became law. CHAD SMITH, tomato farmer: We still had 30 acres to pick,
and normally, those 30 acres, we could pick in two to three days. Well, it took us two
weeks to pick it. So by the time we was getting to the end of the field, our fruit was too
ripe. You had to throw it on the ground or leave it on the vine. PAUL SOLMAN: Smith may
not farm next year, when the law will apply all season, not just at the end of the harvest.
Scott Beason counters that legal Americans will work the fields instead, because employers
who’ve long exploited immigrants will have to hike the pay to lure them. SEN. SCOTT BEASON:
When you have a never-ending supply of laborers, cheap laborers, illegal laborers, it pushes
down wages for everybody. It pushes it down for the illegal laborers themselves and for
the citizens and legal immigrants who are competing for those jobs. It pushes all those
wages down. PAUL SOLMAN: But Keith Smith says the global market sets price, not farmers.
KEITH SMITH, sweet potato farmer: If we pay more, it eventually puts us out of business
is what’s going to happen. And you’re going to end up with food supplies, instead of coming
from America, they’re going to be coming from Mexico, from Chile, from Honduras, where they’re
not really regulated like we are. PAUL SOLMAN: Moreover, the farmers insist, most Americans
just can’t or won’t do farm work. When Smith’s immigrants fled, he hired locals to help harvest
his sweet potatoes. KEITH SMITH: I probably had three or four out of 50 that is really
worth anything, as far as being a good worker. It’s just a lot of it is, is, they’re not
skilled and they don’t know how to do what we’re doing, and they ain’t durable enough.
PAUL SOLMAN: They aren’t durable enough? KEITH SMITH: They ain’t durable enough, because
they’re not used to doing that kind of stuff. They come out and work two to three hours
and: Whew. I have had it. I can’t take this anymore. PAUL SOLMAN: Come the fall, some
40 workers usually pick Smith’s sweet potatoes. He’s down to 15, many of whom live nearby.
This was Melinda Martinez’s (ph) fourth day on the job. WOMAN: And I had to go home yesterday.
I couldn’t handle it. It’s backbreaking. PAUL SOLMAN: Martinez couldn’t keep pace. At 40
cents per bucket, she made $30 for the day, compared to $75 and up for a practiced picker.
WOMAN: It ain’t really worth the gas I’m spending to get here. PAUL SOLMAN: Jerry Spencer has
been ferrying unemployed workers from Birmingham, an hour away. Most last a day or two. JERRY
SPENCER, Grow Alabama: City workers are unprepared physically, mentally and in training. And
I’m seeing some good hardworking people coming out of the cities that may stick with it,
but — but you can bet, as the economy gets better, they find a job in the city, that’s
where they’re going. SEN. SCOTT BEASON: I just refuse to believe that Americans will
not or cannot do these jobs. PAUL SOLMAN: Give it time, says Scott Beason. SCOTT BEASON:
No one can walk out there the first day and pick tomatoes or squash or whatever the vegetable
of the day is. I understand that there’s going to be a short hiccup as people, you know,
reset how they’re doing business. But in the long run, Alabama will be better off. PAUL
SOLMAN: We relayed the message to Pastor Haskell Adamson (ph), also a farmer. MAN: By the time
we get them in shape to work, the farmers are all going to be broke. PAUL SOLMAN: And
what about the pickers? says Chad Smith. CHAD SMITH: Hiccup ain’t a way to call it. Bump
in the road ain’t a way to call it. You’re talking about people’s lives. PAUL SOLMAN:
Felipe Chacon, who won’t say if he’s legal or not, moved here from Mexico almost 30 years
ago, has been picking tomatoes ever since. FELIPE CHACON, tomato picker: It’s not just
go to the vine and get a tomato. You have got to know what you’re doing. And it takes
years, it takes years to learn how to do it. PAUL SOLMAN: Chacon is staying put, despite
a law spooking legals and illegals alike. FELIPE CHACON: I suffer for my people being
scared away. And it’s something that, really, it hurts, because I consider this my home.
PAUL SOLMAN: In the morning fog, Kim Haynes, driving his immigrants to work. Half his crew
stayed, but he says: KIM HAYNES, sweet potato farmer: I have to go pick them up and bring
them to work, and at the end of the day, I have to carry them back home, because even
the ones that are here legally are afraid to be on the highway. They’re afraid to drive
because they’re afraid they are going to get pulled over. You know, it’s racial profiling.
They know exactly who to pull over, because they can tell by looking at them. PAUL SOLMAN:
The worker on the right came from Mexico 14 years ago. He’s scared he will be deported
and cut off from his daughter, American-born and, thus, legal. MAN: It’s one of those things
that I am thinking every day, you know? PAUL SOLMAN: At a Hispanic rights center, we talked
to an undocumented worker who asked we conceal his identity. He quit his job at a Birmingham
restaurant and is now afraid to go outdoors. MAN: Because I don’t want to risk being separated
from my family over a traffic stop. You don’t feel safe anymore just going anywhere. PAUL
SOLMAN: Like many immigrant workers, he feels he’s being driven from his home. MAN: I think
everybody feels like we are just being discriminated against, completely, like not even being given
a chance to speak or say anything, just basically, like, we don’t want you here, want you out
of here. I think that people feel betrayed by the way this happened. PAUL SOLMAN: On
farms and at restaurants, undocumented workers may suffer, Scott Beason admits, but the law
is the law. SEN. SCOTT BEASON: I understand the situation that there are people in who
have come here illegally, and then they have had children, knowing they were here illegally.
Unfortunately, we can’t set state policy based on the situation that we didn’t cause. PAUL
SOLMAN: Look, he says, the law wasn’t intended to discriminate against anyone. SEN. SCOTT
BEASON: Any time you do something and you’re from Alabama, when somebody disagrees with
an issue, they’re going to automatically cry racism. MAN: It’s time for us, as brothers
and sisters, to stand up for justice and stand up for equality! (CHEERING AND APPLAUSE) PAUL
SOLMAN: At the
Birmingham rally, Latino and black civil rights leaders united in their opposition to the
law. Meanwhile, in farm country, small businesses pled their case to local politicians. WOMAN:
I’m asking, please, please, do not forget us. PAUL SOLMAN: A U.S. appeals judge delayed
parts of the law, but mostly it stands, driving away undocumented workers, but perhaps opening
up jobs for the unemployed. If they can’t or won’t do the job, though, agriculture in
Alabama could be headed the way of its immigrant work force. gd7, gd7, gd7, urn:schemas-microsoft-com:office:smarttags
place urn:schemas-microsoft-com:office:smarttags State urn:schemas-microsoft-com:office:smarttags
City urn:schemas-microsoft-com:office:smarttags PlaceName urn:schemas-microsoft-com:office:smarttags
PlaceType urn:schemas-microsoft-com:office:smarttags country-region JUDY WOODRUFF: Next, how workers,
farmers and businesses in Alabama are dealing with a new immigration law that’s attracting
national attention Normal Microsoft Office Word JUDY WOODRUFF: Next, how workers, farmers
and businesses in Alabama are dealing with a new immigration law that’s attracting national
attention Title Microsoft Office Word Document MSWordDoc Word.Document.8

Politics and Catholics with Archbishop Charles Chaput


Welcome to Uncommon Knowledge. I’m Peter Robinson.
Since 1997 the Roman Catholic Archbishop of Denver Colorado, the most Reverend Charles
J. Chaput grew up in Kansas, became a Franciscan in 1965 and was ordained to the priesthood
in 1970. He holds degrees from St. Fidelis College Catholic University and Capuchin College.
Archbishop Chaput is the author most recently of “Render Unto Caesar: Serving The Nation
By Living Our Catholic Beliefs And Political Life. I have read it so far, twice. Archbishop
Chaput, thank you for joining us. Thank you. Now when I have a guest who’s mentioned in
a front page article of the New York Times on the day of the taping, here we have an
abortion issue again dividing catholic votes, theological dispute felt in the swing city
the reporter David Kirk Patrick reports from Scranton, Pennsylvania. When I have a guest
whose mentioned in the front page story in the New York Times, we started by talking
about that article. Let me quote the Times article to you. “A struggle within the church
over just how catholic voters should think about abortion is once again flaring up just
as political partisans prepare an all-out battle for the votes of mass going Catholics.
Bishops around the country scolded House Speaker Nancy Pelosi of California for publically
contradicting the church’s teachings on abortion.” What did speaker Pelosi say that warranted
correction? Well, she said that the church’s teaching
about abortion wasn’t clear that present position of the church is one that became popular 50
years ago. I think she said it. Yes. And no one who knows the history of the churches
understanding of abortion really would say anything like that, from the very earliest
days in the immediate post apostolic writings of the Christian community. Abortion was condemned
and it has been the constant teaching of the church through all the centuries that abortion
as always, in all circumstances, wrong. Alright. By the way did you notice the use,
you read the— I read the article.
[ Simultaneous Talking ] On the airplane flying in from Denver. Did
you notice the use of the words scolded? Bishops scolded— Yes. Did you scold her? I don’t know. Actually I wrote an article,
a letter to the people of the archdiocese of Denver making sure that they didn’t misunderstand
the issue from what she said. She spoke publically on Meet The Press and I thought it was important
for us to say somethings so that people wouldn’t be misled by what she said. Alright. You know scandal is a deep concern in the
Christian community and that means leading someone to stumble and so when people who
are Catholics say this is a catholic position, when it’s not, is absolutely essential so
this is— She began I believe I can quote her exactly,
she began her answer to Tom Brokaw on Meet The Press by saying, “As an ardent Catholic.” That’s correct. And then she misrepresented church teachings. Yes. Although, it means heartfelt she may well
be heartfelt but she wasn’t educated on this issue. Alright. The Times’ article also notes that
the bishop of Scranton has forbidden Senator Joseph Biden from receiving communion in Scranton,
which is the senator’s hometown. Senator Biden’s position on abortion and I’m quoting Senator
Biden. “I’m prepared as a matter of faith to accept that life begins at conception but
for me to impose that judgment on others is inappropriate in a pluralistic society.” What’s
wrong with that position? Well, we’re always imposing opinions on people
to, who don’t necessary agree with us all law is an opinion being imposed on the broader
community whether it’s seatbelt laws or laws about speed limits. We are always telling
people what to do so it seemed like the nature of the government is to develop laws that
protect the safety of people and abortion, protecting unborn children from being aborted,
is a safety issue and it seems it can’t be kinds of inappropriate kinds stand the government. Well what — here’s what I’d like to ask you
to address. Senator Biden seems to be — I won’t even try to put words into his mouth.
Here would be an argument that one hears over and over again. Right. The prolife teaching of the Catholic Church
is a distinctively catholic teaching. And it should be biding upon catholics in their
private lives because the Catholic Church is after all a voluntary society. If you’re
a catholic you ought to be willing to abide by the rules of the church but it’s catholic.
It doesn’t have application to the wider society. Now how do you respond to that? Oh, we don’t respond even historically 35
years ago before Robert S. Wade [phonetic]. It was a common teaching of our country, through
its laws, that abortion was inappropriate and illegal act because it was seen as something
that was harmful to people. So for people to say that in this country, it was never
a catholic country, it’s not today, it’s the common belief of most cultures that abortion
is the taking of innocent life. So you’re drawing an extremely sharp line
there and saying it is your responsibility to speak out on behalf of the unborn. Not purely as a Catholic Bishop, Archbishop,
but as a concerned American on a question of human rights. This is not a specifically
catholic issue. I would say it’s not primarily a catholic
issue. I think, the issue, the place where we stand on abortion is supported by our faith
but it’s a human rights issue from the church’s perspective. Alright. Let me return to the Times articles.
Some Catholic’s in Scranton intend to vote for the prochoice candidate in this Presidential
election Senator Obama, explaining their position by I’m quoting the Times article here “repeating
liberal arguments about church doctrine broader than abortion, I think that one of the teachings
of God is to take care of the less fortunate”. The Times quote at Scranton Catholic are saying. Well what’s wrong with that? The church is
concerned about poverty, war. There’s a large basket of concerns for the catholic church
and why shouldn’t catholic voters say well, I’ll take those 2 out of 3, I cant find any
candidate who supports them all. Well they are all important. They are interesting,
anyway it says or not would be inappropriate but some issues are more foundational than
other issues and from the church’s perspective the life issue is the foundational wonders.
There’s no way that we can care for the poor children unless they’re children first, unless
they’re born and so even though the church is — by practice and by theology committed
to taking care of all the born and responding to all the needs that are articulated there,
there is a foundational issue when it comes to abortion. Alright. The Times discusses progressives
and conservatives within the church. These are the terms that are used and it also reports
that Senator John McCain, the prolife Republican candidate in this election of course, “met
with Archbishops Charles J. Chaput of Denver, that would be you, shortly— Right. Before the Democratic convention. Archbishop
Chaput has been an outspoken critic of Miss Pelosi and Mr. Biden.” Does that make you
a conservative? I don’t know, I don’t know that I’m outspoken
critic of either one of those two people, I simply spoke to the people of our church
telling them that what they said was inaccurate and I guess I could be described as an outspoken
critic of them but that wasn’t the intention the, the intention was to make sure that the
faith of the church is clearly understood by our people. Alright. Segment 2. What Vatican II had brought?
You spend time in this marvelous book Render Unto Caesar arguing that the second Vatican
council which took place in the early 1960s— Right. Was one of the great graces of God to the
Catholic Church in our time. The primary grace of God to the Catholic Church
in the 20th century. Oh, alright, you firming it up. Let me —
here’s from an article called Party Faithful, recent article by Peter Boyer on the New Yorker
Magazine, he’s just characterizing what happened. Let me just see if you agree with us one paragraph
characterization. “The second Vatican council convened in Rome 1962. By the time the council
concluded 4 years later, the church had erratically transformed understanding of itself. The progressive,
there is that word again, the progressive wing of the church felt that Vatican II was
a liberation and invoked its spirit in challenging the faiths core doctrines and theology. This
contingent — progressive contingent eventually came to dominate much of the institutional
church holding sway particularly in the Catholic Academy.” Broadly accurate? I think broadly accurate except that I would
say that the church came out of the second Vatican council deeply refreshed, not broadly
new. We return to our sources. It was going back to the early stages of the church in
the earliest stage — days of the church of self understanding and to articulate that
in the contemporary ways so that the people of our time could live the apostolic faith
of the church in a contemporary way. Alright, now you have, I offer defensive council
paraphrasing you and you tightened it up, you strengthened that defense. Listen to a
few statistics. Catholic seminarians in 1965, 49,000. By 2002, the most recent date for
which I was able to find numbers Googling around on the internet, 2002 fewer than 5000
nuns in 1965; a 180,000. By 200,2 only 75,000 average age of 68. Students in parochial schools
1965, I’m using 1965 because that’s the year of the council ends and— Legitimate. Right. Students in parochial schools in 1965,
4.5 million. Today, even thought the population of Catholic’s is much bigger only 2 million.
You write in Render Unto Caesar that the greatest danger for American Catholics is undue assimilation
into American life. The question would be why shouldn’t American Catholics assimilate
or what is to prevent them from a assimilating when the church after Vatican II collapsed
from under their very feet? Well I don’t if I would say the church collapsed.
We’ve had huge difficulties in the last30 years of the church in the western world especially.
There’s no doubt about that. But, you know, as you mentioned those statistics about nuns
and priests and seminarians, I thought of the statistics about active laity in the Archdiocese
of Denver today, the freshest groups in terms of the new evangelization are led by laity
and completely led by the laity which wasn’t the case 30 years ago. Thirty years ago, people
generally sat in the pew and listen to what the priest said and the church was identified
with the priest and the sisters. Today, the churches and this is the way the church has
always really understood itself is primarily the laity and those of us are who are clergy
are there to serve to laity and to see the new efforts of evangelization that are being
led by the laity shows me the fruit and the grace of the Secondary Council. Okay. But, nonetheless, assimilation is a big issue
and the issue we were talking about earlier about public official’s position on abortion
shows that although we claim catholics— Catholic public officials. Yes. We claim that this is the age of the
educated laity, it demonstrates that that isn’t always the case. People think they’re
educated or not. I think the church has done a very poor job in passing on the authentic
apostolic faith to its people and we need to get better about that and we need to get
better very, very soon. Alright. Let me take another shot at you Archbishop. Sure. As a Bishop. The church teaching on this is
very clear. A bishop doesn’t represent the Pope, he doesn’t represent the National Council
of Bishops in his own diocese. A bishop is the representative of Christ, himself. No
higher moral authority than that but listen to a bill of particulars. 1981. Pope John
Paul II denounces “easy and hurried marriage annulments” which in the year, in this country,
numbered 43,000; up from about 400 before the Second Council and by the year of John
Paul II death, have the American bishops listen to him? Well, the number of annulments has
gone up to some 50,000. 1983. The bishops issued their pastoral letter on nuclear weapons
which is very difficult to read as anything other than a sharp criticism of the Reagan
administration which is even then pursuing a policy, which six years later, will lead
to the fall of the Berlin wall and the liberation of tens of millions. In 1984, the Bishops
issued their letter on the economy which again is very difficult to read as anything other
than a criticism of the Reagan administration which was issuing policies that would lead
to the longest peace time expansion in the American history. And in the beginning of
2002, you got the emergence of the sex scandals. Some 14,000 victims by the church’s own count.
Wrong on the cold war, wrong on the economy, tainted by sex scandals and if American Bishops
won’t listen to the Pope, why should American Catholics listen to them? Where is the grounding
for the moral authority? You know we could take each one of those issues
separately I’d be able to respond. It’s kind of overwhelming. I’m just — I’m doing a total.
[ Simultaneous Talking ] Go right ahead. But how do I respond to it as the guest as
a whole. I don’t — I, you know certainly, the bishops made many mistakes and we sometimes
spoke on — authoritatively on things we know a little about. We ought to be very careful
about doing that in terms of the sexual abuse the bishops admit as — they admit that they’ve
made many mistakes and there is, we need to do nothing about that except to apologize
and apologize again and again, but nonetheless, despite all those problems, I think that the
faith of the church has been preached clearly by many bishops and I see new signs of a growth
in life in the church throughout our country and so I think, you know, for example, let’s
go back to the question of annulments. Right. The reason why there is so many annulments
today is because lay people who are married don’t give very good examples about fidelity
and marriage to their children. And the next generation has a less clear commitment to
the — to the fidelity as required in the marriage of relationship. So to blame that
somehow on the bishops is inappropriate. I mean, I think, there are fewer catholic marriages
that are valid today than they were 30 or 40 years ago because people don’t enter the
marriage with the intention of being faithful. And for the church to acknowledge that in
this marriage course is not a sign that the marriage course are corrupt. It’s a sign maybe
that they’re not — we’re not giving a good example of married life, within a context
of their family which is the most important part of the church. Alright. Here’s the sort of underlying question.
In my mind anyway and I recognize I just dumped a lot of staff on the table there but the
question is well here, Saint Patrick’s Cathedral this past spring, Pope Benedict XVI called
for new spring for the church of America and you, several times in this conversation, said
that you see signs of renewal. So I guess what I’m groping toward here is, you, as one
of the leading clerics in the church in the United States, do you have the sense — I
can only put it crudely as the church turning a corner. Do you see a new generation of priest
and laity — do you see the new spring. Well. That Benedict is calling for? I don’t know, I mean, I do see a new spring
’cause I believe the church is always being called to conversion into new life. Whether
it’s going to take place in the way we want it to take place or whether it’s going to
take place in the context of a real collapse, I don’t know, it’s God’s plan and I’m happy
to participate at this, you know, the best I can but I don’t know how to predict that
but I do know— Yes. That Jesus rose from the and that His power
is present in the church in the power of the Holy Spirit and there are many people in the
church today who are enlivened by that and responding to that so I have confidence that
the church will survive and more than that, the church will be vital but whether or not
it will be structurally strong in the sense that it was in the 1950s, I don’t know. You don’t know. All right. I don’t. Matthew 22 15-21. I’d like to take you to
your — to your book here. Let me read this passage that you quote, “Then the Pharisees
went into council, how to entangle him in his talk and they sent their disciples to
him along with the Herodians saying, “Teacher we know that you are true and teach the way
of God truthfully and care for no man for you do not regard the position of men, tell
us then what you think, is it lawful to pay taxes to Caesar or not”? But Jesus, aware
of their malice said, “Why put me to the test, you hypocrites, show me the money for the
tax” and they brought him a coin and Jesus said to them, “Whose likeness and inscription
is this”? They said “Caesar’s”, then he said to them, “Render, therefore, to Caesar the
things that are Caesar’s and to God the things that are God’s”. You write that Jesus does
three vital things here. First, he acknowledges, I’m quoting from the book, first he acknowledges
that Caesar has rights. Would you explain that? Well He does. In another place as in the scriptures,
we are told we have a duty to obey legitimate authority in the community and certainly Caesar,
representing the — you know, the political power has a responsibility for the common
good of the community and we as members of that community have responsibilities to contribute
it to common good. So we have responsibilities to Caesar. Second of the 3 items here, Jesus, again I’m
quoting from the book, Jesus desacralizes in effect he demotes Caesar. Right. Explain that. Well, at the time when Jesus was asked a question,
there was a sense in the Roman Empire that Caesar shared in divinity and somehow was
given the respect that we think belongs only to God and Jesus in comments, He demoted Caesar
and said that “God is God and Caesar is not”. And that’s very important for us to understand
it today. You know, the Christian proclamation Jesus Christ is Lord is a political statement
in sense because it’s says that no one else is Lord. You know, the President of the United
States is not Lord. The king — the kingdom is not Lord but Jesus is Lord. Right. That’s de-sacralization of political power. And third you write, quoting from your book,
“Jesus stays silent about what exactly belongs to either Caesar or God”. Would you explain
that one again? Well, I think, that it means we’re invited
to make those decisions in our life and that’s why the involvement of Christians in the political
life of a country is very important because that’s our process of working out what belongs
to God and what belongs to Caesar. Of course, for those of us who are Christians, everything
belongs to God, even what belongs to Caesar ultimately belongs to God. But we have a duty
to understand our responsibilities as citizens and to participate in the common life of the
country. Alright. Now — fundamentally, two narratives
about the relationship between the church and state. One holds that Christianity, the
church, itself, informed the development of all the highest political attainments of our
civilization the freedom and sacredness of the individual, separation of church and state.
In its first three centuries, the church was defined itself an opposition to the Roman
Empire and so forth. But the other narrative which I will call the Christopher Hitchens’
narrative says that during the Renaissance and especially during the Enlightenment, Europe
won its beliefs in human rights in equality and tolerance and so forth by struggling against
the church. That the church is this — is a kind of retrograde and our highest achievement,
in fact, come in opposition to the church. Now, I know where you stand on that question
because on Render Unto Caesar, you’re eloquent on the first narrative. But for someone who
is listening, how would you refute the Hitchens’ thesis. Well, I think, we also acknowledge what’s
true in the Hitchens’ perspective that there have been times when the church has too closely
identified itself with the state and because of that, has done a disservice to itself into
the Christian message. But at the same time, I think, if we read history honestly, we see
that the best of who we are today, in the western world, has this origin in the Jewish
and Christian understandings of human dignity and our responsibility for one another for
the common good. And I think that that kind of hostility that you see— Right. On the part of the pop atheist, you know,
they are so popular today. It’s pretty easy to refute historically. It’s very entertaining
but I don’t think it’s particularly damaging ’cause I don’t know who really takes them
seriously. I think that it’s much more worry something is a kind of pressure we feel from
the elites of our culture to be quiet about our faith and that’s a practical atheism.
It’s not a theoretically. It’s one that requires us to act as though God doesn’t exist. And
we have to resist that. And how do you as an — how does that impinge
on your life? How do you feel this pressure and how do you see it in the life of your
people— Well, an example is the one you gave today
when you showed that New York Times article. It maybe — it always characterizes those
of us who are speaking to our own communities about what we believe that somehow interfering
in the political life of our country or the interfering in government and we’re scolding
people rather than talking about the truth. The elites — so many of the elites of our
country are hostile towards the church having a voice. And that’s not very broad minded.
It seems like if you want — if you believe that everyone has a right to speak his or
her mind, that includes the church and we all have a place in the public square to do
that. You’re so — don’t you wanna smack ’em around
a little bit, archbishop? You seem so placid and serene. Don’t you wanna? Well, you know I don’t know this. If you see. I don’t know if smacking people around does
any good. All right. You know, but I have to say sometimes I would
be moved towards angry — to anger by some of the things that were said. But that doesn’t
accomplish. Anger doesn’t accomplish very much except motivates you to do something
more. Saint Augustine said that hope has two beautiful daughters. One of them is anger
and the other is courage. If you have hope that things can be different, you get angry
with the way things are. And courage is necessary to make sure they change. And so I think anger
can be a good motif for moving into the future in a stronger and fresh cut away. Alright. The foundational right as you described
it. Again, I’m quoting from Render Unto Caesar, “The logic behind abortion makes all human
rights politically contingent”. Explain that. Well, if we can decide, if we — whether we
mean government or a small group of people can decide when someone has human rights,
that means, we can draw that line at different stages in human history. And that makes all
of our rights contingent to me. Who gives anyone the right to decide that an unborn
child has no right to life? Governments — whoever is making those decisions takes that
authority on itself or on himself. And if we allow that to happen, if we give someone
the authority to make that decision, they can make a decision in a way that affects
us very negatively later in our life. So I think, it’s on our self interest to oppose
abortion because I’m 64 years old, I’m getting older. If they can cut life off at a certain
point back there, they can cut it off at a certain point beyond which – You know, you’re — so, I see the argument
in principle that is to say if arbitrariness about life itself is permitted to the political
system, then the arbitrariness will begin — could in principle begin to show up in
other places but you’re making a much stronger argument than that. And here you talked about
modern day Europe and euthanasia, lost of civilization of morale and so forth. Would
it be your argument that unless the right to abortion is consistently challenged, that
those — that there will be a practical — in practice there would be a drift toward
euthanasia and so on? Oh, I think there is of course. That’s going on already. There is, of course, thing as the value of
human life in the western world. And it shows itself as you — as you just said and the
desire on the part of people today to encourage euthanasia to make assisted suicide a legal
thing. This is happening in our country and certainly this happened in the Netherlands
and Scandinavia. So I think that if we don’t consider human life sacred for the moment
of conception through natural death, people will begin to decide what’s useful and what’s
not and who’s useful and who’s not. And that’s — it makes all our human rights contingent,
and it’s very, very dangerous. Quote again from Render Unto Caesar, “My friend
–” I’m quoting you, “My friends often ask me if Catholics in genuinely good conscience
can vote for a pro-choice candidate. The answer is I couldn’t. I know of nothing that can
morally offset that kind of evil”. Now there is a historical component even to your position
as I make it out. 1980 for the first time one political party includes a pro-life plank
in its platform. It’s the Republican Party and Ronald Reagan runs the first explicitly
pro-life candidacy in American history. It hadn’t been an issue before 1973. And he explains
that the abortion liberalization law that he signed as governor, he views as a mistake
and regrets it. And in 1980, his opponent is Jimmy Carter who’s pro-choice and you supported. I supported Jimmy Carter. Alright. So, something has changed in those years. Well, yes because, you know, in those days
I took the position that many people take today that abortions are very important issue
but one among many, probably can’t do much about it now, but we will as time goes on.
And so let’s vote for what’s possible. I changed my mind because I saw — I see that my position
was not — was not correct it was wrong because we’ve had since that time how many years have
passed since then? Well, about 30 years. Right. And since then, we’ve had growing numbers
of abortion. There’s has been no change at all in terms of the party platforms. And I
think that unless we stand up and courageously say, “You’ve got to do something now.” We’re
admitting that abortion was going to be the way of life in our country and to the death
of future. I don’t think that’s true and we have to fight it. We have to do all we can
to make sure that our country understands that this is the foundational issue for the
health of our society, the health of our culture. Now you know in an interview with the New
York Times, I guess this goes back a couple of years. 4 years ago. 4 years ago. David Kirkpatrick is the same fellow who wrote
the article today. And you wrote or you said, excuse me, “I think
a lot of Catholics thought that after the initial phase of the abortion on demand, we
would get back — we would back away from abortion. But every time we try to begin to
limit partial birth — every time we try to begin partial birth abortion legislation which
would limit abortions, the court disembowels it, every time, every time”. Every time. Now you sound, that actually does sound angry.
My question is back during the 1980s when the bishops seemed to be devoting their attention
to— The economy? Nuclear and the economy – That’s right. And I don’t remember bishops speaking anything
like this forcefully as you’d have spoken and again and again and again in recent years
now on abortion. Furthermore, what — if one reads the — what was it, the John Jay Report,
that Jay had sent a report on the sex scandals. The huge majority of them took place in the
’60s and ’70s. They became public much later. They took place in the ’60s and ’70s, some
into the early ’80s. And so the question I have here is what is happening in the church?
Is the church, do you see your brother bishops going back, so to speak, to first principles
or are you Charles should approve an anomaly? Well, I don’t know, I don’t know how to make
those kinds of comparison, but I do know this, I lived through the ’60s. I was a Denver priest
in 1970. It was a time of great confusion. The sexual revolution was taking place and
all these concerns about the economy and about war and – Then the council was – A new council, so that was a time of confusion.
And I think one of the things that the Catholic Church wanted to do during the council, legitimate
thing was to — have a friendlier face to the world so that we could attract people
to Christ through our openness and our fraternal love. I did that then became confused with
a certain kind of tolerance of the evils around us, and we backed off saying very clearly
where the church stood on issues like life. It didn’t work. I mean the church opened its
windows to the world. The world closed its doors to the church. It didn’t — there wasn’t
a mutual kind of self giving or whatever. So I think we have to be realistic. Our approach
to handling this did not work. The best way to handle something that has work is to change
what you’re doing, and I think that it’s time for the church to be — to change its tactics.
The goal has always been the same to protect unborn human life, all of human life. Protecting
the dignity from the moment of conception through death, and we have to do it in ways
that work. What we did before didn’t work. Alright, and I’m going to try one more time.
I recognized that you’re not actually not interested in big historical trends, you’re
interested in doing your duty. That sounds to me like what you’re trying to say is – I don’t know. I don’t know that I can —
I don’t know how to interpret those historical times. I don’t if we can — there a better
way from it. When you go to a meeting of the – Bishops. Of your brother bishops, what’s the council
called, it has a formal title? Yeah, United States Conference of Catholic
Bishops. Alright. So everybody’s there and when you
go to a meeting, do you get slapped on the back by your brother bishops? No. Saying, “Charles, right on.” A few, but not too many. Alright. I think that there are differences among the
bishops on how we should handle this. I think if you invest your energy and your life in
going a certain direction for many years, it’s difficult sometimes to admit that’s not
the direction to go. It’s hard to say it doesn’t work. But I think, you know, the sign of maturity
is the willingness to admit you made a mistake and to try a different tactic. And I think
that we need to grow into a mature understanding of what we have done or haven’t done, and
has worked or hasn’t worked. Alright, our final segment, the present moment.
Here, August 24th, Speaker Pelosi makes her statement on meet the press, misrepresenting
the church as teaching on abortion. You have a statement out the very next day. The conference
of bishops follows you by a day and produces a statement and then – Well, they know that they have to be more
careful than I am. I’m sorry, I don’t mean to suggest that you
– But they were speaking for the body of bishops
and I was speaking for myself. Right. Well, they have to pass it around to
more committees or more people. Well, they do, they do. Alright. So but the point is she speaks and
the bishops find their voice and speak back. And then on August 29th, John McCain names
Sarah Palin who has given birth just 4 months earlier to a Down syndrome child and a couple
of days later we learned that her oldest daughter is pregnant out of wedlock and is going to
keep the baby. And so the question is could — would you like to — the question is does
that represent the best 2 weeks for the pro-life movement since 1973 in Roe versus Wade? Oh, that we – Do you had the feeling something is – Well, I think it’s a wonderful example that
Palin family has given in both of those cases you’ve talked about. And that’s the way people
I know always act, quite honestly, the Catholics who were faithful to what the church teaches
always give birth to that Down syndrome children. And they – But you know there’s only 10 percent of Down
syndrome pregnancies now and in birth. I know that’s because we have this practice
of doing this medical tests before people are born and we can discard them because the
law of the land allows us to do that and that’s a huge violation of human dignity. And is
a violation of our capacity to love people who are in difficult circumstances. But I
think it’s a wonderful example, but I know many people like that. And it seems to me
that the people who are the best people are the ones who’ve suffered because they loved
their family in difficult circumstances. I hate to see and be so antiseptic and clean
that people don’t have those opportunities to love the difficult circumstances. Alright. She’s a republican. At the democratic
convention which was held in your city into which you were not invited, there were 4 sessions. Well, I was invited, but I wasn’t invited
to pray. But they invited me to come and sit and watch. But you were not invited to give any invocation
or – No. No. Alright, but can you point to hopeful signs
in the democratic party, I don’t know if you still — you supported Carter, you said in
’76 and 1980 but I don’t know if you consider yourself a democratic still but – I’ve never been a democrat or republican. Oh really? I’ve always been independent, but I thought
Jimmy Carter showed — he articulated the scriptures and showed a path towards hope,
I thought, that’s why I supported him. All right. I don’t know. I don’t know what to say. It
seems to me that the abortion plank of the democrat party is even more strongly embraced
in the latest platform than it was before. You know, they insist that this is the irremovable
position of their party, and I think it’s unfortunate. It seems to me that Catholics
and Democratic party and there are lots of them, lots of good Catholics, I hope right
in the party. They should really force their party to drop that platform plan to change
it. They have an obligation that if they’re going to be democrats to do what they can
to change things. As republicans have an obligation — the republican Catholics have obligation
to do what they can to make sure that the platform of the Republican Party respects
human dignity and the common good. Alright, now this is a total flyer of questions.
Not related to historical trends or church teachings, I just — it occurred to me, and
I thought if I have a chance to ask you, I’m going to ask you. What I’ve noticed, what’s
been commented on mostly in blogs, the mainstream press hasn’t picked it up too much as best
I can tell. But at campaign stop after campaign stop, at Sarah Palin’s campaign stops, people
who have Down syndrome or autistic children or other special needs children are turning
up with these children. And it seems to me, I’m putting this crudely, you’ve probably
thought about it more deeply than I have, I’m sure you have. That there’s a way in which,
there’s an astonishing moment taking place in the political system right now, whereby
these people, they said the statistics are 90 percent of Down syndrome pregnancies end
in abortion. So, this 10 percent are on the margin culturally, the culture does nothing
to support them or celebrate them. They make silent sacrifices everyday. They are embarrassed, because the culture
looks down on them for having these children. And suddenly this political figure simply
by her presence validates them. Not only that but validates having 5 children. And validates having 5 children. As a father
of 5, I’m happy to hear that validation. [ Laughter ] But here’s the bit, so she validates the sacrifices
of — to put crudely the 10 percent, but the other 90 percent? The political system can
validate but it cannot grant or extend forgiveness. How? Do you see where I’m at there? There
are people — I remember in the White House in the old days when I was a speech writer.
One of the arguments against mentioning the pro-life position in speeches by President
Regan was that so many millions of people have had abortions and you don’t want to remind
them of this horrible experience. Well, we’re told the same thing in terms of
preaching in the church. Oh really? Yes, whenever I preach about abortion or even
about divorce, I often have people come after me — after me after mass and criticize me
for saying anything about it, because maybe they’re having abortion. Yes. Or they are from a broken family. And somehow
we’re supposed to make everybody happy by not speaking the truth. I think that’s very
unfortunate. But you’re in a position of being able to
extend forgiveness. Oh, we all are, I mean I’m sure I can formally. So that’s the — so the question I’m trying
to ask you is how does the society if we follow the Chaput program and reassert the fundamental
moral principles here, you’ve got tens of millions of people. How do you move toward
healing? I hate that – If in terms of those – For the society, yeah, yeah. Well, you know, I think getting back to – In other words, excuse me, I wanna just —
you’ve been saying that the Catholic position on abortion is not distinctively Catholic? No. That it ought to be an American position. Right. So the question is, you as a bishop can extend
sacramental forgiveness, people can go to confession and there’s a certain sense in
which that is a profound closure or healing. But that’s not available to the wider society? Oh, but in terms of — we can study our constitution.
We can go back and historically understand what the founders meant by what they gave
us. It’s a great gift, you know, I think our constitution for some of us are very, very
proud of. And it does embody the right to life, you know, and that should be interpreted
in that clear distinct way and not in the vague definitions that is sometimes has been
given to us by the Supreme Court. So I think our constitution can become a common document
that leads to healing if we take it seriously. I see. Alright. Three final questions. And
if you can just give me a couple of sentences or tight little paragraph, if that’s possible.
Some who are watching this interview there’s a patriotic American who’s an atheist, just
can’t bring himself to become a believer. What is an atheist to make of of an archbishop? I don’t know. But we are both American citizens.
We both love our constitution. We see the history of our country as a history of great
opportunity for believers and nonbelievers alike. Why would we ever move in a direction
of pushing any group out of the public square? I think nonbelievers who are committed to
human dignity and the common good have everybody’s much right to stand in that square and talk
as I do, and we’re brothers and sisters in a common cause. Alright. Here’s somewhere, let’s pose it,
there is someone watching. A young man who was thinking of, who had thought about becoming
a priest but may have been put off by the scandals that begin to emerge in 2002, or
a young woman who’s thinking about becoming a nun and just as others, just too much confusion,
there is too much taint of scandal. What would you say to such a person? I think that the young woman ought to go visit
a convent where there are young women who have become nuns. And the gentleman ought
to go to a seminary and see that there are many young men who have the same horror of
what happened but have a love with the church and are gonna make sure by their own lives
that it doesn’t happen again. I mean it’s the real human beings who’ve embraced the
call to be sisters and brothers that should be the greatest source of encouragement by
those young people. You have two seminaries in the Archdiocese
of Denver as I recall? We do. How are your numbers? Our numbers are terrific. We have 115 students
studying there this year and we have somewhere between 20 — 75 and 80 studying to be priest
for the archdiocese in Denver right now. Alright. And the last question, we’re out
of time. What 2 sentences would you like to speak to the next President of the United
States? I just like to have the opportunity to speak
to him. [ Laughter ] Regardless of who it is, because I think that
it’s important for the President of the United States to be partners with the religious leaders
of our various faith communities. And so, I would hope that there would be an openness
to dialogue and to listen. Because the church has a long history of caring for human beings,
a long history of working for the common good and protecting human dignity. And so I think
we have something to offer. We want to be partners in the process of making our country
the great countries that the founders wanted us to be. Most Reverend Charles J. Chaput, Order of
Friars Minor, Archbishop of Denver, and the author of “Render Unto Caesar”. Thank you! Thank you very much. Thank you very much. At Hoover Institution, I’m Peter Robinson
for Uncommon Knowledge, thanks for joining us.

Local 24 News political analyst & commentator Otis on Gov. Lee’s signing of Nathan Bedford Forrest D


NOW TO THE CONTROVERSY OVER TENNESSEE’S PROCLAMATION … DEDICATING A DAY IN HONOR OF NATHAN BEDFORD FORREST … CONFEDERATE GENERAL … SLAVE TRADER … AND K-K-K GRAND WIZARD. GOVERNOR LEE SAYS A DECADES- OLD LAW REQUIRED HE .. AND GOVERNORS BEFORE HIM… TO SIGN IT. BUT PROMINENT LEADERS ARE SAYING IT’S TIME TO CHANGE THE LAW.. AND YOU CAN ADD OUR OTIS SANFORD TO THE LIST.. HERE’S HIS POINT OF VIEW OTIS SANFORD/REPORTIN G: THE PROCLAMATION OBSERVING NATHAN BEDFORD FORREST DAY IN TENNESSEE MADE NATIONAL NEWS – AND NATIONAL CONDEMNATION OVER THE WEEKEND – BECAUSE THE STATE OFFICIALLY HONORED A SLAVE TRADER AND THE FIRST GRAND WIZARD OF THE KU KLUX KLAN. BUT CRITICISM OF GOVERNOR BILL LEE FOR SIGNING THE PROCLAMATION WAS MISPLACED. LEE WAS SIMPLY DOING WHAT A STATE LAW REQUIRED. HIS IMMEDIATE PREDECESSOR, BILL HASLAM, ALSO SIGNED THE PROCLAMATIONS WHILE HE WAS IN OFFICE. AND HASLAM MADE IT CLEAR HE IS NO FAN OF FORREST. IT IS TIME FOR THE LEGISLATURE, WITH GOVERNOR LEE’S SUPPORT, TO REPEAL THE LAW AS SOON AS POSSIBLE. I SUGGEST THEY DO IT DURING THE UPCOMING SPECIAL LEGISLATIVE SESSION IN AUGUST. IF NOT, THEN CERTAINLY WHEN LAWMAKERS CONVENE IN JANUARY. ACCORDING TO THE NASHVILLE TENNESSEAN NEWSPAPER, THE STATUTE REQUIRING A STATE OBSERVANCE FOR FORREST DATES TO 1969. IT IS ONE OF THREE REQUIRED SPECIAL DAYS LINKED TO THE CONFEDERACY. THE OTHER TWO ARE ROBERT E. LEE DAY IN JANUARY AND CONFEDERATE DECORATION DAY IN JUNE. THE CONTROVERSY AROUND THESE DAYS ARE OBVIOUS. AND THEY SHOULD NOT BE DICTATED BY LAW. I REALIZE THERE ARE THOSE WHO WANT TO REMEMBER AND HONOR THE CONFEDERACY. AND THAT’S FINE. PRIVATE GROUPS ARE FREE TO HOLD ALL THE CEREMONIES THEY CHOOSE. BUT STATE GOVERNMENT HAS NO BUSINESS RECOGNIZING PEOPLE AND CAUSES THAT SUPPORTED SLAVERY, RACISM AND OPPRESSION. IT WAS WRONG THEN – AND IT’S WRONG NOW. AND THAT’S MY POINT OF VIEW. I’M OTIS SANFORD, FOR LOCAL 24 NEWS.

2015 Selden Society lecture – the Hon Justice James Douglas on Lord Denning


Good evening ladies gentlemen. Welcome to
the sixth in this year’s series of Selden Society lectures. Tonight’s subject is Lord
Denning. I look around the room and see many who I suspect have the same fondness for Lord
Denning that I did when I was at law school. He was one of the most famous judges of the
20th century. He was a favourite I think not so much for his learning when we were students
but for those most famous opening paragraphs. I’m sure you’ll hear a little more of
that from our speaker tonight. Justice James Douglas was admitted to the bar in 1973 but
delayed commencing practice, while he undertook studies at Cambridge from which he graduated
Bachelor of Laws and with a diploma of Legal Studies. He has been a judge of this court since 2003.
Justice Douglas. (APPLAUSE) I thank Justice Martin for his omissions.
Especially having regards to his threats. Whitchurch is a tranquil village in Hampshire. Old Tom
Denning died there on the fifth of March 1999. He had been born in his parents’ house in the
same village more than 100 years before, on the 23 January 1899. In March 1974, he was
eight years from the end of his long judicial career. He was still a dominant figure in
the common law world. I mention March 1974 because that was the one occasion when I saw
him in action as a judge. I was a 24 year old recent law graduate, then
working as Sir Harry Gibbs’ associate. I had the great good luck to have accompanied
Sir Harry to London where he was to sit for some months on the Judicial Committee of the
Privy Council. We landed in London early on a weekday morning and checked into Brown’s
Hotel just off Piccadilly. It was a club-like hotel – suitable for judges and bishops, as
a cynical English acquaintance remarked to me at the time.
It was my first trip to London and, energised by the surroundings and the brisk wintry weather,
I set out immediately to see the sights. I knew where I wanted to go – down Piccadilly,
through Piccadilly Circus, along to Trafalgar Square and up the Strand to the Royal Courts
of Justice. It was shortly before lunch. I headed to the Court of Appeal, went in, sat
down and had the good luck to catch Lord Denning, Master of the Rolls, presiding – courteous,
avuncular, with that distinctive Hampshire burr to his voice.
He was the star in the judicial firmament for many law students of my age and that was
the best thing I could then think to do to introduce myself to the sights of London.
Now you might think that was pretty odd. I am almost 42 years older now and, perhaps,
more world-weary. I’m also very much less likely to want to go straight to the Royal
Courts of Justice when I land in London. By the same token, with all respect to my judicial
colleagues in Britain now, there is no-one there at present with the star quality that
then attached to Lord Denning, at least in law students’ eyes.
That quality derived partly from his willingness to try to modernise the law while teasing
his more cautious colleagues. Students also loved his limpid prose. He used a faux-Hemingway
style to tell the story behind the case while laying out his sympathies for all to see.
We all have our own favourite examples. One of mine is Hinz v Berry dealing with the quantum
of an award of damages for nervous shock: “It happened on April 19, 1964. It was bluebell
time in Kent. Mr and Mrs Hinz had been married some 10 years, and they had four children,
all aged nine and under. The youngest was one. Mrs Hinz was a remarkable woman. In addition
to her own four, she was foster-mother to four other children. To add to it, she was
two months pregnant with her fifth child. On this day they drove out in a Bedford Dormobile
van from Tonbridge to Canvey Island. They took all eight children with them. As they
were coming back they turned into a lay-by at Thurnham to have a picnic tea. … There
came along a Jaguar car driven by Mr Berry, out of control. A tyre had burst. The Jaguar
rushed into this lay-by and crashed into Mr Hinz and the children. Mr Hinz was frightfully
injured and died a little later. Nearly all the children were hurt. Blood was streaming
from their heads. Mrs Hinz, hearing the crash, turned round and saw this disaster.”
Another is Lloyds Bank v Bundy: “Broadchalke is one of the most pleasing villages in England.
Old Herbert Bundy, the defendant, was a farmer there. His home was at Yew Tree Farm. It went
back for 300 years. His family had been there for generations. It was his only asset. But
he did a very foolish thing. He mortgaged it to the bank. Up to the very hilt. Not to
borrow money for himself, but for the sake of his son. Now the bank have come down on
him. They have foreclosed. They want to get him out of Yew Tree Farm and to sell it. They
have brought this action against him for possession. Going out means ruin for him. He was granted
legal aid. His lawyers put in a defence. They said that, when he executed the charge to
the bank he did not know what he was doing: or at any rate that the circumstances were
such that he ought not to be bound by it. At the trial his plight was plain. The judge
was sorry for him. He said he was a ‘poor old gentleman’. He was so obviously incapacitated
that the judge admitted his proof in evidence. He had a heart attack in the witness-box.
Yet the judge felt he could do nothing for him. There is nothing, he said, ‘which takes
this out of the vast range of commercial transactions’. He ordered Herbert Bundy to give up possession
of Yew Tree Farm to the bank. Now there is an appeal to this court. The ground is that
the circumstances were so exceptional that Herbert Bundy should not be held bound.”
You might not be surprised to learn that Mrs Hinz held on to her generous award of damages
for nervous shock and that Lloyds Bank were given the silver medal on Mr Bundy’s appeal.
His eloquent defence of village cricket, in dissent in Miller v Jackson; is so inimitably
English but I shall not pause to read it to you. Nor shall I read the introduction to
Broome v Cassell & Co, even though it is as riveting an account of war time naval action
as one would find in the novels of Patrick O’Brian or C S Forester. His skill as a
writer was evident and one assumes that his eloquence and presence made him a powerful
advocate but it is his judicial work that made his name.
I propose to provide some details of his upbringing and early career, to speak about his judicial
philosophy and how that played out in some areas of the law in particular and to conclude
with some observations about his Achilles’ heel as a judge, too great a readiness to
confuse personal prejudice with his notions of justice.
The literature on Lord Denning is immense, with many contributions from the man himself
in book, articles and speeches. Apart from the books and articles about him, there is
even a Denning Law Journal devoted to the examination of the legal issues dear to his
heart. I have to thank my associate Jarrod Jolly for filtering through the mass of material
to allow me to focus particularly on Lord Denning’s judicial philosophy. But first
to his family background and early career. Lord Denning was very conscious of the Saxon,
Viking and Norman ancestry of the English and believed that the word “Denning” suggested
Danish descent while his Christian name, Alfred, betokened the Anglo-Saxon King and lawgiver,
Alfred the Great. The thousandth anniversary of King Alfred’s death occurred in his birth
year and led his parents to choose that name for him. He was known, generally, however,
as “Tom” after his second name, Thompson. Some of his ancestors had been prominent during
the English Civil War on both sides of the conflict. But his more recent ancestors had
lapsed into poverty and obscurity. He and his siblings did much to reverse that situation.
There was one daughter and four boys. He was the fourth boy. They had a poor but happy
childhood. He was a brilliant student at Andover Grammar School, which he attended on a scholarship.
Of it he said: “… an Elizabethan grammar school. What could you have better?”
He received a scholarship to attend Magdalen College, Oxford where he began to study mathematics
in October 1916 before his conscription in the summer of 1917. He was keen to join the
Army and served on the western front with two of his brothers. Jack who was killed at
the battle of the Somme and Reg who was wounded there. Another brother, Gordon, fought at
Jutland and died of tuberculosis in 1918 derived from his war service. Tom Denning himself
fought at the Somme in April 1918 in decisive fighting which resulted in the collapse of
the Ludendorff offensive and laid the basis for the allied victory in September to November
1918. He described his two brothers who died as
“the best of us”. That was a significant claim. Lord Denning’s own talent was obvious
but of his two surviving brothers, Reg later became a lieutenant-general and Norman a vice-admiral. Tom returned to Oxford and completed his education in mathematics after the end of the war. His
university career was brilliant. In spite of the quality of the education available
at some of the English grammar schools, such as Manchester Grammar, it seems clear that
the inhabitants of the upper echelons of the English class system did not rate them highly.
Denning himself felt ashamed at having been at a grammar school, but, as he later wrote,
he “need not have worried. Everyone was very understanding. And when I took a First
Class in 1920, they were as proud of my achievement as I of theirs.”
He then taught for a year at Winchester College but, with encouragement from the president
of Magdalen, returned to Oxford to read law. He received a scholarship founded in memory
of Lord Eldon to be awarded to “a Protestant of the Church of England” who had obtained
a first class honours degree as an undergraduate. He was devoted to the Church of England and
had a first class degree. Magdalen’s academic reputation in the early
1920s was not stellar parcet some of the inhabitants in this room that have studied
there. It had a reputation for the social position of its students rather than their
scholarly talents. Denning described his law tutor there as knowing no law except on the
Statute of Frauds. The tutor was an unsuccessful barrister who had once had a case on that
subject. Nonetheless, Denning received first class honours in the law school with very
good marks for most subjects, except jurisprudence for which he received a gamma minus. He reflected
that: “Jurisprudence was too abstract a subject for my liking. All about ideologies,
legal norms and basic norms, ‘ought’ and ‘is’, realism and behaviourism, and goodness
knows what else.” That did not deter Lord Denning from developing
his own philosophical approach to the law, particularly during the period when he sat
on the Court of Appeal during the 1950s. The depth of that approach is another issue. He did not succeed in the testing competition to become a member of All Souls College at
Oxford, an academic research institution with no undergraduate students. Undeterred, he
pressed on with his ambition to become a barrister. He had the assistance of a prize studentship
of £100 per annum which helped him survive until his practice grew. He commenced at the
Bar in 1923 and by about 1930 was making £1,000 per annum. He also wrote articles for the
Law Quarterly Review and helped bring out a new edition of Smith’s Leading Cases in
the Common Law. He also co-edited the 9th edition of Bullen & Leake’s Precedents of
Pleadings published in 1935. The work on Smith’s Leading Cases, he said, taught him most of
the law he ever knew. It was an immense task involving much research and, in particular,
assisted him to resolve the issues raised in the High Trees case in 1946, a decision
to which I shall return. In 1932, he married Mary Harvey, the daughter
of the vicar of his home town in Hampshire, Whitchurch. His religious instincts were deep
and significantly influenced his philosophical approach to the law. They had one child, but
Mary died tragically in 1941. Their son later became an academic and a fellow of Magdalen
College. Tom Denning remarried Joan Stuart in 1945. They remained happily married until
her death in 1992. He had been granted silk in 1938 and was made
a judge in the Probate, Divorce and Admiralty Division in 1944. He had never done any divorce
work as a barrister, nor did he like it, but the offer of a position on the High Court
was not one he felt he should refuse. He was then only 45 years old and young for such
an appointment. Judges appointed then were not obliged to retire at any particular age.
He transferred to the King’s Bench Division late in 1945.
The next year, he delivered judgment in Central London Property Trust Limited v High Trees
House Limited, the decision by him which has probably influenced the development of the
law more than any other. I say that advisedly because, rather surprisingly,
it is the only decision of Lord Denning included in the list of “15 top cases” compiled
recently by the English Incorporated Council of Law Reporting from the votes of its readers.
They were asked to select the cases they thought had made the greatest contribution to English
legal history during the last 150 years, the period covered by the authorised law reports.
When one includes the shortlist of 40 from which the 15 were chosen, the only other judgment
attributable to Lord Denning is his dissenting view in the Court of Appeal in Norwich Pharmacal
Co v Customs and Excise Commissioners. The majority in the Court of Appeal was upheld
in the House of Lords so Denning’s dissent was not influential. The only other decision
of some note to which I could make a link was Hedley Byrne & Co v Heller & Partners
dealing with negligent misstatement. I refer to it because, although Lord Denning
was not a party to the reasons, his dissenting views in Candler v Crane, Christmas & C were,
no doubt, influential in the adoption of the majority view in Hedley Byrne. Lord Denning
himself also believed that his judgment in Candler v Crane, Christmas was his most
important. The High Trees case is regarded as the source
of the doctrine of promissory or equitable estoppel, at least in English law. In reasons
brief by modern standards, Denning J decided that the representation by the landlord that
payment of rent at the full rate would not be enforced, although not a representation
of existing fact but one as to the future, was still enforceable as a promise intended
to be binding even if it lacked consideration. The prospect that a promise to accept a smaller
sum in discharge of a larger sum, if acted upon, would, therefore, be binding without
consideration pleased him as a result of the fusion of law and equity.
The High Court of Australia through Sir Owen Dixon had adopted a different approach leading
to a similar result in Grundt v Great Boulder Proprietary Gold Mines Ltd when Sir Owen said:
“The principle on which estoppel in pais is founded is that the law should not permit
an unjust departure by a party from an assumption of fact which he has caused another party
to adopt or accept for the purpose of their legal relations. … One condition appears
always to be indispensable. … It is often said simply that the party asserting the estoppel
must have been induced to act to his detriment.” In a later, 1975, decision, Moorgate Ltd v
Twitchings, Lord Denning referred to that approach and to some correspondence he had
with Sir Owen about the High Trees decision. In Moorgate he modified his view by describing
the issue as whether it would be unjust or inequitable to permit a party to withdraw
from the assumption. I have not been able to track down the correspondence
between the two but Sir Owen had, interestingly, delivered an illuminating talk on judicial
method at Yale in 1955. Without explicit reference to the High Trees decision, but referring
to a very similar factual situation, he discussed how a judge might approach the issue in the
following words: “What might a modern court of last resort say to the claim? What might
reforming zeal do if coupled with boldness of innovation? It could hardly go as far as
denying that consideration is necessary to the formation of every simple contract … .”
After that oblique and apparently intended barb at the original Denning approach, Sir
Owen went on to consider a number of possible answers to the problem, including the application
of theories from the law of contract. He also said that the doctrine of estoppel could cover
the issue raised by the High Trees case, whether an agreement to reduce rental payments, not
supported by consideration, could nonetheless be enforced, by saying: “It is by no means
fanciful to regard the fundamental principle of an estoppel which comes from dealings between
the parties to be simply that one of them is disentitled to depart from an assumption
in the assertion of rights against the other when it would be unjust and inadmissible for
him to do so. It is a necessary condition that the second should have acted or abstained
from acting, upon the footing of the state of affairs assumed, in such a way that he
would suffer a detriment if the first party were afterwards allowed to set up rights against
him inconsistent with the assumption. It is further necessary that it should be unjust
and inadmissible for the first party to depart from the assumption for the purpose of asserting
rights.” That focus on injustice or unconscionability
and detriment did not appear in the High Trees decision. In Australia, particularly since
the High Court’s decision in Waltons Stores v Maher, the focus is clearly on unconscionability
and detriment, not on whether the promise was intended to be binding even if it lacked
consideration. In 1948, two years after the High Trees decision,
Denning J was promoted to the Court of Appeal where he remained as a Lord Justice until
his appointment to the House of Lords in 1957. Professor R F V Heuston, whose insights into
Lord Denning’s work and life repay reading, said of that period in Denning’s life: “If
the reader of the law reports had not already realised it, there were now many signs of
a powerful new mind at work. In many ways the judgments of the Fifties are classic Denning;
there is still enough respect for precedent for the analysis of the cases to be full and
careful, and the style, clear and vivid, is not yet marred by the self-conscious tricks
of the Seventies.” It was during his first period in the Court
of Appeal, before he rejoined it as Master of the Rolls in 1962, that Lord Denning himself
said that he developed his judicial philosophy. His willingness to express a philosophy has
been described as unusual. As Professor A W B Simpson said, rather memorably: “Hardly
any of those many hundreds of forgotten and curiously anonymous men, and they were men
then, who have held high judicial office in the common law system have left us even the
briefest statements of their judicial philosophies. Indeed, so far as most of them are concerned,
there is no reason to suppose that they possessed one in any self-conscious or articulate sense.
Just as plumbers may plumb for a lifetime without perplexing themselves as to what it
is all about, so too may judges judge, and most do. But from time to time there have
been exceptions, and Lord Denning is one.” Lord Denning’s expression of his judicial
philosophy was typically brief and dogmatic and I quote: “(i) Let justice be done; (ii)
Freedom under the law; (iii) Put your trust in God.”
He took as his motto when made a law lord, “Fiat justitia”, discarding the conventional
additional words “ruat caelum” on the theory that, if justice is done, the heavens
should not fall; they should rejoice. The Denning Law Journal’s take on Lord Denning’s
values is more expansive and includes the importance of developing the common law; the
need for judicial and community recognition of the importance and urgency of reform and
modernisation of the law; the importance of preserving the traditions of judicial independence,
integrity and creativity; the importance of reflecting upon the interplay between law
and morality; and the essential role to be played by the law in the defence of the individual
in the modern state. Let me deal with Lord Denning’s own three-part
formulation though, and in reverse order, starting with “Put your trust in God”.
He was a devout Anglican all his life, loving that church’s worship, liturgy and language.
For many years he presided over the Lawyers’ Christian Fellowship. In one of his books,
The Changing Law, he wrote about the derivation of many of our fundamental legal principles
from Christianity. He began by discussing the obligation to tell the truth and keep
one’s promises. The latter he contrasted with what used to be called contracts of adhesion,
where the party with less economic strength has no ability to bargain about the terms
but must either accept them or go without the benefit of any contract at all. He drew
on the views of St Thomas Aquinas to excuse holding a party to the letter of such a contract
where unforeseen circumstances have arisen which make it unjust to enforce it against
him. He regarded that as an area where the law had overreached itself with contracts
as it had in respect of the interpretation of statutes. His view was that literal interpretations
of contracts or statutes could lead to departures from quote “real” unquote truth. He promoted
the purposive approach to the construction of statutes now adopted in Australia rather
than the existing common law rules requiring interpretation according to the grammatical
and ordinary sense of the words. He equated our conception of justice with
the Christian teaching of love for God and your neighbour which he illustrated by Lord
Atkins’ decision in Donoghue v Stevenson and the discussion there, derived from the
parable of the Good Samaritan, about who was the neighbour to whom a duty of care was owed.
He also discussed punishment for crime in the Christian context, treating the abolition
of capital punishment as a reflection of a more Christian outlook on the right way to
punish offenders, focussing on the reformation of the criminal. He drew attention to the
need to recognise that society itself is responsible for the conditions which make people criminals.
In that context, however, he also stressed individual responsibility, including repentance.
In discussing criminal responsibility, he focussed on the need to show that the offender
had a guilty mind, the rule of English law from the time of Henry I, equating crime with
sin. He justified the rules relating to criminal
insanity by reference to Christian principles so that if the offender was driven by some
blind impulse but which he knew, nevertheless, was wrong, he was not excused in law. Then,
in addressing the relations between man and the State, he drew on the primary principle
of Christian ethics in politics as respect for every person simply as a person. He illustrated
this with the words of the 13th century cleric and jurist Henry of Bracton that “the King
is under no man, save under God and the law”. Those were the words used by Lord Coke, in
response to Charles I’s views on the divine right of monarchs. In modern terms they mean
that the executive power is under the law. Lord Denning contrasted our system in that
context with modern totalitarian systems of government.
He used Christian principles to argue against the evils of excessive accumulation of wealth
and opportunity in the hands of a few. He referred to the creation of the welfare state
in Britain and the enforcement by the courts of obligations of employers, to provide safe
conditions of work to their workers and compensate them for injury. He also discussed however
the dangers posed by the welfare state in increasing governmental powers over the individual.
Finally, he referred to the institution of marriage and the availability of divorce since
the State abandoned the principle of indissolubility. In concluding his views on that he said: “People
have come to regard divorce as a matter which can be arranged between the parties. In so
doing, they only too often disregard the interests of their children and pursue their own selfish
ends. Every thinking person is profoundly disturbed by this state of affairs. It has
a grave effect on the family unity and on the national character …”
This is an example of something I mentioned earlier, the problems in the application of
the law caused by the confusion of personal prejudice with an ideal of justice. Another
example comes from his refusal to accept the decriminalisation of homosexual acts between
consenting adults. He was vociferous about that in later life.
This mixing of personal prejudice and an ideal of justice may be exemplified by his decision
in Ward v Bradford Corporation where he said this, in an apparently ex tempore decision
about a young woman who had been expelled as a trainee teacher: “If there were any
evidence that Miss Ward had been treated in any way unfairly or unjustly I would be in
favour of interfering. But I do not think she was treated unfairly or unjustly. She
had broken the rules most flagrantly. She had invited a man to her room and lived there
with him for weeks on end. I say nothing about her morals. She claims that they are her own
affair. So be it. If she wanted to live with this man, she could have gone into lodgings
in the town and no one would have worried, except perhaps her parents. Instead of going
into lodgings she had this man with her, night after night, in the hall of residence where
such a thing was absolutely forbidden. That is a fine example to set to others! And she
a girl training to be a teacher! I expect the governors and the staff all thought that
she was quite an unsuitable person for it. She would never make a teacher. No parent
would knowingly entrust their child to her care.”
No doubt the decision was legally justifiable as Ms Ward had broken the rules. But Lord
Denning’s statement that he was saying nothing about her morals was a trifle disingenuous! Lord Denning’s second philosophical plank was freedom under the law. From an early stage
he insisted that the common law needed to develop better remedies for judicial review
of administrative action. Those views were first expressed by him in the Hamlyn Lectures
he delivered in late 1949. He was remarkably prescient about the need to develop better
administrative remedies and eloquent in describing the forces demanding better redress in the
courts for the abuse of governmental power. He strongly endorsed Lord Atkins’ dissenting
speech in the wartime decision of Liversidge v Anderson. Contrary to the majority and using
vividly pointed language directed at his judicial colleagues, Lord Atkin said that the courts
could examine the reasonableness of a minister’s belief that a person was “of hostile associations”.
Lord Denning drew attention to the willingness of the then regime in the USSR to encroach
on the liberty of the subject. He also relied, despite his reputation for Anglo-centrism,
on French law to show how the control of the executive can be handled differently, not
only in respect of administrative law, but also in the regulation of abuses of power
by police. In concluding his discussion about remedies
for abuse of power, he recommended the replacement of the old prerogative writs, mandamus and
certiorari, and actions on the case by new and up to date machinery, by declarations,
injunctions and actions for negligence administered through the courts rather than in Parliament.
Those views have been adopted legislatively or by procedural changes in many jurisdictions
and show one aspect of his continuing relevance separate from the effect of his decisions.
These themes about the abuse of power remained important to him for the rest of his life
and figured prominently in later writing by him. In a controversial book published by
him just before he retired, ‘What Next in the Law’, he said: “…the most important function
of the law is to restrain the abuse of power by any of the holders of it – no matter
whether they be the Government, the newspapers, the television, the trade unions, the multi-national
companies, or anyone else.” And now to the first of Lord Denning’s philosophical
principles, “Let justice be done”. It gave rise to the most controversial aspects
of his career. To the outside observer, his view of doing justice according to law depended
very much on his subjective view of the merits of a case. As he said himself: “If there
is any rule of law which impairs the doing of justice, then it is the province of the
judge to do all he legitimately can to avoid that rule – or even to change it – so as to
do justice in the instant case before him. He need not wait for the legislature to intervene:
because that can never be of any help in the instant case. I would emphasise, however,
the word ‘legitimately’: the judge is himself subject to the law and must abide
by it.” It was not long after his elevation to the
Court of Appeal that his decisions began to draw pointed attention from the House of Lords.
In British Movietonews v London & District Cinemas, the Court of Appeal had suggested
that parties were no longer bound by a contract if there had been an unexpected turn of events
which might fall within the literal meaning of the words used but outside the true intention
of the parties. Viscount Simon said that Lord Justice Denning’s judgment included “phrases
… which give us some concern” and went on to say that the authorities relied on by
Denning LJ did not support the propositions he advanced.
Another criticism was made by Lord Simonds in Magor & St Mellons v Newport Corporation.
Denning LJ had said that the Court’s role was to find out the intention of Parliament
and of the Ministers and carry it out as part of the process of statutory construction and
that it could do that better by filling in the gaps and making sense of the enactment
than by opening it up to destructive analysis. Lord Simonds said that appeared to be a naked
usurpation of the legislative function under the thin guise of interpretation. There was
speculation in Australia, apparently, whether Denning LJ might be removed from office.
Nonetheless, when a vacancy occurred among the Law Lords in 1957, Denning was appointed
to the position. He stayed there until 1962 when he returned to the Court of Appeal as
Master of the Rolls. He did not enjoy his time in the House of Lords as much. There
appears to have been some personal tension between him and Lord Simonds, who continued
to criticise his views. In private correspondence with Sir Owen Dixon between 1955 and 1957,
Lord Simonds said, of Denning, that he was personally attractive and had great learning
but that he regarded him as a “judicial menace”. Other observations by Lord Simonds
were: “He is learned, very learned, in the sense that he knows as much law as the rest
of the Bench put together and has it at his finger tips. But if you add, that, if so,
much learning hath made him mad, I can only respectfully concur.”
And, seven months after Denning became a Law Lord in 1957, this again to Sir Owen Dixon:
“Denning himself is a thorn in the flesh – there is in him not only a passion for
display but a faultiness of judgment which may become dangerous.”
Sir Owen wrote back to Lord Simonds in 1956 that Denning baffled him: “He seems always
to be setting principle at defiance. I do not think wild horses would get a majority
of the High Court to follow some of his decisions.” Let me move on!
The House of Lords still regarded itself as bound by its own previous decisions until
1966, something that Lord Denning struggled to accommodate with his views about the need
to loosen the doctrine of precedent, particularly in the House of Lords.
The most severe criticism of him made in those House of Lords years was his joining in the
unanimous decision in DPP v Smith on the meaning of mens rea or criminal intent to establish
guilt for murder. That decision was trenchantly criticised by Sir Owen Dixon in Parker v The
Queen, the decision which ended the practice by which our High Court had previously followed
decisions of the House of Lords. Sir Owen thought that decision contained propositions
which he could never bring himself to accept and Sir Wilfred Fullagar characterised it
to Sir Owen by saying that they were “hanging men for manslaughter in England now”.
Lord Denning was later embarrassed by his agreement in DPP v Smith, saying that he would
have liked to have delivered a separate judgment but was discouraged from doing so. That encouragement
to agree with other decisions appears to have been one of the reasons he did not like the
work in the House of Lords so much. When asked later why he moved to the Court of Appeal
he replied that he was too often in a minority, saying that in the Lords it was no good to
dissent. On other occasions he said, rather more archly, that the odds of justice being done increased when he was one of three rather than one of five. After his return to the Court of Appeal in 1962, his prominence increased. He had been
in demand as a speaker particularly since the Hamlyn Lectures in 1949 and that demand
became international. He became a significant public figure in 1963 when appointed to conduct
the Profumo inquiry into alleged misconduct by a Cabinet minister. At the time he was
described in The Observer in these terms: “It has been left to Miss Mandy Rice-Davies,
one of the prostitutes at the centre of the business, to bring home to the public what
every barrister, who ever appeared before him knew already: that he is ‘quite the
nicest’ judge. Charming, infinitely courteous, always anxious to help: this is how Tom Denning
has always been known at the Bar. Tall and thin, neat and unobtrusive in his dress, sociable
enough but not in the dining-club, old-boy reunion, City banquet sense, he has always
been a bit of a lone wolf, incredibly hard-working, ruthlessly honest – the whitest lie pains
him – dissenting because it is in his nature and his upbringing to bear witness, to keep
faith, to do duty, a little proud in his independence.” He received many honorary doctorates from
universities throughout the world and published regularly towards the end of his judicial
career. By then, however, his popularity had begun to wane.
There was a suggestion that, as Master of the Rolls, he would pick the cases on which
he sat, particularly the ones where he believed the law needed to be changed.
To facilitate that he would chosen the judges to sit
with him from those who, he believed, favoured change in the law. On one such occasion, however,
the tactic did not work. The two judges sitting with him on a case in which the decision had
been reserved came to discuss it with him. The first judge to speak said he did not agree
with Lord Denning’s already circulated draft judgment in the matter and would write his
own reasons. Lord Denning told him: “That’s alright, you can dissent”. The other judge
then told him that he too disagreed with Lord Denning’s reasons to which, ever confident,
he replied: “Oh that’s fine. You can both dissent.” Never fond of the doctrine of precedent, he had embarked on a campaign to free the Court
of Appeal of its obligation to follow its own decisions. His theory was that the relaxation
of that rule in 1966 by the House of Lords also applied to the Court of Appeal. In Cassell
v Broome, he had invited the Court of Appeal and trial judges not to follow Rookes v Barnard,
a clear decision of the House of Lords on the proper scope of exemplary damages in defamation,
asserting that the decision had been given per incuriam, in ignorance of an earlier decision.
He was not alone in his dislike for Rookes v Barnard, as our High Court refused to follow
it in Uren v John Fairfax & Sons. Denning was severely rebuked for his heresy by the
House of Lords, however, and also rebuked in Gouriet v Union of Post Office Workers
for suggesting that the courts could control the decision of the Attorney-General to lend
his name to relator proceedings. Lord Diplock observed, probably referring to Lord Denning’s
dissenting remarks, that the failure to recognise the distinction between private law and public
law below led to “some confusion and an unaccustomed degree of rhetoric”. Professor
Heuston certainly took the remark as a reference to Lord Denning and had this to say: “Denning’s
style had always been unusual: by the mid-seventies it was not quite so admired as it had been.
The structure of the judgment was as clear and sound as ever, and often praised by his
fellow judges, but a certain striving after effect had become noticeable in the style
rather than in the arrangement. There were few or no subordinate clauses, and sometimes
no verb in the sentences. So the style was lacking in cadences. Also the terse vivid
opening sentence, to which he himself attached so much importance for gripping the reader’s
attention, often seemed inappropriate, especially in cases of severe personal injuries. Parodies
began to appear – sometimes quite amusing.” The popular press had also sharpened its focus
on judges, even in the civil cases in which Lord Denning specialised. Rebukes of him by
the House of Lords received great publicity and sometimes provoked vigorous responses
from Lord Denning himself. A contributor to an academic journal in 1980
said: “We are witnessing the tragic drama of a great judge whose acute sense of rightness
has become a conviction of righteousness, whose consciousness of the need for justice
has led him to become a self-appointed arbiter in the politics of society and whose desire
to draw attention to defects in our law has more noticeably drawn attention to himself.
Aided and abetted by the media, whose motives are not coincident with the interests of justice,
of the legal system nor of the noble judge himself, the process has accelerated and the
Master of the Rolls now takes his daily place alongside the good and the bad in the nation’s
headlines.” By then the subject of his potential resignation
had become an issue. He was much more senior than the other judges and less likely to pay
much attention to what they said. Professor Heuston says that, by then, he seemed
to be in a state of some intellectual and social isolation, not having any younger judge
who could act as friend or adviser. Professor McAuslan made a perceptive comparison of Lord
Denning with Lord Mountbatten, saying: “What Lord Mountbatten was to the Royals, Lord Denning
is to the judiciary; unorthodox, larger than life, a great performer, eager to emphasise
his own considerable contributions to public life and present them in the best possible
light ….” Professor Heuston went on to say to that list of shared qualities might
be added a certain absence of humour about self. Lord Denning’s resignation came finally in 1982, in his 83rd year. It was precipitated
by the publication of his latest book, the fourth in three years, titled ‘What Next in
the Law’. It created a hullabaloo. He called into question the suitability of immigrants
and non-whites for jury duty. It incorporated remarks he had made a year before, that the
black defendants’ lawyers in cases arising out of the Bristol race riots had made their
jury selections and objections based on race. Those remarks had been shown to be false.
He went on to say that: “The English are no longer a homogenous race. They are white
and black, coloured and brown. They no longer share the same standards of conduct. Some
of them come from countries where bribery and graft are accepted as an integral part
of life: and where stealing is a virtue so long as you are not found out. They no longer
share the same code of morals. They no longer share the same religious beliefs. They no
longer share the same respect for the law.” Earlier in 1982, he had controversially refused
to find that Sikhs were protected as a “race” under the existing anti-discrimination law,
a decision overturned by the House of Lords. In 1980 he had ranted against the Birmingham
Six in the case of McIlkenny saying: “This case shows what a civilized country we are.
Here are six men who have been convicted of the most wicked murder of 21 innocent people.
They have no money. Yet the state lavished large sums on their defence. … In their
evidence they were guilty of gross perjury. Yet the state continued to lavish large sums
on them – in their actions against the police. It is high time that it stopped. It is really
an attempt to set aside the convictions by a side-wind. It is a scandal that should not
be allowed to continue.” It was later established that the Birmingham
Six had been set up by police, that their confessions had been coerced and that they
had no part in the bombings. All of these events attracted significant
publicity, the controversy over the contents of the book being the last straw. The published
version was withdrawn and replaced with the offending parts excised. Lord Denning released
a statement through the Clerk to the Master of the Rolls saying that he had intended for
some time to retire by 30 September 1982 because of his advanced age, but that in light of
the recent controversy which had arisen over his book it was decided to bring the announcement
forward. He continued sitting until the end of July 1982.
Rudy Narayan of the Society of Black Lawyers offered an elegant footnote to the controversy
created by Lord Denning about coloured jurors by saying: “Lord Denning remains one of
the greatest judicial minds of his century. A great judge has erred greatly in the intellectual
loneliness of advanced years; while his remarks should be rejected and rebutted he is yet,
in a personal way, entitled to draw on that reservoir of community regard which he has
in many quarters and to seek understanding, if not forgiveness.”
These idiosyncrasies of Lord Denning’s later years illustrate the fundamental issue raised
by the first principle of his judicial philosophy, “Let justice be done”. What is justice
if it is avowedly idiosyncratic to the extent that it could be with Lord Denning? When those
idiosyncracies include apparently serious prejudices the danger to the rule of law becomes
significant. Sir Owen Dixon’s discussion of judicial
method back in 1955 in the context of the High Trees decision concluded with what can
only be regarded as pointed remarks. It is an error, he wrote: “If it is believed that
the technique of the common law cannot meet the demands which changing conceptions of
justice and convenience make. The demands made in the name of justice must not be arbitrary
or fanciful. They must proceed, not from political or sociological propensities, but from deeper,
more ordered, more philosophical and perhaps more enduring conceptions of justice. Impatience
at the pace with which legal developments proceed must be restrained because of graver
issues. For if the alternative to the judicial administration of the law according to a received
technique and by the use of the logical faculties is the abrupt change of conceptions according
to personal standards or theories of justice and convenience which the judge sets up, then
the Anglo-American system would seem to be placed at risk. The better judges would be
set adrift with neither moorings nor chart. The courts would come to exercise an unregulated
authority over the fate of men and their affairs which would leave our system undistinguishable
from the systems which we least admire.” Sir Owen later wrote to the leading American
Supreme Court judge, Felix Frankfurter, telling him that, to a certain extent, he was aiming
at Denning LJ in his remarks. However, rather to his consternation, he had received a letter
from Denning shortly after the talk saying he completely agreed with everything Dixon
had written in the address! Let me conclude. In retirement Lord Denning
continued to give interviews, including a notorious one in 1990 with A N Wilson from
the Spectator. He also continued to attract attention, sometimes for all the wrong reasons.
One of the saddest episodes of his later life was his participation in a television show
hosted by the since disgraced paedophile, Jimmy Savile. The subject was the trial of
Enid Blyton’s character “Noddy” where Lord Denning presided in his dotage and in
full judicial regalia. I only watched a little of it. I just thought it was so sad. His latter years
show the virtue of the statutory retirement age.
Lord Denning in his prime was a man of great warmth, courtesy and charm, much loved by
those who knew him well. He was a great judge in so many respects, particularly in his recognition
of the need for change and development in the legal system. His best judgments reflect
a high degree of scholarship and a talent for expressing the law clearly and simply.
Many of his decisions, even if not ultimately persuasive as precedents, have provided inspiration
for legislative change. So have his other writings. I have mentioned the modern development
of better legal remedies for judicial review of administrative action as one example. Another
example that springs to mind is the legislation that has entrenched the rights of spouses
to share in matrimonial property held in separate names. Early in his career in the Court of
Appeal he had argued that a deserted wife had an equity in the matrimonial home, a stance
he maintained “despite some legislative setbacks and regular rebuttal by the House
of Lords” and which eventually attracted statutory intervention.
His decisions may have been affected by hidden or old-fashioned prejudice, particularly because
of his confidence in his own judgment of what was just, the strength of his self-belief.
Any judge, however, needs to faithfully re-examine his or her assumptions about life and society
in the light of new knowledge to avoid making decisions inconsistent both with justice and
the law. To adopt the words of the monk and writer, Thomas Merton: “One must face the
fact that ‘good intentions’ are only good as long as they are faithfully re-examined
in the light of new knowledge, and in the light of their fruits. … The ethic of subjective
‘good intentions’ has been judged and found wanting. We must refocus on the objective
results of our decisions!” Lord Denning’s subjective good intentions
needed a healthier dose of legal objectivity to secure his place in the legal pantheon.
Thank you. (APPLAUSE) Justice Douglas has recalled for us why so
many of us regard Lord Denning as a hero. He has tempered that with his review of those
less attractive aspects on his character. Which became so evident later in his life.
Lord Denning’s turn of phrase was not confined to his judgments. In an interview he gave
to the Daily Mail he was asked his opinion of the workings of parliament. He said, “the
House of Commons start it’s proceedings with a prayer. The Chaplin looks at the assembled
member with their varied intelligence and then prays for the country”. The influence
of Lord Alfred Denning will be with us for a long time. Justice Douglas’s iridation
tonight, he eloquently reminded us why that is so. As a token of our thanks. Sorry, it’s
domestic (laughs). Would you please join me in expressing our appreciation, [Justice Douglas
– It’s French]. He got the wrong one (laugher (APPLAUSE). The final in this excellent
lectures will be presented by Justice Edelman when he speaks about one of England’s greatest
judges Lord Bingham. It will take place here on Tuesday the third of December. I invite
you to join us then. I invite you to join us now for refreshments in the gallery. Good
evening.

Law School Horror Stories


– You can swim in my tears, that’s how much I cried in law school. (quirky music) – So I went into law school
doe-eyed, ready to work hard, but not really understanding
what I was getting into. – I feel like I blocked a lot of it out. Law school is traumatizing. – Basically, you’re
with the same 80 people for all of your classes the
entire first year of law school. You would end class and stand outside and just like talk to each
other about law school. – Little groups, you
huddle in little groups about how much you hate law school, and then shuffle over
to the library together. – Yeah, together. Like, alright, I guess I’ll study now. – Like little flamingos. – So cold-calling is
basically, you’re in class and then the professor calls on people. So he might say Tina, “What
was the courts rationale?” and like, “Well what did
the dissenting opinion say?” And not only question, so
you know if your professor called on you, you’re
going to be cold-called for the entire case. So you better know it inside and out. Make inferences about it. Like have an informed,
critical opinion of the case. And he might leave you for
a little bit and come back and be like, “Tina, what
happen in Paul’s graph?” – Right, and you think you’re safe, for that moment that he leaves. You’re like, I got this, I slay, queen. You walk away thinking your Beyonce and then come back and
get hit in the face again with questions that you can’t answer cause you have no idea what’s going on. – So this class, he did
a little differently. He would right a letter on the board. And so you would walk
in, look at the board, and it’s like, “Oh yes, the letter is “S”, my last name starts with a “C””. I’m safe for today. You knew right at the
get-go if you weren’t going to be on-call so
you could kind of relax. But if your letter was on the
board you’re just like scared. I had never missed a class,
people don’t miss class in law school also, by the way. Anyway, so I missed this class because I had a doctors appointment. That was the day my
letter was on the board and I had text messages
from like 10 people in class asking me where I was. So I guess my professor called
my name like three times and I wasn’t there and it
was actually so humiliating. The professor I don’t think
even remembers that probably. But every single day feel so
ashamed, embarrassed, scared. Like nothings going to
happen if you get cold-called and don’t know the answer. – It is definitely public shaming. – Yeah. – On my birthday, we took
our first criminal law exam. I slept through my class the
next day, through that morning and I missed class. So twelve o’clock rolls around, I wake up, I don’t really know how sober I am but you can’t miss class. So I throw on my girly
pink running shorts, I run from the mission district through it to the tenderloin, which is
like a 10, 15 minute run. So I’m covered in sweat, I
have Pedialyte as my breakfast, and I have my aviator sunglasses
and I stroll into class and I’m like, yes I got this. I don’t got this. So I’m in class, everybody
is already staring at me because I’m suppose to be on-call. It’s civil procedure, I have
no idea what’s going on. The professor is sitting
in front of our lecture. He turns to me and we make eye contact and for a moment in my life I’m like, this is it, this is when I go, Mom. I’m sorry, I love you, I’ve shamed you. So I felt myself about to throw up and we’re locking eyes and I
can’t feel it like a chipmunk. Just culminating in my mouth
because I’m so nervous. By this time I’m a marathon runner, I just ran to the tenderloin,
I just ran to school. So I run into the bathroom
and he didn’t even call on me. So I puke in the bathroom for no reason and I’m too ashamed to
go back into the class. So my ride or die law school homie, she luckily picks up my stuff
and just kind of walks it out and everyone just forgets
that ever happened. It was traumatizing though,
ruined that bathroom. So I was sent to Texas for Moot Court and it was the Houston competition. – Moot court is like mock trial, but it is a little different. – It’s less exciting
and theatrical, I think. – We don’t get to yell out, “I object, – Yeah, no. – “You can’t handle the truth.” One really old lawyer man comes up to us and he
was just talking to us, it was really early in the morning and he looks at me and goes, “I’m surprised they let women argue.” Silence. From our table. And we’re from San Francisco
area so we’re not use to the type of discrimination or at least, I’m not use to the type of discrimination that I would have to face in Texas. And without missing a
beat, I just looked at him and was like, “I look forward
to surprising every body.” And it was something
that I necessarily wasn’t prepared for coming into law school. I didn’t realize how
much biased and prejudice I would get from current attorneys, especially being a woman of
color, first generation law. But it was something in Texas that kind of hit me in the face. And that was my terrible experience. It just threw me for the whole competition so I did end up rolling my
eyes and saying “Mhm” a lot. I got a little feisty, I got
a little attitude over there. – Yeah, I would leave, I feel like. – We didn’t get very far. – Yeah that’s for the best probably. – Yeah. (laughing) – I’m banned from Texas. – Yeah, goodbye. I had an exam, it was my
first year of law school, my first semester, so it
was one of my first exams. I studied a lot, I felt fine. Just as I’m ready to get into the exam I go to the library to just
review things very quickly before going into the classroom. And I look over to my left
and there’s a girl in my class a smart girl, like someone
who should be feeling better than me, is
sobbing in a study room. Like crying, sobbing. That just really tore up my life. – Confession session. It wasn’t me. I walked into my civil procedure class, which is funny because I’m attorney now and I do nothing but civil procedure. But in law school it’s terrifying. I walk in, I sit down. My little sister was hyping me up all day. She was just like, you got this, you slay, walk in there like you own it. I do and then I open the
first page of my booklet, I look down and I just start balling. In the exam room, just crying. And I try to look cute because I figure if I’m going to fail, I’m
going to look fly as I fail. And I did it, mascara
was running everywhere. My cat eye was not cute like
it is, it was everywhere. Half of my eye brow wasn’t even done, I don’t even know how that happened. It was the trauma of civil procedure and so I had to work through tears. And my laptop, I was like great, now there’s water everywhere, it’s gonna explode then I’m going to burn the school down accidentally. So that is my confession
about how I cried. – So you did cry? – I cried. – It really does break you
down, like really tests you. – I don’t cry now, anymore. Except when I’m watching This is Us. – You’ll cry a lot, you
won’t recognize yourself.

Shariah & Islamic Identity Politics



many people waardoor wij articulate open my own eyes wonder why should be with you seem to bewolken langer of moslims in twee violent protest met great passion while other use a mac met deafening silent and feel much of this is due to the nature of rutjes ardennen die politics en dat zelf in major beslaan edgy collecteer ideology met standin een grinder nobel opposition to a style nani sonic wereld dus mij also be cause i wish you so much easier te proesten finger adwords than two introspect en deal wordt de dysfunctions naar intro motor islam ik scriptures and traditions met kunt u de grocery je koorts een moslimfamilie die zijn europe moslims avond zei er islam is een religion er is concern met mary's of justice and the glory houden en de wie reconciled is zelf perception met de reality al die sla mix color en klerkx vermoording in justice and inequality in show neer zoals moslim me joey sides some forms of seriëel aa arnhem gradually becoming in chocola is in britain and other 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bos langs het strikes het en very heart and we shall make out there is a misdaad ze paulus de biceps charlie en johnny ving de sharia we slaan is not supposed to be secondary de de chemische balans of you mens islam according to islam eens in het essence in nieuwbouw en iets arno en al els master venture lees het met to get we wali ben lia dorana het liefst daar is mark wie geweest moslim waar trapte wie wie wie hoewel hij heeft massa hebben choice de wii speak up voor de rights of individuals aan mama's ook doe ik een 10 0 x hebt een collectieve heeft kennedy politiek thema's never question or challenge door maria kast want support voor collectieve eyes misschien mijn therapie politieke islam i declare mezelf christus en mary sorry in iedere dennis lange communities can'st wie duim in his birth 11 4 of die norse sari's van oude familie een project de is er acceptable to leven van school life in 4th echelon wie haar de privileged afleiding en legal manager with free society for our freedom security and protected by zakje lilas [Muziek] is wie was hier in open saai is don't speak at en dronk trouwens de dagmaatvoering master en 13 en hoewel [Muziek]

College of Business, Government and Law



The College of Business, Government and Law has a reputation for academic excellence and innovative thinking. More than this, our aim is to cultivate strong, ethical, responsible, and professional values that affect the very fabric of our society. We foster collaboration and the development of ideas in the areas of transformational and technological change, economic development, financial literacy, criminology, socio-legal studies, law, public administration, electoral politics and engagement, international affairs and security. We have built teaching methods to provide students with work ready skills, and to create forward-thinking leaders who want to make an impact, both here in Australia, and around the world. A place for student success.

Early Elizabethan Society 1558-1588: Government and Society



hi there guys so today I'm gonna look at Elizabeth government as the situation in the country the way society was structured at the beginning of an isthmus reign so when she becomes Queen in 1558 he inherits a government that has been up until this point run by Mary the first Catholic leaders so well the key thing she needs to do is to quickly get her own leaders into the place the structure of the government was quite complicated elizabeth is the supreme ruler she is the person who makes all the decisions she does have a parliament and they do provide advice she's got the House of Lords which we have today and she also has to have a comment but it's really important that you know that the House of Lords was mostly made up of the noblemen and bishops of the day well as the House of Commons was elected but very few people could vote for example women were excluded from the vote people who didn't own land or exclude from the right the fact unless you are a wealthy noble with no way you could like Parliament was in charge of passing laws and approving taxes however they very rarely argued with the cream all of these laws that were passed were then put into place by the criminal system of the day so large landowners were usually appointed justices of the peace they were not paid for their role and it was really in their interest to keep law and order in in the local area and they did sometimes hear local court cases above them you have the Lord Lieutenant even noblemen who were appointed by the government and governed English courtiers they raised local militia if needed and Jerry oversaw that the law is being followed in the country then much closer to Elizabeth we had the court which was mostly made up of noblemen – the members of the court we're usually Elizabeth friend and her advisors people she had specifically chosen their job really with make Elizabeth look good they showed off her well and they gave her advice on day to day matters they could also members of the Privy Council which is the other key group of people who were in charge of advising Elizabeth these were again nobility Elizabeth chosen friends they were in charge of helping Elizabeth to make decisions about the country they monitored Parliament they made sure that the justices of peace and the overseers were doing their jobs I'm making sure that law and order and the country was secure okay so Elizabethan society was very unequal there were those who were able to say no to old lie meanwhile there was some extreme poverty in Elizabeth England there were many people who were homeless or vagrant wandering from place to place asking for support so once you're out in the countryside there was a particular structure it was the nobility right at the top of the tree quickly followed by the gentry who are also landed people but they're not nobility they're not lords and dukes and so on they're just landowners below then we've got the farmers if you can owned their land so these people were known as yeoman they owned their own land and they farmed their own land but below them were the tenant farmers these people did not own their land and they have to pay rent in order to use the land for farming then you get the people who have no land whatsoever the people who do the main jobs the neighborhood out in the countryside and these people were really quite cool and again as I said to you there are those homeless people and the vagrant and people really much as they do today look down on these people tear into a little bit different to the countryside we kind of imagined I think Elizabethan being this kind of Placid countryside England but it really wasn't the social hierarchy in towns was much more based on Commerce so at the top of the tree in the towns you've got the merchants these are traders who become extremely wealthy many of them are in charge of importing and exporting particularly exporting things like English wool which is really marketable around the country below the merchants these incredibly wealthy people were then the professionals the people we think has been professionals today lawyers doctors and also the clergy phone to this category then you had some of the really high skilled craftsmen people who could make intricate beautiful things silversmith Taylor's carpenters all those people then fall into that next category these are the people who own those businesses and below them are the people that they employ the skilled employees of those craftsmen and then finally you've got again your laborers and your unemployed people people have got no regular work remember there's no contract you can get here you can't get a permanent contract on a job you're basically turning up every day and hoping that someone will give you a job so in terms of being the law there wasn't a police force as we know it today there is quite simply a local watchman who sort of just basically reports on things that people are up to and he reports to the justice of the peace so he goes and he tells just as a piece was going on and if you're not attending church on a Sunday or you get a bit drunk and rowdy in the pub at the weekend you get dragged before the justice of the peace if you commit crimes more serious than that then you might go up against the courts but usually most things are dealt with us a local level okay that's everything today Swift introduction into Elizabethan society check out my other videos to see what are the problems Elizabeth inherited when she became Queen I've been the history teacher you can follow me on twitter at the histy you can also email me directly if you've got any specific questions don't forget to subscribe and like below and if you've got any comments or questions that you'd like me to deal with in the future please sit them in the comment and I will be happy to help I'll see you all next time you