Introduction

THIS COLLECTION OF essays possesses two curiosities: first, the essays derive their origin from a multi-faceted practice as a lawyer in public fora; second, the author’s aim to influence the reader on law and moral issues.

My range of activities, by any standards, was expansive. I began practice at the Bar in 1952, a civil law practitioner of modest aims; it lacked any venture into the criminal courts, yet I made their nodding acquaintance through my lobbying for the abolition of capital punishment in 1965 and indulging in penal affairs through the Howard League for Penal Reform. This led to my first public appointment, as a member of the Home Secretary’s Advisory Council on the Penal System (1966-78). The emerging vision of a civilised penal system was accompanied by an interest in crimin­ology and a post lecturing to aspiring social workers at Bedford College, University of London (1961-81).

The judicial element was not prominent, although it emerged occa­sionally, if only to taste its habits. Quite exceptionally for a practising lawyer I opted to be part of the lay magistracy. When the City of London Magistrates’ Court was transformed into a Bench that was fully occupied by non-aldermanic members in 1969, I sought to be appointed and remained so until 1981 (a reference to my participa­tion in adjudication on lesser crimes is alluded to in an essay).

My association with academia remained a constant theme in my blossoming practice, only entering into criminal practice after I took silk in 1970. It was in the late 1960s and thereafter that I devel­oped a growing practice in judicial review and administrative law. The fracture in legal practice thereafter was unexpected. In 1984 the London Borough of Brent invited me to lead the team inquiring into the abuse of Jasmine Beckford at the hands of her ambitious stepfather. Public inquiries became a staple diet for the next 20 years, mostly in the capacity of chairman-led inquiries. Interspersed was a part-time chairmanship, from 1987-94, of the Mental Health Act Commission, a watchdog body for the detention of mental patients, but without any executive powers of release from mental hospitals. Only a short sojourn as the chairman of the Press Council (1989-90), the newspaper industry’s self-regulatory system, inter­vened as a continuing participant in media activities.

The beginning of the twenty-first century beckoned a retreat from professional work. The years since 2004 prompted thoughts of recollection and reminiscences of legal and other practice. Hence this collection. But why do I want to put on record what I had done, or not done? I began to contemplate explaining myself. Here it is. Whatever may be the profession’s judgment on my forensic efforts, often on behalf of clients who appeared to be less deserving of jus­tice than their fellow citizens, my motivation, in and out of the courtroom, has always been dictated by a passionate desire to effect change through persuasion, and not by any executive power that might be invested in me.

John Stuart Mill wrote that the only purpose for which power can be rightly exercised over any member of a civilised community against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do, or to forebear to act, because it will be better for him to do so; or because it will make him happier or contented. In the opinion of other reasonable persons, to do otherwise, or even simply be right, is unsustainable. It is absolutely right to say that Mill’s ‘Harmful Principle’ is a moral argument, and does not encom­pass its pragmatic application. Many people - and I am one of them - choose freely not to get themselves into trouble by espousing the application of harm to others. But nevertheless those that encounter potential trouble can be applauded for their non- utilitarian defence of the Harmful Principle of John Stuart Mill. Power is necessarily or justifiably exercisable, but only at risk to others, and under offi­cial regulation or recognised authority. An official position involves the exercise of implied power, with all its concomitants.

While I never aspired to engage in political life, I was keen to influence those constructing issues of social and legal policy. The art of persuasion is for the persuader, by the use of freedom of expres­sion, to induce in his listener a cogent argument, and to engage in negotiation and discussion towards the translation of an idea, concept or other issue requiring administrative or legislative action. The fully fledged public intellectual, like the ancient rhetorician, for whom argument was a public act of persuasion, merged the disci­plines of the politician and the intellectual. Argumentativeness, I suspect, would be the characteristic most swiftly affixed to my public image (and probably by my family, in the domestic scene). The characteristic appropriately attached to me is as a casuist.

If I have to describe myself temperamentally as a public lawyer, I instinctively recall an instance in my career on acceptance from the Secretary of State for Northern Ireland in August 1992, Lord Mayhew of Twysden, of the office of Independent Commissioner for the Holding Centres, a system of detention of terrorist suspects in the Province. On taking up the appointment in 1993 (until 2000) I was escorted around one of the three centres, Strand Road, Derry. My escort was a superintendent of the Royal Ulster Constabulary (the predecessor of the Police Service of Northern Ireland), who asked me questions in a desire to pigeonhole me politically in terms of the tribal division of the populace of the Province. Was I a Catholic Jew or a Protestant Jew? I responded instantly that my interests were entirely catholic and I had spent my whole life pro­testing against authority. His cheerful acknowledgement of my professional suitability initiated a sound relationship with the police force in Northern Ireland, which had endured a stream of complaints of ill-treatment, mainly from the United States: these stopped on my appointment.

I think that I am a modern exponent of the post-war atheistic principle of casuistry, which I imbibed from Hugo Bedau’s Making Mortal Choices: three exercises in moral casuistry.¹ I had earlier ^[1] resolved to reject, throughout my life, any concept of exercising power over fellow human beings. I would agree with Sir Colin Davis, who said that ‘power is a beastly ingredient in our society’. It is the end of my journey in public life in which it is the best I can do for explaining myself. Let me shortly explain how I arrived at the decision to select the choices reflected hereinafter.

Throughout the years after the Second World War, casuistry has had a bad time at the hands of philosophical commentators. It seemed also, to all the contemporary practitioners, that I had in the formative years of my professional life pointed out that many of us were much too ready to justify what we wanted to do about moral choice; that everything depended on whatever we want is a princi­ple that one had in mind to do.

The term ‘casuistry’ is derived from casus, Latin for ‘case’, and refers to the study of individual ‘cases of conscience’ in which more than one set­tled moral principle (or perhaps none) applies. More broadly, casuistry is the use of the ‘method of cases’ in the attempt to bring ethical reflec­tions to bear on problems requiring the decision and action of some moral agent. A casuist is thus one who is trained to provide such coun­sel. Accordingly, casuistry is a branch of applied ethics. Since the seven­teenth century, however, the term has often been used in a derogatory sense, as though casuistry were a species of sophistical reasoning by means of which almost any conduct could apparently be deemed per­missible, provided only that one is ingenious enough in exploiting exceptions and special circumstances.

For the casuist, the solution to a morally problematic case is obtained by comparing and contrasting its features with various paradigm cases whose moral status is settled. Solutions to the problem cases rely both on moral principles or maxims that express the received wisdom con­cerning such paradigms and on analogies to them. The plurality of prin­ciples is a source of their actual or potential conflict, but their general reliability otherwise is taken for granted. Hence, casuistry as a method of practical reasoning tends to rely on some form of intuitionism as well as on some set of moral norms more or less beyond dispute.

The governing idea of casuistry is expressed in the second-order maxim that ‘circumstances alter cases'. As Thomas Aquinas wrote (1275): ‘The human act ought to vary according to diverse conditions of persons, time and other circumstances: this is the entire matter or moral­ity'. The method of cases is designed to take these ‘diverse conditions' into account. This is to be contrasted both with mechanical application of rigid rules of conduct and with the attempt to ground moral decision making in some grand theory of the good or the right.

The casuistic method since the 1970s is a way to investigate any case whose several moral problems ‘turn out to be nested and intertwined with each other', avoiding any singular independent principle about how they would be resolved to form a part of a general conclusion. No one doubts the methodology, but different people arrive at different verdicts. They do not invalidate the several outcomes, but they evalu­ate them and assess them in the general context. The casuistic method questions them independently; they merely delegate their batting order. As such, the casuistic method, properly understood, survives.

What brand of casuistry - particularly as one possessed of a fertile mind^[3] - would I subscribe to? I would concede, for example, that moral principles would support the comment on the propriety of self-destruction, that the physically disabled should be allowed to determine their moment of dying, and to that end lawfully seek the assistance of another: section 2(1) of the Suicide Act 1961 should be amended so as to decriminalise assisted killing. The ground of law­fulness would be that to maintain criminality in those circumstances would be disproportionate or discriminatory under public law prin­ciples. This contemporary example of legalising an issue of social policy would satisfy the casuist who implicitly accepts two strate­gies. These two supply the reasoning for pronouncing and evaluat­ing the right to life (and the limited right to die as an aspect of living). As Albert Hirschmann once wrote, the reformist motivation for deciding to end one's own life, with appropriate assistance, can qualify as either ‘exit', or ‘voice' for dealing with institutions of civi­lised society. ‘Exit', which is legally passive, connotes voting with one's feet and ticking the relevant box. ‘Voice' expresses one's dis­pleasure or dissent at governance; it operates to plead for change.

Reflecting on my fundamental approach to life I would describe myself as creatively inclined, but always fuelled with doubt and the prospect of failure. That attitude may come across as a propensity to self-subversion, because it blunders regardless of the ability to contemplate the consequence. It is as if no distinction is drawn between the sequence of events and its consequence: post hoc, propter hoc. Given their different impact of cause and effect, the author should have stopped to think before indulging the casuist’s motive. It avoids the functional uses of negative emotions - frustra­tion, aggression or inherent anxiety, such as failing to listen to the entreaties of others who exhibit concern for their fellow human beings. It is that which I describe as the power of persuasion that ignores or disregards the power of failure. I should explain.

Late in life I underwent major surgery - I am glad to say, success­fully - to remove a malignant tumour from the cavity in my lower brain. When I first emerged from the effects of the anaesthesia, I asked the surgeon, amidst my stream of unintelligible mutterings, ‘Why are bananas bent?’ (I must have been referring to my inherit­ance during youth of the Covent Garden fruit market (and the import of Fyffes bananas). Perplexed by my asinine question, the surgeon shrugged his shoulders. Irrespective of an answer to my rhetorical question, I had already mentally answered the conundrum, with the remark that nobody had bothered to go to the jungle to adjust the bananas and make them straight. Somebody who had perceived the apparent fault in the physical appearance of a valuable fruit would have bothered to take some action, economic or administra­tive, to predict the outcome of marketing the banana. One would have guessed that turning a blind eye to an envisaged wrong would have avoided potential failure.

So it has been with me. I have tried to influence without foresight of influential effect. The proposition follows, that the power of per­suasion is always accompanied by the product of failure. The mod­ern casuist who neglects the proposition employs the latter reasoning of Hirschmann’s two strategies - ‘the voice’ - and must accept the duality of the process. An outspoken project will end in success or failure, or perhaps over time, a bit of both.

I was struck recently by the primary status accorded to persuasive argument. Michael Ignatieff in his illuminating book Fire and Ashes^[4] claimed that failure in political thought is built-in to moments of success. Success, however, matters less than the simple fact that persuasion is attempted.