REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1950.tb00167.x |
| Published date | 01 April 1950 |
| Date | 01 April 1950 |
REVIEWS
FREEDOM UNDER
THE
LAW.
By
SIR ALFRED DENNING.
[London
:
TIIIS
book consists of four lectures given by Denning
L.J.
under
the
terms
of the Hnnilyn trust. The object of this trust is to mnke known to
tlir
‘
common people’ of
the
United Kingdom the privileges which they enjoy
in Inw nnd custom ‘in compnrison with other European peoples’. The
old lndy who established this trust no doubt formed her views in Victorinn
times when the superiority of the English wns only too clenr to theiiiselves,
if not always
so
nppnrent to their neighbours,
so
she may be forgiven her
cornplncency, especially
as
it has resulted in the course of lectures repro-
duced in this volume. They are, in fact, the
first
Hnmlyn lectures
to
bc
given, nnd the trustees who represent severnl of the lending University
Law
Schools nre to be congrntulnted on having secured
Sir
Alfred Denning
as
their
first
lecturer, for he possesses in lnrge measure those qunlities of
n
fair
and liberal mind,
n
profound knowledge of the Inw, and
n
capacity for lucid
exposition which mnke the English judicinry at its best second to no other.
Sir Alfred Denning wns indeed fortunate to be nble to choose
ns
his
subject, civil liberty,
a
brnnch of their law of which Englishmen hnve, indeed,
the right to be proud, nnd in respect of which it is not unfair
to
say that
the ‘common people’
of
the United Kingdom enjoy privileges which were
for
long denied to people living under Continentnl systems, nnd which even
todny nre in
n
number
of
respects not satisfactorily secured in most foreign
countries.
Although these lectures are intended for ordinary people, nnd their style
is such that any liternte person should be nble to grnsp and enjoy the grcntest
pert
of
them. they will undoubtedly be chiefly welcome within the legnl
pro-
fession, n.nd to students of politicnl science.
It
hns always nrnnzed me that
there is
so
little good writing on civil liberties: most of what there is being
tucked awny in journals and pnmphlets. These lectures do not fill this
gapthey could not do
so
in the spnce nvnilnble-but they certainly
pro-
vide
a
vnlunble genernl survey
of
the greater part of the field. The mnin
incunz nre the rights of nssocintion, nnd public gathering, which nre of grent
importance in politicnl orgnnisntion.
On few subjects hnve men written more, nnd to less purpose, thnn on
liberty.
It
is
n
conception dearer to most men thnn nny other, one for which
they nre ever rendy to die, nnd one which they nre only too rendy to deny
to their fellows. Yet it is one which eludes definition in nny satisfactory
terms. Indeed it is
a
conception which differs from one age to another, and
from one country to another. The classicnl idea of liberty wns by
110
means
thnt of the Englishman, shnll we say, in
1800.
The views held by the present
generation of Englishmen nre certninly not those of
1800,
nnd. indeed, they
vnry suhstnntinlly from one Eiiglishmnn to nnother:
if
Mr.
Attlee nntl
Elr.
Churchill were to cornpnre notes they would prohnhly find that they cliffercd
from
one nnother on the subject nlmost
ns
much
ns
they ngreed. But ttleil.
of
course, if they discussed the matter with Stnlin,
or
nny representative
Russinn Communist, they would find
n
divergence which nltogether
trans-
cended their own substnntinl disagreements.
This is not really
e
surprising situntion except, perhaps, to those
w11o
conceive of freedom in absolute terms. Since
it
is
n
conception relnting to
man in society it must clearly vnry with types
of
society, and with the pro-
gress
of
society. In enrly societies it will be rudimentary and completdy
240
Stevens
&
Sons,
Ltd.
1049.
viii
and
126
pp.
8s.
net.]
VOL.
18
17
250
THE
MODERN
LAW
REVIEW
VOL.
13
negativeindeed, the view
of
freedom
as
a
mere absence of restraint is
one which dies hard, for it is not only
a
fundamental element in the con-
ception, but one which is rensonably easy of definition in terms both of law
and of political science. But in advanced democratic societies liberty inevit-
ably becomes dynamic and positive in its content, for the citizen cannot
be
regarded
as
really free unless he is educated, eeonorriically secure, and even,
perhaps, rejoicing in good health.
It
is
obvious that the
Inore
enlarged
the frontiers of liberty become, the less satisfnctorily can it be measured
simply in terms of absence
of
restraint, and
the
mnre complicated become
the
adjustments required
to
ensure to each individual citizen the mensure of
freedom which he ought
to
have. In the past, liberty in this wider sense hns
been the privilege of minorities.
It
does not appear possible with the
resources, material and otherwise,
at
the disposal
of
society at the present time
to
wure
a
large mensure of liberty for the wide masses in the community
without some curtailment
of
the
freedom
of
those
minorities. Hence both
pnrties representing the mnsses and parties representing minorities can march
into battle under banners inscribed with
the
same word, ‘Liberty’, though
they are really out to
get
very different things.
It
is not possible to effect any complete reconcilement
of
these differing
conceptions, which, indeed, may derive from the conditions of
a
past gencrn-
tion,
and bear very little relationship to the liberty required by society at
the moment
of
discussion. Freedom must respond to ‘the felt needs
of
the times’, perhaps more than any other principle of law
or
politics, and
at
a
time when the great problem
is
the rclntionship of the individual citizen
to the State, liberty, which
is
the measure of the solution of that problem,
is
peculiarly difficult to assess. Perhaps
the
most satisfactory suggestion
which has been made for reconciling these difliculties
is
to regard liberty as
concerned with securing
a
balance between the different interests which
can, and do, legitimately exist, whether within
the
State,
or
between States.
It
may be thought, and with justice, that the considerations just outlined
are likely to
prove
soniewhat esoteric to ‘the common man’, and if Sir Alfred
Denning had devoted his first lecture to an elaboration of them, the Hamlyn
trustees might have had
n
just grievance.
He
does
nothing of the sort, but,
like a good practical lawyer, proceeds immediately to define the subject-
matter of his first lecture ‘personnl liberty’
as
‘the freedom of every law-
abiding citizen to think what he will, to say what he will, and to go where
he will on his hwful occasions without let
or
hindrance from any other
persons’,
a
definition clear enough to the ordinary citizen. Yet underlying
the greater part of
nll
his discourse the reader will find
a
philosophic con-
ception of liberty which clearly has regard to the considerations which
I
have
discussed above, and which has,
I
think, enabled him to form the balnnccd
and integrnted view of this field of the Inw which is here set
out.
The lord justice is certainly an ndherent of the
’
balance’ school
:
‘
when-
ever (says he) these interests
(i.8..
those
of
ordinary people) are nicely
balanced, the scale
goes
down on the side of freedom. In these lectures
I
hope to show how the English law has kept in the past the balance between
individual freedom and social duty, and liow it should keep the balance in the
social revolution of today
.
.
.’.
Sonic of the illustrative examples which he
works out in detail are fascinating in their interest.
He
shows
how
the
amount of
power
entrusted to police constal,les
has
been adjusted to obtain
such
a
balance, nnd traces the empirical decisions which, after giving too little
power to the police, and then too much, have finally settled down at
n
just
reasonable balance-‘ the way in which we in England have balanced conflicting
interests on this important point-the power of arrest
is
a model’. Even
more instructive is the history of confessions made to the police which is
traced at
pp.
00-81.
In his second lecture on Freedom of Mind nnd Conscience the lord
justice
seems rather to forget his principle
of
balnnce, and, for him, leans unexpectedly
-
APBIL
1960
REVIEWS
252
far
back
to
dnd
a
kind of golden age in the Inw
as
it stood under Victoria
or
even earlier.
He
dislikes the recent expansion of public mischief which
has taken place in order to cope with offences which are peculiar to
our
modern times.
I-Ie
does not conceal his satisfaction that the jury in
R.
V.
Cmnt should have acquitted the publisher of
a
strongly anti-Semitic article,
and indicates that he thinks the conviction of the prisoner in
R.
v.
Leese
of
public mischief for
a
similar publication wns quite wrong. But where is the
Whipped up to
a
state of bestial sadism by newspnper articles
which freedom
of
the press,
so
called, in Germany allowcd to go unpunished
and unchecked, the Nazi thugs eventually exterminnted some six million Jews.
I
find it diflicult to understand how restraining violence of this type can
properly be regarded as an interference with
the
freedom of the press-such
unfettered criticisni is not liberty
at
all but licence, and offends fundamentally
against that very doctrine of balance to which in his earlier lecture the lord
justice attaches such iniportnnce.
I
would even suggest that it is really
doctrinaire liberalism
of
exactly the same type
as
produced dccisions such
as
.Xayor
of
Bradford
v.
Pickles,
which elsewhere in the book are subjected to
well-nieritcd contempt. The anti-Semitism in the
Cnmt
Cme
was no doubt
11
mild iiffair compnred with tlie violence of Der Stiirmcr, but mustard trees
grow from small seeds. Much the same point cnn be made in respect of the
defence of fair coninlent in libel cases which the lord justice thinks has been
refined to
the
point where it does not give the prcss an effective dcfence.
Surely the reason why it was refined was because the judges found that when
simply applied in the nay that Sir Alfred Denning appears
to
think desirable,
it gave the press
a
cqniplete licence for defamation, and in order to establish
a
balance the doctrine had to be redressed in favour of the citizen, becoming,
of course, more complicated in the process.
In dealing with freedom of mind and conscience there is much less legal
material nvailable, so that the lecturer was thrown back into
a
rather more
general type
of
speculation in which he moves less surely. His comparison
of the United Kingdom with Russia in the field of religious freedom is
highly unrcalistic. The warfare between the Communist State and the Roman
Church, however deplorablc, is fairly joified, and it
is
absurd to picture the
aggression
as
being
all
on one side, for the Church launched the attack,
and can hardly complain that thc Communist animal is wicked beciiuse he
defends himself, cven if his methods involve hitting below the belt. Indeed,
one hiis to
go
back tcb the Lime when the Protestant queen Elizabeth was
deposed from the throne of Engiund to get
a
rent iindcrstnnding of the
strugale which is
now
going on between Rome and the Communist States.
This is
a
struggle for dominnnce-it
has
nothing to do with freedom.
These short comparative sections, no doubt inserted for the purpose of
satisfying the terms of the IIanilyn trust, are
thc
lcast satisfactory part of
the book. Sir ?\lfretI Den.tinx
is
not
a
profound student of corilpcirative
law and his illustrntive material, being taken frrm France and Russia only,
docs not give
a
rcalistic view of the Contincnt:il situation gcnernlly. hlore-
over, in the case of IJussia there is
so
little factual inaterial readily aviiilnble
that it is quite impossible to reach an objective conclusion in rcspect of such
matters
as
civil liberties in that coiintry
:
tlie political cases which are high
lighted are not necessarily
ii
guide
to
genernl practice. Sir Alfred Iknning
is
probably justified in what he says about Russia, for the Russian conception
of liberty
is
not ours, but one has an uneasy fealing that Russia
is
being
used
as
a
hobby horse for the purpose
of
justifying Miss Hnmlyn’s insular
prejudices.
In his third lecture ‘dustice Between Man and the State’,
Sir
Alfred
Denning returns to his earlier realistic point of view. IIcre again it
is
a
question of striking
a
balancc. ‘The extent to which judges in the nineteenth
century carried rights
of
property seems to
us
today
to
be almost incredible’
-coming from
n
judge this is
n
statement
of
appalling frnnkness, and equally
-balance here?
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