The Human Rights Act and Legal Culture: The Judiciary and the Legal Profession
| Published date | 01 March 1999 |
| DOI | http://doi.org/10.1111/1467-6478.00117 |
| Date | 01 March 1999 |
| Author | Murray Hunt |
The purpose of this article is to consider the effect the United Kingdom’s
currently prevailing legal culture is likely to have on the realization of
cultural change presaged by the Human Rights Act. The article is in five
parts. The first two address the preliminary questions: what is meant by
‘legal culture’ for these purposes, and what type of ‘human rights culture’
does the Human Rights Act envisage? The answers define the scope of
the remainder of the article’s inquiry into the ways in which the Act itself
and the culture of the United Kingdom legal profession and judiciary are
likely to interact. The third part of the article identifies some examples
of the sorts of culturally specific aspects of current legal practice which
are likely to operate as serious practical constraints on the emergence
of a human rights culture worthy of the name, before the fourth part
considers what sorts of cultural changes will be required of judges and
lawyers for the presaged cultural transformation to come about. Finally,
the article asks whether there is any reason to believe that courts and
lawyers can find from within their present culture the resources to bring
about the necessary shift.
INTRODUCTION
The passage of the Human Rights Act has been accompanied by much talk
of it heralding the long-awaited arrival of a ‘human rights culture’ in the
United Kingdom. Professor Wade, for example, in his 1998 Judicial Studies
Board Annual Lecture, sees the Act as ‘a quantum leap into a new legal culture
of fundamental rights and freedoms’.1The Home Secretary, in his speech
wrapping up the debate at the end of the Bill’s passage through the Commons,
© Blackwell Publishers Ltd 1999, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Barrister, 4–5 Gray’s Inn Square, London WC1R 5AY, England
86
JOURNAL OF LAW AND SOCIETY
VOLUME 26, NUMBER 1, MARCH 1999
ISSN: 0263–323X, pp. 86–102
The Human Rights Act and Legal Culture:
The Judiciary and the Legal Profession
MURRAY HUNT*
1W. Wade, ‘Human Rights and the Judiciary’ [1998] European Human Rights Law Rev. 520,
at 532.
I am grateful to Rabinder Singh and Francesca Klug for their comments.
87
© Blackwell Publishers Ltd 1999
displayed what is probably a more realistic appreciation of the nature of
cultural change when he said ‘over time, the Bill will bring about the creation
of a human rights culture in Britain’.2Whatever the time-scale, there seems
to be a broad measure of agreement amongst academic commentators, practis-
ing lawyers and politicians that the Human Rights Act is a statute of peculiar
significance which either represents in its enactment, or has the potential to
bring about, change of the order of a cultural transformation.
The overall aim of this article is to arrive at a provisional assessment of
how different the present legal culture of the profession and judiciary is from
that which will be required in the new human rights culture, with a view to
identifying the most likely points of resistance. The importance of law in
making human rights effective means that the answers to the questions this
article seeks to pose, while by no means the only proper field of inquiry
when seeking to assess the Act’s prospects of creating such a culture, will
nevertheless be important determinants of how soon the government’s own
vision of a cultural transformation is likely to come about in practice.
THE MEANING OF ‘LEGAL CULTURE’ FOR
PRESENT PURPOSES
There has long been debate between law and society scholars about the
meaning and usefulness of the concept of ‘legal culture’.3This article presup-
poses the utility of the concept for the purposes of inquiring into the ways
in which the various social practices which constitute the legal environment
are likely to mediate the concrete effects of the Human Rights Act in practice.
On the assumption that this is a worthwhile inquiry, it is proposed to stip-
ulate at the outset a very specific meaning of ‘legal culture’ for that purpose,
and to go on to examine the actual practices of lawyers and judges in the
light of that stipulated definition.
An inquiry into the likely dynamic between the Human Rights Act and
existing legal culture which takes as its focus the activities of courts and
lawyers, as this article does, can do no better than adopt the very helpful
definition of legal culture suggested by Karl Klare in his recent account of
the transformative potential of rights discourse in South Africa under its
new Constitution:4
By legal culture, I mean professional sensibilities, habits of mind, and intellectual reflexes:
What are the characteristic rhetorical strategies deployed by participants in a given legal
setting? What is their repertoire of recurring argumentative moves? What counts as a
persuasive legal argument? What types of arguments, possibly valid in other discursive
2 J. Straw 317 H.C. Debs., col. 1358 (21 October 1998).
3See, for example, the debate between Roger Cotterrell and Lawrence Friedman in Comparing
Legal Cultures, ed. D. Nelken (1995) chs. 1 and 2.
4K. Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African J.
of Human Rights 146, at 166–7.
To continue reading
Request your trial