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Niall Ferguson: Reith Lecture pt.3 - The Landscape of the Law

Tuesday 3 July 2012, 10:03

Richard Fenton-Smith Richard Fenton-Smith

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Editor's note: In the Reith Lecture this week, Niall Ferguson talked about The Landscape of the Law. The programme is available to listen to online or to download and keep - PMcD

niall ferguson

"Some score members of the... bar... are mistily engaged in one of ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep in technicalities, running their goat-hair and horsehair warded heads against walls of words and making a pretence of equity with serious faces, as players might..."
- Charles Dickens, Bleak House

Lawyers were something of a fascination for Charles Dickens, appearing in around a dozen of his novels.

From the sharp-dealing Dodson and Fogg featured in The Pickwick Papers to the down-right lazy Mortimer Lightwood in Our Mutual Friend - The Old Curiosity Shop's Sampson Brass was "one of the greatest scoundrels unhung". Dickens, it seemed, was not particularly enamoured with the legal profession.

Still, the evolutionary, organic nature of the English common law system, we are led to believe, is one to be envied - emulated even, especially for its economic effectiveness.

After evolving over centuries, it's still working, so must be good, right?

But how justified this claim to superiority over other systems really is, is the key theme of Niall Ferguson's third Reith Lecture.

"Like the human hive of politics, or the hunting grounds of the market economy, the legal landscape is an integral part of the institutional setting in which we live our lives," says Prof Ferguson.

But as the American economist and social scientist Mancur Olson argued, over time, all political systems are likely to succumb to sclerosis - mainly because of rent-seeking activities by organised interest groups.

Prof Ferguson says, in the case of the law, the biggest self-interest group is arguably the legal profession - especially in the USA, once the benchmark for justice, where the rule of law has become the rule of lawyers.

But there other signs indicating the decline of the English common law system, says Niall Ferguson:

  • The erosion of civil liberties by the national security state - something which is not exclusive to the post 9/11 world.
  • The intrusion of European law, in particular the incorporation of the 1953 Convention on Human Rights - "Napoleon's revenge," says Ferguson.
  • The increased complexity and sloppiness of statute law, as a result of a mania for elaborate regulation among the political class.
  • The increasing cost - to both citizens and the business world.

Reform to a system which Prof Ferguson says is on the decline is hard to imagine when, as he claims, there is so much other rot - among the legislature, the regulators, as well as the legal system.

"Ultimately, the change must come from outside the realm of public institutions," he says - "It must come from the associations of civil society. It must come from us: the citizens."

And that is the subject of Niall Ferguson's fourth and final Reith Lecture, Civil and Uncivil Societies, which you can hear on Radio 4 next Tuesday at 0900.

Listen to Niall Ferguson's Reith Lectures

Download Niall Ferguson's 2012 Reith Lectures

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Niall Ferguson's third lecture, The Landscape of the Law, will be repeated on Radio 4 on Saturday, 7 July at 22:15 BST.

In his fourth and final lecture, titled Civil and Uncivil Societies, Niall Ferguson asks asks what constitutes a vibrant and independent civil society. This will broadcast on Radio 4 on Tuesday, 10 July at 09:00 BST.

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    Comment number 1.

    I have the transcript of the third lecture. What are the URLS for the other transcripts?

  • rate this
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    Comment number 2.

    Bingham's criteria for the rule of law include the requirement that ministers administer with integrity. Perhaps this should be considered a major problem in the USA, UK and France?

    The difference between "legalism" and "rule of law" should be emphasized. Culturally, the ad hoc of the shariia may be deemed to be more just than endless argumentation of the Yeshiva. Of course, in Anglo lands, ad hoc decisions are not generally thought to follow the rule of law.

    Those familiar with the "Pursuit of Happiness" statement by the Sons of Liberty in the Preamble to the US Constitution will recognise an implementation of Locke's view about commerce and liberty.

  • rate this
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    Comment number 3.

    Hello MadMaxtheProf9 - here are the links for Niall Ferguson's first two Reith Lectures:

    Lecture 1: The Human Hive: http://bbc.in/LAb8do
    Lecture 2: The Darwinian Economy: http://bbc.in/N9AhPs

  • rate this
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    Comment number 4.

    Perhaps from need to entertain, to engage current mind-sets, perhaps appease power, Professor Ferguson is atomising, spinning-out and re-weaving the story of our past, and so threatening to write the story of our future.

    The Human Hive, to survive, needs a foundation of trust. The Darwinian Economy, dependent on initiative, needs to 'select' enterprises rather than people, initiative free under the rule of conscience. In order that The Landscape of the Law should become and remain democratic, the focus of law, of legal action, of the profession of law, should be the protection not of 'rent-seeking' but of income-share equality.

    As made clear by Bob Diamond and the Treasury Sub-Committee in parliament yesterday, the best of intentions are undermined if we accept rule of our culture by Fear, Greed, 'self-interest' or 'firm-interest' or even 'customer-demand' above common interest.

    Let us hope that in his final lecture the professor addresses our culture of service to Mammon, a culture of Vulnerability to Rogues, of the crushing of conscience, of likely self-extinction. The latter phenomenon is NOT science fiction: cellular apoptosis is integral to embryological development, and as conscious beings we are as 'free' to destroy as to bequeath life to our children.

    We are right to be concerned about 'ancient liberties' and the 'mania for elaborate regulation', right to take alarm at the spiralling costs of 'competition' focussed on the extraction of fees rather than production of value, not least with respect to health and law but monstrously with respect to financial advice, taxation, social security, politics, industrial capacity and defence.

    Professor Ferguson's final title, Civil and Uncivil Societies, is intriguing. Our history is of the rise and fall of 'civilisations', but overall the rise of 'civil society' towards the 'civility' of democracy. The professor will, I am sure, not seek to categorise today's 'societies'.

    To know how far we are from 'civil' democracy, we need to share understanding - and faith - in 'the real concept': Rule of, for, by The Equal People'. If democracy means anything, beyond whatever any contented dictator or slave chooses it to mean, it means the rule of Equals, not just in slave-votes, in degree of access to whatever together we can make of life.

    The professor bids us look to ourselves for change, to (private) 'associations' rather than (public) 'institutions'. Without 'the institution of democracy', we may be bidden to 'go hang ourselves', to accept 'unequal austerity' and folly without end.

    What will 'uncivil' society make of Armed Forces disbandment, quite possibly the reverse of post-Cold-War wisdom.

    Our supposed super-powers may have incited as much as controlled: but their economic and military decline, in a world left without even knowledge of Equal Democracy, might easily see upsurge in local conflicts.

    Too many ruling elites have demonstrated functional inability to find 'use' for the time and energy of millions left 'unemployed'.

    As we think perhaps of beginning to rectify this situation, some 'use' will come to be recognised, from all perspectives, in the boosting of police and military numbers.

    I would commend the roll-out of a teaching programme, our young to be 'armed' with understanding of conditions of approach to full democracy.

    Our service-personnel could be made ambassadors for civil liberation, themselves progressively able to move on from military commitment. Professor Ferguson might make an excellent sergeant-major.

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    Comment number 5.

    “Democracy” and the “rule of law” are frequently conjoined in claims for regime change. Western representative democracy is often intended, but even that is variously implemented. Where the public can initiate or approve legislation, or recall public officials, there is evidence that direct democracy exists. In Venezuela, Hugo Chavez has provided for such popular control and has sought to devolve government functions to the local level. Yet, in the ideology of North America, Chavez is styled as “anti-democratic”.

    **

    The “rule of law” should include an impartial judiciary. It also presumes that public officials act in good faith within their powers as defined by law. The laws, even if so applied, might be quite unjust. Thus, some claim that respect for “fundamental human rights” is part of the rule of law. Unfortunately, these rights are subject to wildly differing interpretations.

    **

    In contrast to a codified body of law, one can have judges who decide a particular case according to principles. Such principles can be religious (shar’ia) or government policy (China). In which would the public have more confidence?

    **

    The USA offers examples of legislation to serve special interests and ministers who are far from being impartial. For example, if one seeks a US definition of “terrorism”, the Congress has decided that one on a government payroll cannot commit terrorism, but that states can be “sponsors of terrorism”. Similarly, the funding of “unconvential warfare” is hedged about with legalistic evasions.**

    The public can discover these things only in a tardive and fogged manner, for the media in Anglo lands are controlled by moneyed interests, interests integral to the Anglo concept of “freedom and democracy”.



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