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

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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

    "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

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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 24. Posted by Don

      on 14 Jul 2012 17:43

      Niall Ferguson's lecture began with a vivid passage from Dickens's Bleak House about the cost and inefficiency of the common law system during the 19th century, as an argument against the legal origins thesis. Only one problem: at this time the Court of Chancery was not a Common Law court. It was an Equity court, which operated under the civil law, adding even more evidence to his arguments against the civil law. Chancery had long specialised in cases of inheritance and debt, providing legal remedies not unavailable under the common law. Since Parliament was beginning the long process of merging the Common Law and Civil Law courts at about the time that Bleak House was written, Dickens's passage was particularly pointed. It seems likely that Ferguson is aware of these details. This is consistent with a more general tendency to misuse evidence. For example, the reference to "translation" when Bottom was turned into a donkey was more likely to have been a joke against the Church of England, whose bishops were moved from one diocese to another, technically known as "translation", than a reference to language.

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    • Comment number 23. Posted by sigmundfloyd

      on 11 Jul 2012 18:47

      Surely it's the case that if you have more private schools the best teachers will migrate to those schools while disruptive pupils are excluded from them. This would result in the state schools being left with second best teachers and all of the less gifted, more disruptive, more difficult pupils leading to kids at these schools getting a worse education than they currently have. If there is an average level of state education which under Ferguson's ideas some students - mostly middle class - would do better than, whilst other students - mostly poorer - would do worse than, that surely is elitist.

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    • Comment number 22. Posted by David Lockyer

      on 10 Jul 2012 15:25

      My response to this year's final lecture was one of hearing arrogance
      dismissing counter argument contemptuously, and, aren't they supposed to eschew politicking?

      Reith Lectures Nobbled & Demeaned

      This year’s Reith lecture was arrogant, self opinionated
      And self-righteous. No doubt he’ll pat his own back for that
      Provide his own award, clap himself... and applaud.
      Tidying up a beach is no polluted ocean fix
      Yet do it with utter confidence and even detritus
      Will transform into plausible statistics.

      Outspoken is fine, radical views might become dynamic
      But arrogance is flaw-secreted by its own conceit.
      Riding bareback upon over-confidence’s saddle-seat,
      A kind of blindness that feels only that which crawls
      Touches its opinionated ‘bleather’ deferentially;
      Measured bespoke, yet edited evidence for one size fits all.

      Based on research that seeks affirmations
      Research that frames the bigger picture into neat self gratification
      From which to chose your confirmations.
      Ring fenced by conjecturing
      An overload of arrogant lecturing, too smug, too off-pat
      The arrogance of dismissing any counter argument: “I knew you’d say that!”

      Contemptuousness from stars of self congratulation.
      Reminds ‘one’ of parliament: that debating house
      Of blatant distortion, wheedling and unfounded accusation.
      An overload of arrogance, but more... a dearth of humility
      Humility before the loaded unfairness’s of society and its have-nots.
      It’s left outs... its small hope, down trodden, underbelly.

      Worthy as debate, discussion beach-combings
      But so much dismissed
      So many un-kissed by this utopian bliss.
      ‘What! What!’
      But we can’t dismiss you... can we?
      Because there are those who would lift your views from nought
      And make a panoramic effusion. Lemonade made crusade.
      And because you have abused wisdom’s academic platform
      With political intrusion
      With a dangerous runaway train of thought.

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    • Comment number 21. Posted by All for All

      on 10 Jul 2012 14:18

      Professor Ferguson might not be amongst the most hard-pressed of tax-payers, but many will appreciate his efforts, and the work of the Lions, to clean his local beach in South Wales.

      The professor's parable highlights 'the beauty' of social inequality, as a 'divide and rule' strategy, the poor majority of tax-payers made perhaps especially grateful for 'tax-saving' avoidance of employment creation, their neighbours left on the dole.

      That said, it is 'our system' that fouled the beach, and left it fouled, and it is for us to consider what element(s) of the local, national or global 'system' might be responsible, doing our best not to reduce the question to 'which of the two caricature systems', Right or Left, might most be to blame.

      Some, perhaps even most, will have difficulty setting aside the caricatures: the world through funny glasses does look funny, and reciprocation in funny behaviour does to an extent legitimise. Despite his goading, Professor Ferguson sees and uses well what many will acknowledge as a social priority for all of us, that of education.

      It is conceded that 'through the state' we have been brought to near universal literacy and some numeracy; but many with means still send their children to the private sector, often for 'established academic quality', but also for choice of ethos, special training, social connection or disconnection, and supposed responsiveness to changing needs and opportunities.

      There are no, repeat no, controlled experiments in this field, and the Hawthorn effect - from attention and enthusiasts - is well to be born in mind. 'Any system' might 'work', with a reasonable balance of discipline and encouragement, backed up by reasonable parents, with reasonable prospects of 'benefit' from 'success'. Though circumstance might dictate, and resilience win-through, it would be folly to assume 'one size or shape fits all', or that even for the majority we can settle upon' final compromises' in academic balance, or between social and economic aspects of scale.

      What 'The Left' perhaps non-reflexively is 'inclined to denounce' with respect to the offer of 'a thousand flowers', is inequality of access, unfair transfer of funding, and supposed 'unfair' futures. To which our professor might reply, "Let them have Academies", under the wing of a neighbouring 'good school': vouchers, bursaries and scholarships can be looked-to for those with special needs.

      Eventually, it might be envisaged, most will be 'middle class', in good jobs, with time to give to civil associations, all free to patronise the educational market as they see fit, hardly noticing that a new stratum of school has sprung up for those with very special needs (how to cope with inherited power at the 1% or rather 0.000001% level), and that the 'more entitled class' is growing and growing 'hungry'.

      We could of course settle straightaway for universal choice, liberating parents and teachers in a market made safe as well as 'interesting', by agreed equality of income-shares for all. As a bonus we would be allowing ourselves democracy, the rule of conscience, and survival.

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    • Comment number 20. Posted by fallingTP

      on 10 Jul 2012 14:03

      19. Ahh that explains why the UK is doing so well under he current state lead system. Now where was it in the OECD 2010 estimates of literacy and numeracy. that's right 20th out of 34. Real testament to quality.

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    • Comment number 19. Posted by SBro2011

      on 10 Jul 2012 09:14

      What Prof Ferguson said about the education system is either short-sighted and misguided or completely in keeping with the trend among the right wing to denigrate British state schools and then to call for reform (read takeover by private businesses). It's the default position for Tories when speaking about public services. I do not believe for one moment that what Prof (soon, I'm sure, to be Lord) Ferguson is saying is for the benefit of the lower strata of British society. If he cared for working class people, and if he feels that the education system can lead the way to a more equal, just and tolerant society, he would be calling for the complete abolition of private schools.
      Thankfully one of his questioners pointed to the 'mixed evidence' of research on free schools and academies in other parts of the world, and indeed amongst academies in the south of England. Academies are preparing the way for the education system to enter the market place. I expect that there will be no benefit from academies in terms of results (allowing that the results themselves are manipulated by exam boards year on year) but that, within five to ten years, most schools in England will not only be academies but will be owned by multinational companies.
      Ferguson goes further than most. He calls for more private schools. He then claims this will help everyone. He seems here to be missing the very obvious point about how peer pressure can work in positive ways in schools. Go back to the towns in south east England that still have Grammars. Look at the neighbouring schools that are left with the lower achieving pupils.
      It is always interesting to hear a Professor display ignorance. We've seen it recently in the shape of David Starkey. And again in the disdain of Ferguson confronted by an audience of his peers and confronted with the failings of his reasoning
      So thank you to the questioners who made far more sense than the speaker.

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    • Comment number 18. Posted by Voyager2002

      on 10 Jul 2012 08:56

      The final lecture is so dishonest that I feel it is disgraceful.

      The USA does indeed have many outstanding universities, both in the private AND PUBLIC sectors, a little fact that demolishes an important part of the professor's argument.

      The UK has many of the world's leading universities, despite the professor's sweeping comments about the "crisis" in this sector. Perhaps he should ask the many international students why they choose to come and study in this sector! And the UK's only private university (Buckingham) is very far from out-shining the many state-supported centres of excellence: far from it!

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    • Comment number 17. Posted by All for All

      on 9 Jul 2012 21:38

      fallingTP @16

      Good to have your take on "the wider interests of society", some company for the professor!

      All of us know 'something is wrong', of course. It is tempting to lash out, at 'God' for delay in the Second Coming, at flaws in 'human nature, and at any number of individuals and classes of individuals, themselves of course similarly 'aware'.

      The diagnosis is disputed, and of prescription it seems that 'nothing works', or at least that 'nothing has taken'. Our religions and philosophies, our sets of economic principles, all as if 'games' that not enough have wanted to play. If experience in other fields of discovery is relevant, we might expect 'the solution' to be elegantly inclusive, surprising and long almost 'known''.

      Whatever underlies, that we are 'not working well together', most will readily agree. There are such widely differing senses of priority.

      Some are more concerned by poverty and disease, ignorance and war, planetary degradation and human extinction. Others are genuinely frustrated by resistance to the 'natural rule' of Fear and Greed, believing 'the wider interests of society' only to be met by self-serving competition, resignation to caste, perhaps even trust in slavery.

      The frustration of our joint address of both 'external' and relationship problems, has in fact a common root, not any weakness in the Golden Rule, or Good Accounting, or Sensible Investment, but a simple confusion.

      Over the millennia, and in our own lives, realisation has come of great benefit to all from the sharing of liberty-in-restriction, living together under the rule of law, property being respected in our personal lives and our business lives. We would long ago have seen Heaven on Earth but for the naivety of the brave, the ragged disciples of Jesus, the encumbered Levellers, the disappointed Adam Smith.

      Smith, like Jesus, relied too much on independent development of 'moral sentiment', crushed of course by context and the simple confusion. Because the rule of law protects 'property'; because respect for property is key to the enjoyment of life and liberty, home and family; and because property is key to the growth of businesses, a fatal myth has been perpetrated upon us, that individual 'ownership' of firms is best, even vital, for initiative and enterprise, discovery and development, ambition and survival.

      The reality only now surfacing, is that 'ownership' (free use within the law) in social enterprise must belong to 'the firm' and not the founder or manager or workers. The reason is that if 'the firm' is owned by an individual or group, then it becomes 'legal'
      to 'take profits', perhaps to take the firm in anti-social directions, and certainly with income-inequality to undermine what by now 'should be' our (intelligent) choice of government, that is genuine (equal income-share) democracy.

      So, rather than the prescription of despair, enemies (in a sense truly) everywhere, I would suggest - against 'terminal decline' - consideration of the conditions of viable democracy, and the role of conflict-of-interest today dictated by inequality.

      Life without corruption.


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    • Comment number 16. Posted by fallingTP

      on 9 Jul 2012 12:06

      As Ferguson suggests the real issue in the west is how does one tackle the predatory state and in doing so seek to unwind the symbiotic relationship that exists between it and powerful interest groups/rent seekers, whether they be lawyers, public servants, the BMA, artists, beneficiaries, regulators or bankers. Governments through law making, tax expenditures or directly through public spending have promoted these interests in return for votes and by and large against the wider interests of society and the economy. The message is clear; the west must change course; it must face up to these huge agency problems or walk the trail towards terminal decline. The only conceivable solution is a return to the principles of classic liberalism.

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    • Comment number 15. Posted by All for All

      on 8 Jul 2012 19:15

      All may be called natural, even mankind and economics.

      Within the constancies of 'law', all is change and at every level of analysis we see 'evolution', the history of emergence and of survivals, arguably at the biological level of analysis towards 'co-operation', at the human level towards 'civilisation'.

      Our ideas, the weighting of drives and concerns, are validated - selected - in long interaction, in history and lives, in stories half-fact and half-fiction. The history of political and economic relations is one of successive 'ingrained ideologies', with many variants at each level from tribal to proto-democratic.

      Good to know that distrust, perhaps awareness of need to devise a 'contractual' basis for 'rational trust', is allowed to be expressed amongst 'all journalists'. Self-doubt the first step to wisdom, courage required. It is regrettable that so much of the Earth's resources, so much of our 'oil-fired time', has been 'wasted', that we come to 'the real questions' only when foreseeable troubles are upon us.

      Such is now our 'power of error', we probably cannot for much longer afford to put-off the exercise of 'moral intelligence'. If what you describe as "strong leaders with non-democratic solutions", were to be heralds of something like 'Christ's Second Coming', then imposition of Equal Democracy would afford such an experience - of Heaven on Earth - as to put our choice of happy survival beyond question.

      My perception… six decades and counting… is that both trust and understanding are low, dangerously low. I once asked a regional meeting of boffins whether, others in society all agreed, any would object to Income-Share Equality. None would 'confess', but I was not long for that world. Clearly, we do need figures able to lead, with the trusted authority of such as Desmond Tutu and Nelson Mandela, to explain and win agreement for the - sedulously derided - Brotherhood of Man, made real with universal equality of shares, man, woman and child.

      Such leadership is needed to make overwhelming the disapproval of such inane objection as today holds the stage. No particular disrespect to 'economics', but a quantum leap is needed, as likely from the shoulders of past heroes, Smith, Keynes and Galbraith, as from Keen or Stiglitz or Ferguson.

      If choice of Income-Share Equality IS that 'dictated' by our care for each other, and for the future, then any supposed 'problems' would be expected on examination to prove readily soluble. That is of course the case: but much work of 'correction' is ahead to enable self-help at all levels of enquiry.

      The 'strong non-democrats' are with us already. From their number, or from the ranks of the military or mafia, greater 'strong-men' might emerge, but only to finally sweep away all illusions of proto-democracy, to confront us with our choice, at the last ditch.

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