In Praise of Politics – 政治运作的礼赞

ANITA ANAND: Welcome to the second of the 2019 BBC Reith Lectures with the former Supreme Court Judge, Jonathan Sumption. We’re in England’s second city at the University of Birmingham’s Bramall Music Hall, a beautiful modern addition to this famous old red brick campus.

欢迎来到2019年BBC睿思讲座的第二场，由前最高法院法官Jonathan Sumption主讲。今天我们来到英格兰第二大城市伯明翰，伯明翰大学古老的红砖校园新建了一个漂亮的现代建筑，就是我们今天所在的Bramall音乐厅。

Our speaker this year began his series by raising concerns about the law’s growing influence over public life. He suggested that this expansion may not be good for democratic life.  Now, he develops this idea further, turning his attention to some fundamental issues which underpin democracy, how the State acquires and builds legitimacy and, mindful of recent events, how democracy accommodates difference, difference of opinion and experience.  This, he believes, is the job of politicians, not of judges.  

今年的主讲人以对法律在公共生活中的影响力日益增长表示担忧开始了他的系列演讲，他指出这种扩张可能不利于民主。现在，他进一步发展了这个思想，将注意力转向民主的基础问题，国家应如何获取并建设正当性，以及，鉴于正在发生的时事，民主制应该如何容纳不同，意见分歧和经验差异。他相信，这些工作应该交由政治家而不是法官完成。

Will you please welcome the 2019 BBC Lecturer Jonathan Sumption. The lecture is called In Praise of Politics.

请欢迎2019年BBC睿思讲座主讲人Jonathan Sumption。本次讲座的主题为：政治运作的礼赞

(AUDIENCE APPLAUSE)

JONATHAN SUMPTION: The 18^th century sage, Dr Samuel Johnson, thought that politicians were only in it out of vanity and ambition. Mark Twain believed that they were corrupt, as well as sick. George Orwell famously dismissed the world of politics as ‘a mass of lies, evasions, folly, hatred and schizophrenia.’ Statements like these are timeless clichés, faithfully reflecting the received opinion of every age, including our own. 

18世纪的哲人塞谬约翰逊博士，认为从政者无非出于虚荣和野心；马克吐温认为政客腐败而恶心；奥威尔将政治世界指斥为“谎言，逃避，愚蠢，仇恨和精神分裂的混合体”，此话广为人知。这些说法是永不过时的老生常谈，真实地反映了包括如今在内的每个时代所接受的看法。

So, the title of this lecture may sound provocative, at least I hope so, because I want to make the case for the political process with all its imperfections. I argued in my last lecture that the quest for protection from perceived threats to our values and wellbeing had immeasurably expanded the role of the State in our lives. In a democracy the State, with its immense potential, for both good and ill, is ultimately in the hands of electoral majorities, hence comes the great dilemma of modern democracy, how do we control the potentially oppressive power of democratic majorities without undermining democracy itself?

因此，本讲座的标题听上去有些耸动，至少我是这么希望的，因为我想为政治活动，充满各种缺陷的政治活动，进行辩护。在上次讲座中我指出，为了保护我们的价值和福祉免受侵害，我们向国家寻求保护，而这种需求极大地扩大了国家在生活中的作用。在一个民主政体中，国家的巨大潜能，无论好坏，最终掌握在多数派手中。这就说到现代民主的巨大困境，如何才能在不损害民主本身的前提下，控制多数派的压迫呢？

Let us start with some basic questions. Why do people obey the State? Fear of punishment is only part of the answer and not even the main part. Fundamentally, we obey the State because we acknowledge its legitimacy. Legitimacy is a vital but elusive concept in human affairs and it is a large part of what these lectures are about. Legitimacy is less than law but it is more than opinion. It’s a collective instinct that we owe it to each other to accept the authority of our institutions, even when we don’t like what they are doing. It depends on an unspoken sense that we are in it together. It’s the result of common historical attachments, of language, place and culture. In short, of collective identity. But even in an age when collective identities are under strain, legitimacy is still the basis of all consent for in spite of its immense power, the modern State depends, on a large measure, of tacit consent.

我们可以从一些基本问题开始。为什么人们要服从国家？对惩罚的恐惧只是一部分原因，而且不是主要部分。从根本上说，我们服从因为我们承认其正当性。正当性是人类事物中一个至关重要而又难以捉摸的概念。正当性不像法律一样明晰，但又不仅仅是一种意见。它是我们的集体本能，使我们甘心接受制度的权威，哪怕我们不喜欢其作为。正当性依赖于一种集体的潜意识，是语言，地理和文化等共同历史凝聚的结果，也就是集体身份认同的结果。但是，即使在集体身份面临压力的今天，正当性仍然是所有共识的基础——尽管国家拥有庞大的力量，现代国家在很大程度上取决于隐含的共识。

The sudden collapse of the communist governments of Eastern Europe at the end of the last century was a sobering lesson in the importance of legitimacy. Even in a totalitarian State, civil government breaks down at the point where tacit consent fails and ideology cannot fill the gap. If that was true of the party dictatorships of Eastern Europe with their intimidating apparatus of social control, then how much more is it true of a relatively free society such as ours? 

上个世纪末，东欧共产主义政府突然瓦解，这是一个唤醒人们重视正当性的教训。即使在极权国家，如果隐含共识失效，而意识形态又无法填补其空白，政府也会崩溃。如果这一点适用于东欧那些拥有吓人的社会控制力的一党独裁统治，它会不会更适用于我们这样相对自由的社会呢？

The legitimacy of State action in a democracy depends on a general acceptance of its decision-making processes, not necessarily of the decisions themselves but of the method of making them. A free society comprises countless individuals and groups with conflicting opinions and interests. The first task of any political system is to accommodate these differences so that people can live together in a single community without the systematic application of force. 

在民主国家，国家行为的正当性取决于决策过程——决策方法而非决策结果——是否被普遍接受。一个自由社会包括无数个人和团体，他们的意见和利益存在冲突。任何政治制度的首要任务是在分歧中寻求和解，使人们可以在同一个社区生活，而不必系统地诉诸强力。

Democracies operate on the implicit basis that although the majority has authorised policies which a minority deplores, these differences are transcended by their common acceptance of the legitimacy of its decision-making processes. Self-evidently, majority rule is the basic principle of democracy but that only means that a majority is enough to authorise the State’s acts. It isn’t enough to make them legitimate. That is because majority rule is no more than a rule of decision. It does nothing to accommodate our differences, it simply restates them in numerical terms.

民主整体的运作基于如下假设：虽然是多数派授权采用少数派反对的政策，但两派的分歧让位于对决策过程正当性的共同接受。不言自明的是，少数服从多数是民主制的基本规则，但这只是说多数派可以授权国家行为，而不足以使国家行为足够正当。因为少数服从多数仅仅是一种决策机制，并没有对分歧进行折衷和解，无非是将分歧用数字表达出来。

A democracy cannot operate on the basis that a bare majority takes a hundred percent of the political spoils. If it did, it would harbour large and permanently disaffected groups in their midst who had no common bonds to transcend their differences with the majority. A State based on that principle would quickly cease to be a political community at all. That is why all democracies have evolved methods of limiting or diluting the power of majorities. I’m going to talk about two of them. They are, really, the only two that matter. One of them is representative politics and the other is law. 

民主制不能以多数派享有全部政治利益为基础进行运作。否则，在人权中会积累庞大而永久的不满者，他们没有共同的纽带可以超越与多数派的分歧，这样运作的国家将很快不再是一个政治共同体。这就是为什么所有的民主国家都发展出限制或削弱多数权力的方法。我要谈论其中的两者，真正重要的仅此两者，一是代议制，另一个是法律。

This city has a good claim to be the birthplace of representative politics. In the lead up to the great Reform Bill of 1832, Thomas Atwood and the Birmingham Political Union were at the heart of the campaign for parliamentary representation across the whole of Britain. Today, we could in theory abolish representative politics. In fact, we could abolish politics as we know it. For the first time since the whole citizenry of Ancient Athens gathered together in the Agora to transact public business, it would now be technically feasible for the electorate to vote directly on every measure. In fact, no democracy works like that. They act through elected legislatures. They do this not just for reasons of practicality but on principle. 

今天我们所在的城市被公认是代议制的发源地。在1832年那个意义重大的改革法案出台之前，托马斯阿特伍德和伯明翰政治联盟是整个英国议会代表运动的核心。今天，理论上讲我们可以废除代议制，而实际上，这样我们就废除我们所知的政治运作。自古雅典全体市民聚集到广场上进行公共事务以来，这是第一次从技术上讲，选民可以对每一种措施直接投票。然而实际上，民主从未这样运作，而是通过选举立法机关行事。这不仅仅是出于实用性考虑，而是有着原则性的原因。

In one of his contributions to the federalist papers James Madison, the chief draftsman of the US Constitution, gave what is still the classic justification for the representative principle. A chosen body of citizens was less likely to sacrifice the true interests of the country to short term considerations, unthinking impulses or sectional interests. ‘Under such a regulation,’ he wrote, ‘it may well happen that the public voice pronounced by the representatives of the people will be more consonant to the public good than if pronounced by the people themselves.’

美国宪法James Madison在《联邦党人文集》中对代议制的必要性进行了经典阐述。选出的公民团队更不会因为短期考虑，轻率的冲动或者部门利益而牺牲国家的真正利益。“按照这样的机制”，他写道，“很可能发生的情况，人民代表发出的声音比人民自己发出的声音更符合公共利益。”¹

In England, Madison’s contemporary, the politician and philosopher Edmund Burke, carried this idea further. ‘Parliament,’ he said, ‘was not a congress of ambassadors. Its members were there to represent the national interest and not the opinions of their constituents.’ Now, this might view might be called elitist, and so it is, but political elites have their uses. Professional politicians can fairly be expected to bring to their work a more reflective approach, a broader outlook and a lot more information than their electors, but there is also a more fundamental point. Nations have collective interests which extend over a longer time scale and a wider geographical range than are ever likely to be reflected in the public opinion of the moment.

在英格兰，麦迪逊的同时代人，政治家和哲学家Edmund Burke走得更远。“议会”，他说，“并不是大使的会议。其成员参会是为了代表国家的利益而不是其选民的观点。”在今天，这种观点会被称为“精英主义”，也确实是这样，但是政治精英确有其价值。相比选民，职业政治家可望在工作时引入更多的反思，更广阔的视野和更多的信息。但另外一点更为根本，国家的集体利益常常在时间和空间上超过当前公众舆论所能反映的尺度。

Today, for example, we face issues such as climate change, on which the interests of future generations differ radically from those of the current electorate. There are other issues on which the opinions of England, which is electorally dominant, differ from those of Scotland, Wales or Northern Ireland. Brexit is an issue which raises both of these difficulties. It was the 18^th century political philosopher David Hume who first pointed out what he called the ‘incurable narrowness of soul that makes people prefer the immediate to the remote.’ If we are to avoid the same narrowness of soul, we have to take a view of the national interest which transcends snapshots of the current state of electoral opinion.

比如，今天我们所面临的气候变化一类的问题，在这些问题上，后代利益与当前选民的利益完全不同。在另外一些问题上，占居多数人地位的英格兰人，与威尔士或者北爱尔兰的意见不同。脱欧，更是一个同时在时间和空间尺度上有不同意见的问题。18世纪的政治哲学家David Hume第一个指出了他所谓“精神上无可救药的偏狭，使人们只顾眼前而忽视远方”。如果我们要避免这种精神的偏狭，对于国家利益，我们必须采取一种能够超越选举人的短期意见的看法。

Historically, representative politics has been by far the most effective way of doing this, while at the same time accommodating the differences among our people. This is mainly because of the pivotal role of those much maligned institutions, political parties. Political parties are the creatures of mass democracy. Writing at the end of the 19^th century, when mass democracy was a new phenomenon, the great constitutional lawyer, AV Dicey, regarded them as conspiracies which sacrificed the public interest to sectional interests, and that is still a widely held view but experience has, I think, proved it to be wrong.

从历史上看，代议制政治一直是避免偏狭的最有效方法，同时也容纳了分歧。这主要得益于一种饱受诟病的政治组织，政党。政党是群众民主的产物。在19世纪末，群众民主还是一种新现象的时候，伟大的宪法律师AV Dicey将政党活动视为牺牲公共利益为部门利益服务的串谋。在今天仍有不少人持有这种观点。但我认为，历史经验表明，这种看法是错误的。

Political parties have not usually been monolithic groups, they have been coalitions of opinion, united by a loose consistency of outlook and the desire to win elections. Politics is a marketplace. To achieve a critical size and to command the parliamentary majority, parties have traditionally had to bid for support from a highly diverse body of MPs and an even more diverse electorate. They have had to adjust their appeal to changes in the public sentiments or priorities which seem likely to influence voting patterns. Their whole object is to produce a slate of policies which, perhaps, only a minority would have chosen as their preferred option but which the broadest possible range of people can live with. This has traditionally made them powerful engines of national compromise and effective mediators between the State and the electorate. 

政党从来都不是同质的群体，而是由大体一致的观点和赢得选举的愿望团结在一起的意见联盟。政治仿佛一个市场。为了达到关键的规模，并赢得议会多数席位，每个政党必须设法争取高度多样化的议员和选民的支持。为此不得不调整其诉求，以适应那些可能影响投票方式的公众情绪和优先级变化。政党的全部目标都在于，制定一系列政策，使得也许只有少数人会赞成这些方案，但是尽可能多的人都可以忍受。这种传统使政党成为国家妥协的强大引擎，也成为国家和选民之间的高效调解者。

In Britain it is impossible to think about these things without an eye to the tumults of the past three years. There are serious arguments for leaving the European Union and serious arguments for remaining. I’m not going to express a view about either because they are irrelevant to my theme. I want to focus on the implications for the way in which we govern ourselves. Brexit is an issue on which people feel strongly and on which Britain is divided, roughly, down the middle. These divisions are problematic, not just in themselves but because they roughly correspond to other divisions in our society, generational, social, economic, educational and regional. It’s a classic case for the kind of accommodations which a representative legislature is best placed to achieve.

在英国，讨论此事不可能不谈及过去三年的动荡。离开欧盟有严肃的论据，留在欧盟也有严肃的论据。我不准备说我的意见，因为它与主题无关。我想集中讨论我们的自我治理方式的影响。关于脱欧，人们有强烈的看法，不同意见的分裂，大概一半一半。这种分裂是一个问题，不仅仅因为脱欧本身的分裂，还因为它还大致对应着我们社会的其它划分，代际划分，社会划分，经济划分，教育划分和地域划分。它是放在代议制立法机关才最有可能和解的经典案例。

Europe has now become the defining issue which determines party allegiance for much of the electorate. As a result, we have seen both major national parties which previously supported membership of the European Union adjust their policy positions to the new reality. In a sense, that is what parties are for, it’s what they have always done, but there remains a large body of opinion, in both major national parties, which are strongly opposed to Brexit. One would therefore ordinarily expect the political process to produce a compromise not entirely to the liking of either camp but just about acceptable to both. Now that may yet happen but it has proved exceptionally difficult. Why is that?

脱欧还是留欧已经成为决定多数选民是否终于党派的决定性因素。因此，我们看到两个主要政党，本来是支持留欧的，根据新的现实调整了他们的政策立场。从某种意义上讲，这就是政党存在的目的，也是政党一直在做的事情。但是在两大主要政党中，都还存在大量的反对脱欧的意见。因此，在正常情况下，人们会期待经有政治运作，产生一种跟两派观点都不同，但两派都能接受的折衷。这种折衷到目前为止还没有出现，为什么这么困难？

The fundamental reason is the referendum. A referendum is a device for bypassing the ordinary political process. It takes decision-making out of the hands of politicians, whose interest is generally to accommodate the widest possible range of opinion, and places it in the hands of individual electors who have no reason to consider any opinion but their own. The very object of a referendum is to inhibit an independent assessment of the national interest by professional politicians, which is why it might be thought rather absurd to criticise them for failing to do so. A referendum obstructs compromise by producing a result in which 52 per cent of voters feel entitled to speak for the whole nation and 48 per cent don’t matter at all.

根本原因在于公投。全民公决是绕开正常的政治运作的工具。公投将决策权从有充分动机考虑最广泛人的意见的政治家手中拿走，交给没有任何理由考虑其他人看法的个人选民。公投的唯一目的，就是禁止专业政治家对国家利益进行独立评估，这也是为什么批评政治家为什么还没有在脱欧问题上达成妥协可能是荒谬的。公投产生了结果，使52%的选民觉得自己有资格代言整个国家，而剩下48%的选民的意见无足轻重，从而堵上了折衷之路。

This is, after all, the tacit assumption of every minister who declares that the British people has approved this or that measure as if only the majority were part of the British people. It is the mentality which has created an unwarranted sense of entitlement among the sort of people who denounce those who disagree with them as enemies, traitors, saboteurs, even Nazis. This is the authentic language of totalitarianism. It is the lowest point to which a political community can sink, short of actual violence.

毕竟，这就是每个宣布英国人民已经批准了这项那项措施的部长的默认假设，仿佛只有多数人才是英国人。也正是这种心态在一部分人中间造成了毫无根据的权利感，将不同意他们的人称为敌人，叛徒，破坏分子，甚至是纳粹。这是真正的极权主义语言。这是在实际暴力之前，一个政治团体能够堕落的最低点。

In the last six months we have seen politics, in some small degree, reasserting itself. Parliament has forced compromise on those who feel that the referendum entitles them to absolute outcomes. If that process has been late, slow and incomplete, it is because of another factor which has been at work for longer and may prove even more damaging. This is the steep decline in public engagement with active politics. The turnout at general elections has been on a declining trend for many years. At one point in 2001 it fell below 60 per cent, the lowest ever.

在过去的六个月中，我们看到政治运作在一定程度上重新肯定了自己。议会将折衷结果强制给那些认为公投给了自己绝对结果的人。如果说这个肯定的过程来晚了，来的太慢而且不完整，那是因为另外一个因素的反作用时间更长，可能造成更大的破坏，就似乎公众对政治的参与度在急剧下降。多年来，大选的投票率一直呈下降趋势。2001年曾经一度跌至有史以来的最低水平，60%以下。

In the early 1950s political parties were the largest membership organisations in Britain. The Conservative Party had about 2.8 million members. The Labour Party had about a million members in addition to the notional membership of those who belonged to its affiliated trade unions. Between them, they probably represented a rough cross-section of the voting public. Today, in spite of the recent rise in Labour Party membership, the Royal Society for the Protection of Birds has a larger membership than all three national political parties combined. 

1950年代初，政党是英国最大的会员组织。保守党大约有280万党员。工党在关联工会的成员之外，还有大约100万党员。两党一起，可能代表了当时有投票权的公众的有效抽样。今天，尽管工党的人数最近有所增加，三个国家政党的成员总还不及皇家鸟类保护协会的人数。

The Hansard Society’s latest annual audit of political engagement records a marked rise in the number of people who say that they don’t want to have any involvement in either national or local decision making. All of this has widened the gap between professional politicians and the public. It has meant that membership of political parties has been abandoned to small numbers of activists who are increasingly unrepresentative of those who vote for them. The effect has been to obstruct the ability of parties to function as instruments of compromise and to limit the range of options on offer to the electorate. This is a dangerous position to be in. The current disengagement of so many voters is, in the long run, likely to lead to a far more partisan and authoritarian style of political leadership. 

议事录协会最新的政治参与度年度审核记录显示，表示自己不愿参与国家或地方决策的人数显著增加。所有这些都扩大了专业从政者与公众之间的鸿沟。这意味着，政党的成员已经被少数活动人士所取代，而这些活动认识越来越无法达标投票者。结果是，政党作为折衷工具的能力受到阻碍，而选民可以选择的选项也受到了限制。这是一个危险的情况。从长远看，这种众多选民不参与的情况，可能导致更为党派主义和独裁主义的政治领导风格。

There are some truths which are uncomfortable to admit. One of them is that an important object of modern democratic constitutions is to treat the people as a source of legitimacy while placing barriers between them and the direct operation of the levers of power. They do this in order to contain the fissiparous tendencies of democracy, to counter the inherent tendency of democracy, to destroy itself when majorities become a source of instability and oppression. 

有些事实让人难以接受。比如，现代民主宪政的重要目标之一，就是在将民众作为正当性来源的同时，将民众与权力的直接运作杠杆隔离开来。这是为了遏制民主的分裂清像，为了对抗在多数派成为不稳定和压迫的根源时，民主制毁灭自己的内在趋势。

One of these barriers, as I have argued, is the concept of representation. The other is law, with its formidable bias in favour of individual rights and traditional social expectations and a core of professional judges to administer it who are not accountable to the electorate for their decisions. These two barriers are not mutually inconsistent. You can have both. To a greater or lesser extent, most countries do. But we need to understand the limits of what law can achieve in controlling majorities and the price to be paid if it tries too hard. 

隔离的机制之一，就是代议制。另外一个则是法律。法律严重偏向个人权利和传统社会期望，核心点是由不必对选民负责的专业法官来实施。这两种障碍并不互斥，可以同时拥有。大多数国家或多或少都同时拥有两者。但是，我们需要理解在控制多数方面，法律能够达到的极限，以及过分运用可能要付出的代价。

The attractions of law are obvious. Judges are intelligent, reflective and articulate people. They are intellectually honest, by and large. They are used to thinking seriously about problems which have no easy answer and contrary to familiar clichés, they know a great deal about the world. The whole judicial process is animated by a combination of abstract reasoning, social observation and ethical value judgment that seems, to many people, to introduce a higher morality into public decision-making. So as politics has lost its prestige, judges have been ready to fill the gap. The catchphrase that justifies this is the rule of law.

法律具有显而易见的吸引力。法官们聪明，善于思考，善于表达，总体说来在理智上是诚实的。他们习惯于认真思考那些没有简单答案的问题。与一些刻板印象相反，他们对这个世界非常了解。司法过程中充满了抽象推理，社会观察，以及对很多人来说是引入了更高的道德观的伦理判断。因此，随着政治运作失去其声望，法官们已经准备好填补空白。为此提供正当性的口号是，法治。

Now, judges have always made law. In order to decide disputes between litigants, they have to fill gaps, supplying answers which are not to be found in existing legal sources. They have to be prepared to change existing judge-made rules if they are mistaken, redundant or outdated. The common law, which has grown up organically through the decisions of judges, remains a major source of our law. Judges have traditionally done this within an existing framework of legal principle and without trespassing on the functions of parliament and the executive. 

当然，法官们一直在制定法律。为解决诉讼双方的争端，他们必须填补空白，提供现有法律资源中没有的答案。如果现存规则有错，多余或者过时，他们必须要进行修改。普通法就是通过法官的决定逐步成长起来的，至今仍然是我们法律的最要来源。传统上，法官是在现有法律原则框架内完成此类工作，而不会侵犯议会和行政部门的职能。

In the last three decades, however, there has been a noticeable change of judicial mood. The Courts have developed a broader concept of the rule of law which greatly enlarges their own constitutional role. They have claimed a wider supervisory authority over other organs of the State. They have inched their way towards a notion of fundamental law overriding the ordinary processes of political decision-making, and these things have inevitably carried them into the realms of legislative and ministerial policy. To adopt the famous dictum of the German military theorist Clausewitz about war, law is now the continuation of politics by other means. 

而在过去三十年中，司法模式发生了显著变化。法院发展出更广泛的法治概念，极大地扩大了自身的宪政角色。他们要求对国家的其它机关有更广泛的监督权。司法已经朝着凌驾于普通政治决策程序的基本法概念迈进，不可避免地将其带入立法和部长政策领域。用德国军事理论家Clausewitz关于战争的著名格言说，法律现在已经成为政治的另外一种延续了。²

The Courts operate on a principle, not always acknowledged but usually present, which lawyers call the principle of legality. It is probably better described as a principle of legitimacy. Some things are regarded as inherently illegitimate. For example, retrospective legislation, oppression of individuals, obstructing access to a Court, acts contrary to international law, and so on. Now, that doesn’t mean that parliament can’t do them but those who propose these things must squarely declare what they are doing and take the political heat, otherwise there is too great a risk that the unacceptable implications of some loosely worded proposal will pass unnoticed as a Bill goes through parliament.

法庭的运作原则，不见得总得到确认，但通常存在，律师称之为合法性原则。称为正当原则可能更好。有些事情在本质上被认为是不正当的。比如，追溯性立法，个人压迫，妨碍诉讼，违反国际法等。但是，这并不意味着议会就不能做这些事情，而是说这些建议的提出者必须直截了当地宣布自己在做什么，并承受由此产生的政治压力。否则，如果措辞不严密的提案在国会通过变成法案，导致无法接受的后果，这个风险就太大了。

The principle of legitimacy is a very valuable technique for ascertaining what parliament really intended, but it puts great power into the hands of judges. Judges decide what are the norms by which to identify particular actions as illegitimate. Judges decide what language is clear enough. These are elastic concepts. There are usually no clear legal principles to shape them. The answer depends on a subjective judgment in which a judge’s personal opinion is always influential and often decisive. Yet the assertion by judges of a power to give legal effect to their own opinions and values, what is that if not a claim to political power?

正当原则是确定议会真正意图的非常有价值的工具，但它赋予法官极大的权力。法官决定哪些规范可以用于识别特定行为不正当。法官决定什么样的语言足够清晰。而这些概念都有弹性，通常没有明确的法律原则来界定。答案取决于主观判断，而在这些主观判断中，法官的个人意见总是有影响力，而且往往是决定性的。那么，掌握这种权力的法官通过断言将自己的意见和价值赋予法律效力，如果说这不是在要求政治权力，那又是什么呢？

Let me illustrate this with two recent decisions of the Supreme Court. Both of them concerned a matter on which the Courts have always been sensitive, namely attempts to curb their own authority. As it happens, I didn’t sit on either of them. The first is about Court fees. Employment tribunals were created by Act of Parliament to provide a cheap and informal way in which employees could enforce their rights, the rights conferred upon them by statute. Until 2013, access to them was free but in that year the government introduced steep fees which people on low or middling incomes could not afford, at any rate without large sacrifices in other directions. 

请允许我用最高法院最近的两项判决说明这一点。这两项判断都跟最高法院一直非常敏感的问题——试图遏制法院自身的权威——有关。这两个案子我刚好都没有参与。第一个是关于法院费用。就业法庭是根据国会议案设立的，目的是提供一种廉价而简单的方案，使员工可以行使那些法令赋予他们的权利。直到2013年之前，人们都可以免费使用就业法庭。在2013年，政府推出了高额费用，使得中低收入者，如果不在其它方面做出重大牺牲，就无力负担其费用。

The government had a general statutory power to charge fees but in 2017 the Supreme Court held that the language of the Act was not clear enough to authorise fees so large that many employees would be unable to enforce their rights in Court. This decision has been criticised but I think it was perfectly orthodox. MPs looking at the words of the Bill as it went through parliament would not have suspected that the power to charge fees would be used to stifle people’s employment rights.

根据法律，政府具有收取费用的一般法定权力，但最高法院在2017年裁定，该法的措辞不够清晰，不足以支持政府收取如此高的费用，以至于影响到人们在法庭上行使其权利。这个裁决遭到批评，但我认为这是非常正统的裁决。国会通过该法案的时候，议员们不会想到收取费用的权力会被用来扼杀人们就业的权利。

Let’s now move to the opposite end of the spectrum. The Freedom of Information Act entitles people to see certain categories of documents held by public bodies, unless there is an overriding interest in there being withheld. The Act also conferred on the Court a power to order disclosure but in addition to those, it gave ministers a veto if they felt that they could justify that in parliament. In other words, it empowered them to impose a political rather than a legal solution.

现在，让我们转移到频谱的另一端。信息自由法赋予人们查看公共机构持有的某类文件的权利，除非有凌驾性的权益不允许公开。法令赋予了法院命令披露的权力，但与此同时，又允许部长们否决权，只要他们认为自己能够在议会证明其正当性。也就是说，法令使部长们有权采取政治而非法律解决方案。

The Tribunal decided that letters written to ministers by the Prince of Wales should be disclosed to a journalist on The Guardian. Thereupon the Attorney General issued a certificate under the Act overriding that decision on the ground that disclosure was not in the public interest. The Supreme Court, by a majority of five to two, quashed this decision. The majority’s reason, however dressed up, was that they didn’t approve of the power that parliament had, on the face of it, conferred on ministers. Three of the judges thought that it was such a bad idea that parliament could not possibly have meant what it plainly said. Two others accepted that parliament must have meant it but thought that the Attorney General had no right to disagree with the tribunal. 

法庭判决认为威尔士亲王写给部长的信应该被批露给卫报的记者。随后，总检察长根据该法发布了一个证明书，证明该裁决无效，理由是披露该信件不符合公众利益。最高法院以五票对二票否决了该裁决。否决的理由，无论如何打扮，实际上是不同意那些表面上是议会赋予部长的权力。其中三名法官认为这个主意如此糟糕，议会的想法不可能是字面意思。另外两个法官确认议会通过的就是法令的字面意思，但是司法部长无权否定法庭。

For my part, I think that there is no reason why a statute should not say that on an issue like this a minister answerable to parliament is a more appropriate judge of the public interest than a Court. As one of the two dissenting judges pointed out, the rule of law is not the same as the rule that the Courts must always prevail, whatever the statute says. No other modern case so clearly reveals the judge’s expansive view of the rule of law. Whether the Prince of Wales’s letters should be disclosed is not itself a very important issue but the same technique has been applied more discretely to sensitive issues of social policy about which the public feels much more strongly. 

法令规定在这种问题中对国会负责的部长比法庭更适合做出判断，在我看来这无可挑剔。正如其中一个反对的法官所指出的，法治不等于法院必须始终占上风。没有其它现代案例能如此清晰地揭示出法官对法治理解的扩张。威尔士亲王的信是否应该被公开本身不是一个很重要的问题，但是同样的手法此后被更审慎地用于一些社会政策的敏感问题上，对此公众的感受更加强烈。

An example, say for the past half century, include education, subsidised fares on public transport, social security benefits, the use of overseas development funds, statutory defence system murder, the establishment of public inquiries and many, many others. On immigration and penal policy, the Courts have for many years applied values of their own which are at odds with the harsher policies adopted with strong public support by parliament and successive governments. 

举例来说，在过去半个世纪中，在包括教育，公共交通补贴费用，社会保障福利，海外发展资金的使用，正当防卫杀人，建立公共咨询机构等等问题上，在关于移民和刑罚政策上，法院一直应用自己的价值观，与议会和历届政府在公众支持下采取的更严厉的立场背道而驰。

Now, most people’s reaction to decisions like these depends on whether they agree with the result, but we ought to care about how decisions are made and not just about the outcome. We ought to ask whether litigation is the right way to resolve differences of opinion among citizens about what are really questions of policy. Many people applaud decisions of the Courts which wrong-foot public authorities. Sometimes they’re right to applaud but there is a price to be paid for resolving debatable policy issues in that way. 

现在，大多数人对此类决策的反映取决于他们是否同意其结果，但我们更应该关注决策方式而不仅仅是结果。我们应该问，如果公民对于政策中真实问题有分歧意见，法律是不是解决分歧的正确方法。很多人赞扬法院陷公共当局于被动的做法。有时候赞扬是对的，但是采取这种办法解决有争议的问题需要付出一定的代价。

It is the proper function of the Courts to stop governments exceeding or abusing their legal powers. But allowing judges to circumvent parliamentary legislation or review the merits of policy decisions for which ministers are answerable to parliament, raises quite different issues. It confers vast discretionary powers on a body of people who are not constitutionally accountable to anyone for what they do. It also undermines the single biggest advantage of the political process, which is to accommodate the divergent interests and opinions of citizens. 

阻止政府超越或滥用其法定权力是法院的正当职能。但是，允许法官规避议会立法，或者在部长对议会负责的情况下允许法官审查部长的政策决定，这是截然不同的问题。他将巨大的自由裁量权交给一群其作为在宪法上不必为任何人负责的人。这样做也削弱了政治运作的最大优势，即容纳公民的不同利益和意见。

It is true, politics do not always perform that function very well but judges will never be able to perform it. Litigation can rarely mediate differences. It’s a zero sum game. The winner carries off the prize, the loser pays. Litigation is not a consultative or participatory process, it is an appeal to law. Law is rational. Law is coherent. Law is analytically consistent and rigorous. But in public affairs these are not always virtues. Opacity, inconsistency and fudge maybe intellectually impure, which is why lawyers don’t like them, but they are often inseparable from the kind of compromises that we have to make as a society if we are going to live together in peace.

不错，政治运作并不总是能很好地履行职能，但是法官们永远不能代为行事。诉讼难以调解分歧。这是一种零和游戏。获胜者拿走奖金，失败者支付奖金。诉讼不是协商或者参与，它是向法律做出申诉。法律是理性的，法律是连贯的，法律在分析上是一致而严格的。而对于公共事务来说，这些并不总是优点。不透明，不一致，含混其词也许在智识上不纯正，这也是为什么律师们不喜欢它们，但是它们通常与我们在社会中和平相处所必须做出的妥协密不可分。

In my next lecture I want to consider what has become the main battle ground between law and politics, namely international human rights. Thank you. 

在下一场演讲中，我将探讨已经称为法律和政治之间主要战场的国际人权话题。谢谢！

(AUDIENCE APPLAUSE)

ANITA ANAND: Thank you very much, Jonathan. We’re going to open this up for questions from our audience here at the University of Birmingham in just a moment but before we do, can I just ask you, isn’t there a fundamental problem here distinguishing where the political ends and the distinctly legal begins?

JONATHAN SUMPTION: In the great majority of cases I think it is pretty clear but there is a large grey area where many of the distinctions which I’ve sought to draw are very difficult to draw. I absolutely accept that.

ANITA ANAND: And so, therefore, is there not a fundamental problem with your – your theory then?

JONATHAN SUMPTION: All – all legal problems have – generate grey areas. It doesn’t mean to say that the principle is misguided, it simply means that judges have to work harder to decide which side they’re on.

ANITA ANAND: Let’s turn to some of the questions from the audience. One of the questions which has been submitted to us anonymously this evening is from a member of the audience who’s a bit shy, who wants to ask you, ‘For 30 years politics has spectacularly failed to deliver effective collective action on society’s biggest threat, climate breakdown. How do we change that?’ 

JONATHAN SUMPTION: I think the basic problem about climate breakdown – climate change, is that it is not in the immediate interest of the current generation to do anything about it which costs them in their pockets or in their way of life. Another part of the problem is that it’s not a problem that can be tackled at national level, it’s got to be tackled at international level, and people tend to feel that in the absence of international agreement they might as well do what they please rather than go out on a limb. It’s roughly the equivalent of the feeling that if you’re going to divide the restaurant bill by 10, at the end of the day you might as well order lobster. 

Now these, I agree, are very serious problems. They are not going to be overcome in a way consistently with democracy until the problem becomes so dire that it threatens the current generation. 

ANITA ANAND: Yes… 

SARA NATHAN: Hi, I’m Sara Nathan, I’m co-founder of a charity that hosts refugees in people’s houses, Refuges At Home. The hostile environment to refugees is government policy. Often the Court is the only defence for individuals facing removal. Should the Courts act?

JONATHAN SUMPTION: It depends on the ground of complaint. It’s absolutely right that the Courts should act, first of all in cases, obviously, where the government has exceeded its powers; secondly, in cases where the government has abused its power, for example, by using a power for a purpose which it was not intended to serve. But there are different issues which arise when what is being reviewed is the underlying policy itself.

Now, I accept that the government’s policy about refugees is harsh and if you feel that it’s too harsh, I’m with you, I personally take that view as well, but I also think that immigration is a subject on which the public is entitled to its say.

ANITA ANAND: Yes..

ALEHA: I’m 16 and I study at Joseph Chamberlain College.

ANITA ANAND: And what’s your name?

ALEHA: Aleha.

ANITA ANAND: And what did you want to ask?

ALEHA: I ask more than one question.

JONATHAN SUMPTION: Choose the best one.

ANITA ANAND: Do you – yes?

ALEHA: How can we encourage ethnic minorities, females and our youth to go into law and politics?

JONATHAN SUMPTION: Well, a certain amount of effort is already being made to do that. I’d be interested in your view about how successful it is but all the – the various legal professions, in addition to particular solicitors’ firms, barristers’ chambers and so on, have Outreach programmes which endeavour to do this. The problem, of course, about studying law at university is that to encourage ethnic minorities or any other group, to study law at university, you have to reach them while they’re still at school and that is very much more difficult for professional bodies to do. But they are doing it to some extent.

ANITA ANAND: Would the judiciary not benefit though from some kind of positive discrimination? At the moment the judges are pretty much of a muchness. They go to the same universities, they are of the same social class and background. Is there not a great argument for people like Aleah to get involved in the law or people who then make the law more representative, to look a lot more like the people they are judging?

JONATHAN SUMPTION: Well, I think the first priority in the selection of judges is to choose people who are going to be good at the job and establishing preferred categories, first of all, means that you’re not necessarily doing that. It also means that you discourage people who feel that the dice is loaded against them and that is, I think, very unfortunate and very damaging. 

Now, I entirely agree that judges are not typical of those who they serve, of the communities that they serve, and I have to tell you that that applies as much to judges who come from ethnic minorities as to others. The problem is this, and actually the same applies to politicians, they may start by being from working-class backgrounds but they don’t end up that way. But there is an additional issue, which is that the administration of justice is something that people need to feel confidence in and I would entirely accept that judges –  that one needs to have a reasonably representative Bench in order to make people feel that they have got a Bench that is sympathetic to their position.

ANITA ANAND: This is something that has been said for decades. And for decades the judiciary has looked pretty much the same…

JONATHAN SUMPTION: That’s not true. I mean, you have to realise that judges, because under our – in our system they’re appointed at the age of something like 50, the current makeup of the Bench represents entry into the legal profession a generation ago, so there is always a delay. There has been really quite significant change in the makeup of the Bench and there will be more, but if we were today to say, for example, that 50 per cent of every new appointment to the Bench had to be female, it would still take about 30 years to have an exact match on the Bench as it is. That’s simply a matter of mathematics.

ANITA ANAND: Time for one last question?

EAMON ALAYWE: My name is Eamon Alaywe, I’m from Birmingham. My question is, in the light of the recent political controversy surrounding the Supreme Court’s ruling over the 2017 Miller case, which of course you partook in, do you believe that the reforms that were made in the early 2000s in regards to, obviously, the creation of the Supreme Court, have been effective in enhancing judicial independence?

ANITA ANAND: Before – before you answer that, would you like to just summarise, for those people who don’t know the case, you are speaking about what it is about.

JONATHAN SUMPTION: I can do that.

ANITA ANAND: Yeah. Actually, you probably could, couldn’t you, Jonathan? Yes, why don’t you do that?   

JONATHAN SUMPTION: I mean, Miller was the case – Gina Miller contended, successfully, that the government was not entitled to give notice under Article 50 of the EU treaty so – to withdraw the United Kingdom from the European Union without the authority of a statute in parliament. The changes that were made to create the Supreme Court, in my view, had no impact on this at all. All that happened was that the law lords, the appellate committee of the House of Lords who had previously served as the ultimate Court of Appeal in the United Kingdom, moved over the road and became the Supreme Court. Pretty well nothing changed.

There were a number of voices suggesting that being a new Court would make them bolder, for example, in acting against the government. I don’t think that that is so. I think that the Miller decision would have been arrived at under the old system, just as it was under the new.

ANITA ANAND: Can I ask a supplementary question to this? I mean, if

representative democracy is so effective, as you argue that it is—–

JONATHAN SUMPTION: I accept that it’s not always.

ANITA ANAND: But parliament decided on a referendum when it came to Brexit.

JONATHAN SUMPTION: Yes. Parliament can do many things that are unwise and that are – and that are – and that are inconsistent with the way that democracies ought to work. I am certainly not suggesting that the referendum was unlawful, I am simply suggesting that it was extremely unwise and that the last three years are an illustration of quite a lot of the reasons why.

ANITA ANAND: Okay, you’re not a fan. I get that.

JONATHAN SUMPTION: I’m not a fan of referendums, full stop.

ANITA ANAND: Okay. So, well, okay, well that answers the second thing. To get us out of this mess, do we need a second referendum?

JONATHAN SUMPTION: Well, I don’t think we should have had the first.

ANITA ANAND: No, but we’ve had it now so now how do—–

JONATHAN SUMPTION: I – I – let me finish my sentence.

ANITA ANAND: Okay.

JONATHAN SUMPTION: I don’t think we should have had the first but having had the first, it may well be that the only way that we can get out of the mess created by the first, is to have another one but the moral is not to have as many referendums as possible, the moral is to have none at all.

ANITA ANAND: Well, we’re going to have to leave it there. Next time we’re going to be in the Scottish capital, Edinburgh, to hear why Jonathan thinks that judges are over extending the remit of the European Convention on Human Rights. That is the third lecture. 

In the meantime, a huge thanks to the University of Birmingham for hosting us, to our audience and to our BBC Reith lecturer, Jonathan Sumption.

(AUDIENCE APPLAUSE)