Law’s Expanding Empire – 扩张中的法律帝国

这是2019年BBC Reith系列讲座,BBC网站上的详细信息在这里

本文是第一部分,其它部分:

THE REITH LECTURES 2019: LAW AND THE DECLINE OF POLITICS

TX: 21.05.2019 0900-1000

BBC页面:https://www.bbc.co.uk/programmes/m00057m8

音频:

Podcast链接

Reith Lecturer: Jonathan Sumption

 

Lecture 1: Law’s Expanding Empire

 

ANITA ANAND: Welcome to the 2019 BBC Reith Lectures and to the magnificent Middle Temple Hall in central London. This splendid Elizabethan edifice is the centrepiece of one of four Inns of Court which date back to the 14th century and it has been a home to lawyers for hundreds of years. We could think of no more fitting place for this year’s lecturer to begin his series about the relationship between the law and politics. Right now, with the world looking as it does, could there be a more timely intervention?

欢迎来到2019 BBC睿思讲座,来到位于伦敦市中心的中殿律师学院的宏伟讲堂。这座伊丽莎白风格的辉煌讲堂一直是中殿律师学院的核心。中殿律师学院的历史可以追溯到14世纪,在几百年来一直是律师的家园。本年度的讲座将探讨法律与政治的关系,在这里开始本年度睿思讲座再合适不过了。目前,时局变化如此,讨论这个话题太及时了。

Having spent a career at the Bar, this year’s lecturer has been called a man with a “brain the size of a planet.” Recently retired as one of Britain’s top judges, after sitting in the Supreme Court, he has returned to his primary passion; history. His appropriately forensic accounts of the One Hundred Years War have been widely praised.

本年度的讲师被认为有 “容纳世界大脑”,在度过最高法院的法律生涯,刚刚以英国最高法官身份退休之后,他返回自己的最初的热情:历史。他在“百年战争”一书中恰切的记述受到广泛赞誉。

Over a series of five lectures he will set out a critique of what he regards as law’s expanding empire intruding into every corner of our lives. He will explain why he thinks this is a corroding influence in our democracy and how, and why, we should revive our political system.

在接下来的五次讲座中,他将对他认为的法律的扩张,以及这种扩张对生活各个角落的入侵做出批评。他将阐述为什么这是对民主的腐蚀,为什么我们应该、以及如何恢复我们的政治制度。

Please welcome the BBC 2019 Reith Lecturer Jonathan Sumption.

有请2019年度BBC睿思主讲人Jonathan Sumption。

(AUDIENCE APPLAUSE)

(观众掌声)

 

 

ANITA ANAND: Jonathan, welcome. Now, I did say you were once in full-time academia, a historian, and then you became a Supreme Court Judge. What went wrong?

Jonathan,欢迎!嗯,我刚才说,你本来全职在学界当历史学家,后来却转身成为最高法院法官。发生了什么事情?

JONATHAN SUMPTION: Well, there were 37 years between those stages. I started as an academic. I loved being an academic but I was fed up with being broke. The Supreme Court was an opportunity that I never expected to have, not having served as a full-time judge before, and I was lucky to be coming to the end of my career as a barrister just at the moment when that opportunity became available.

你知道,两者之间差了37年。我首先进入学界,我深爱学术,但是也过够了穷兮兮的日子。我其实从来没有想过最高法院的机会,之前从来没有当过全职法官,但是机会来临的时候我很幸运,在职业生涯的最后一站成为法官。

ANITA ANAND: And the opportunities have been extraordinary. You have worked in some of the most famous trials that we, as journalists, have covered in recent years. You represented the Russian billionaire, Roman Abramovich, against the fellow oligarch Boris Berezovsky. You have also represented the British government, Alistair Campbell, the Queen. Just between us, who was the most difficult of all your clients?

确实是非同寻常的机会,我们作为记者都曾经报道过你参与一些最知名的审判。你代理过俄罗斯亿万富翁罗曼·阿布拉莫维奇(Roman Abramovich)对寡头鲍里斯·别列佐夫斯基(Boris Berezovsky)。你还代理过英国政府,阿利斯泰尔坎贝尔,还有女王陛下。私下说说,你的客户中谁最难缠?

JONATHAN SUMPTION: You’re trying to get me censored by someone. All clients have special idiosyncrasies. I don’t think Alastair Campbell will object if I disclose that he is the only person that I have ever met who can eat spaghetti while talking into a mobile phone.

(笑)你想让人审查我的言论。每个客户都有特别之处,我想阿利斯泰尔坎贝尔大概不反对我透露一下,他是我知道的唯一能够一边打电话一边吃意大利面的人。

ANITA ANAND: This series is all about the dangers you feel we’re facing because of the rise of law. Some may say that is a strange argument to have when so many of the estates that we once trusted are under attack. The media, sometimes we rank below the spirogyra. Politicians being introduced all the time, and people look to the law as something that is stable and something that is neutral. Why critique them now?

这次系列讲座是关于你觉察到法律的扩张带来的危险。有人可能会说这个立论很奇怪,因为那些我们曾经信赖的权力如今都面临危机。比如媒体,有时候我们的信任度排名还不如水绵。相对于不断更新的政治人物,人们普遍认为法律是稳定而中性的一极权力,为什么现在要批评法律呢?

JONATHAN SUMPTION: Well, the latest Hansard Report on political engagement suggests that judges are somewhere near the top of the list of public confidence and politicians pretty close to the bottom. I don’t think that that reputation is really justified. We need to realise, perhaps more acutely than we do, what the political process can contribute to reconciling our differences.

嗯,最新的关于政治参与的“国会议事录”报告显示,法官在公众信心榜上名列前茅,而政治人物则非常接近末端。我不认为政治人物应得到这种评价。我们需要认识到,更敏锐地认识到,政治运作有助于调和我们的分歧。

ANITA ANAND: Well, your first lecture is called Law’s Expanding Empire. Jonathan Sumption, over to you.

好的。第一次讲座题为“扩张中的法律帝国”,Jonathan Sumption,请。

(AUDIENCE APPLAUSE)

 

 

 

JONATHAN SUMPTION: In the beginning there was chaos and brute force. A world without law. In the mythology of Ancient Athens, Agamemnon sacrificed his daughter so that the Gods would allow his fleet to sail to Troy. His wife murdered him to avenge the deed and she, in turn, was murdered by her son. Athena, the Goddess of Wisdom, put an end to the cycle of violence by creating a Court to impose a solution in what today we would call the public interest, a solution based on reason, on the experience of human frailty and on fear of the alternative.

在一开始,世界上只有混乱和暴力,没有法律。在古代雅典的神话中,阿伽门农牺牲了他的女儿,以便众神允许他的舰队前往特洛伊。他的妻子为复仇谋杀了他,而她又被她的儿子谋杀了。智慧女神雅典娜通过设立法庭,在其中推行对今天所谓“公共事务”的解决方案,而从终结了暴力的循环。解决方案基于理智、对人类脆弱性的体察和对除此之外其它解决方式的畏惧。

In the final part of Aeschylus’s great trilogy, the aristea, the Goddess justifies her intervention in the world of mortals with these words, “Let no man live uncurbed by law or curbed by tyranny.” Now, that was written in the 5th century BC but the message is timeless and it’s universal. Law is not just an instrument of corrective or distributive justice, it is an expression of collective values and an alternative to violence and capricious despotism.

在埃斯库罗斯伟大的奧瑞斯提亚三部曲的最后部分,雅典娜女神解释她对凡间的干预时这样说,“无人可超越法律,无人当受暴政限制”。固然,这是公元前5世纪的作品,它的启示是永恒而是普遍的。法律不仅作为工具通过矫正和分配达成正义,它也是集体价值观的表达,是暴虐专制的替代品。

It is a vice of some lawyers that they talk about law as if it was a self-contained subject, something to be examined like a laboratory specimen in a test tube, but law does not occupy a world of its own. It is part of a larger system of public decision making. The rest is politics. The politics of ministers and legislators of political parties, of media and pressure groups, and of the wider electorate.

有些律师习惯于用这种方式谈论法律:仿佛法律是一个完全独立的事物,可以像实验室标本一样放进试管进行考察。但是法律并不是独立的世界,它是公共决策系统的一部分,其余部分是政治运作。不同政党的部长和立法者,媒体,利益团体和广泛的选民都参与其中。

My subject, in these lectures, is the place of law in public life. The twin themes that I want to explore are the decline of politics and the rise of law to fill the void. What ought to be the role of law in a representative democracy like ours? Is there too much law? Is there, perhaps, too little? Do judges have too much power? What do we mean by the rule of law, the phrase that so readily trips off the tongues of lawyers? Is it, as cynics have sometimes suggested, really no more than a euphemism for the rule of lawyers?

我这次讲座的主题,是法律在公共生活中的位置。贯穿其中的,就是探索政治运作在公共生活中的衰落和法律在其中的兴起。在一个像我们这样的代议制民主中,法律到底应该扮演什么样的角色?法律会变得太多吗?或者,可能还太少?法官的权力是不是太大?律师们脱口而出的“法治”到底是什么意思?它是不是像一些玩世不恭的人所说的那样,就是律师治国的矫饰?

The expanding empire of law is one of the most significant phenomena of our time. This splendid hall has been used by lawyers since it was built four and a-half centuries ago but for most of that time these lawyers had very little to do. Until the 19th century, most human interactions were governed by custom and convention. The law dealt with a narrow range of human problems. It regulated title to property, it enforced contracts, it protected people’s lives, their persons, their liberty and their property against arbitrary injury, but that was about all. Today, law penetrates every corner of human life.

法律帝国的扩大是我们这个时代最重要的现象之一。这个华丽的大厅自四个半世纪前建成以来一直为律师所用,但大部分时间这些律师的事情非常少。直到19世纪,大多数人类交互是受习俗和惯例的支配。法律只处理人类事务中很小的一部分。法律用来规范财产所有权,强制执行合同,保护人民的生命、属员、自由和财产免受任意伤害,仅此而已。今天,法律渗入到人类生活的每个角落。

The standard modern edition of the English statutes fills about 50 stout volumes, with more than 30 volumes of supplements. In addition, there are currently about 21,000 regulations made by ministers under statutory powers and nearly 12,000 regulations made by the European Union, which will continue to apply unless and until they are repealed or replaced by domestic legislation.

英国法规的标准现代版本有满满的50卷,其中30多卷是补充条款。此外,目前约有21,000份由部长根据法定权力制定的法规和近12,000份欧盟法规,这些法规将在脱欧之后继续适用,直到被国内立法废除或取代。

In a single year, ending in May 2010, more than 700 new criminal offences were created, three-quarters of them by government regulation. Now that was, admittedly, a bumper year but the rate of increase continues to be high. On top of that, there is the relentless output of judgments of the Courts, many of them on subjects which were hardly touched by law a century ago.

在截至2010年5月的一年中,有多达700多种新的刑事犯罪罪名被创造出来,其中四分之三来自于政府条例。不可否认,2015年是一个丰年,但法条增加的速度一直很高。此外,还有法庭判决的无尽输出,其中涉及的很多主题,一个世纪前法律基本不会触及。

The powers of the Family Courts now extend to every aspect of the wellbeing of children, which once belonged to the enclosed domain of the home. Complex codes of law enforced by specialised tribunals regulates the world of employment. An elaborate system of administrative law, largely created by judges since the 1960s, governs most aspects of the relations between government and the citizen. The special areas that were once thought to be outside the purview of the Courts, such as foreign policy, the conduct of overseas military operations and the other prerogative powers of the State, have all, one by one, yielded to the power of judges.

家庭法院的权力现在扩展到儿童福利的各个方面,这些方面原本属于家庭的封闭领域。由专门法庭执行的复杂的法律法规被用来规范就业领域。一个主要由法官于1960年代精心设计的行政法体系,管辖政府与公民之间关系的大多数细节。曾经被认为不属于法院职权范围的特殊领域,例如外交政策,海外军事行动的实施和国家的其他特权,都一个接一个地屈尊于法官的权力之下。

Above all, since 2000, a code of legally enforceable human rights has opened up vast new areas to judicial regulation. The impact of these changes can be gauged by the growth of the legal profession. In 1911 there was one solicitor in England for every 3000 inhabitants. Just over a century later, there is about one in 400, a sevenfold increase.

最重要的是,自2000年以来,有强制力的人权法典为司法监管开辟了广阔的领域。可以通过法律专业人士的增长来衡量这些变化的影响。1911年,在英格兰每3000名居民有一名律师。仅仅一个多世纪之后,大约有400人就有一个律师,增长了7倍。

The rule of law is one of the clichés of modern life which tends to be invoked, even by lawyers, without much reflection on what it actually means. The essence of it can be summed up in three points. First, public authorities have no power to coerce us, except what the law gives them. Secondly, people must have the minimum of basic legal rights. One can argue about what those rights should be but they must at least include the protection from physical violence and from arbitrary interference with life, liberty and property. Without these, social existence is no more than a crude contest in the deployment of force. Thirdly, there must be access to independent judges to vindicate these rights to administer the criminal law and to enforce the limits of State power.

法治在现代常常是套话,有时候律师也会脱口而出而对背后的涵义不假思索。法治的本质可以归纳为三点:首先,除法律赋予他们的权力外,公权力无权强迫我们。其次,人们必须拥有最低限度的基本法律权利。这些权利应该包含什么可以讨论,但它们必须至少包括保护身体免受暴力攻击,生活、自由和财产免受随意干涉。没有这些,社会存在无非是强力之下的粗暴竞争。第三,必须有独立的法官来维护这些权利,以管理刑法并强制执行对国家权力的限制。

At least as important as these, however, is a clear understanding of what the rule of law does not mean. It does not mean that every human problem and every moral dilemma calls for a legal solution. So why has this vast expansion in the domain of law happened? The fundamental reason is the arrival of a broadly based democracy between the 1860s and the 1920s. Mass involvement in public affairs has inevitably led to rising demands of the State as a provider of amenities, as a guarantor of minimum standards of security and as a regulator of economic activity.

然而,至少同等重要的问题是,弄清楚法治不意味什么。法治并不意味着人类的每个问题和每个道德困境都需要相应的法律解决方案。那么法律的领地为什么会发生这种剧烈的扩张呢?根本原因是19世纪60年代和20世纪20年代之间广泛民主制度的到来。公共事务的大规模参与不可避免地导致对国家作为仪规提供者、作为最低安全标准的保证者和经济活动的监管者的要求不断增加。

Optimism about what collective action can achieve is natural to social animals. Law is the prime instrument of collective action and rising expectations of the State naturally lead to calls for legal solutions. In some areas a legal solution is dictated by the nature of the problem. Take, for example, the unwelcome side effects of technological and economic change, what economists call externalities. Industrial sickness and injury, pollution, monopoly, climate change, to name only some of the more obvious ones. Economic growth is the spontaneous creation of numberless individuals but spontaneous action cannot address the unwanted collective costs that go with it. Only the State can do that. So we have laws against cartels, against pollution and so on.

对社会动物来说,对集体行动持乐观情绪是很自然的。法律是集体行动的主要工具,对国家不断提高的期望自然提高了对法律方案的呼声。在某些领域,问题的性质决定了必须采用法律方案。比如,技术和经济变革产生的副作用,经济学家称之为外部性。工业疾病和损伤,污染,垄断,气候变化,这是一些比较明显的需要法律方案的例子。经济增长是无数个体的自发创造的结果,但由此带来的个体不愿意承担集体成本的问题,却无法靠自发得到解决。只能由国家强制。因此,我们制定了反对卡特尔,反污染等法律。

But there are other areas where the intervention of law is not forced on us, it’s a collective choice. It reflects pervasive changes in our outlook. I want to draw attention to two of these changes which have, I think, contributed a great deal to the expansion of law’s empire. One of them is a growing moral and social absolutism which looks to law to produce conformity. The other is the constant quest for greater security and reduce risk in our daily lives. Let’s look first at law as a means of imposing conformity. This was once regarded as one of its prime functions.

但是在其他领域,法律的干预并非不得已而为之,而是集体选择的结果。它反映出前景的普遍变化。我想提请注意这些变化中的两点——我认为这两点对法律帝国的扩张起了很大的作用——一是持续强化的道德和社会绝对主义,它寻求法律产生的服从,二是降低日常生活风险,提高安全的持续要求。让我们首先看一下法律作为强制整合的手段。这曾被视为法律的主要功能之一。

The law regulated religious worship until the 18th century. It discriminated between different religious denominations until the 19th century. It regulated private and consensual sexual relations until quite recently. Homosexual acts were criminal until 1967. Today the law has almost entirely withdrawn from all of these areas. Indeed, it’s moved to the opposite extreme and banned the discrimination that was once compulsory.

一直到18世纪,宗教朝拜都有相应的法律规范。由法律对不同的宗教教派进行区分的情况一直持续到19世纪。直到最近,法律还规范着私人并自愿的性行为。同性恋行为被视为犯罪直到1967年。今天,法律几乎完全退出所有这些领域。不仅如此,它转向了另一个极端,禁止那些曾经是强制性的歧视。

Yet, in other respects, we have moved back to the much older idea that law exists to impose conformity. We live in a censorious age, more so perhaps than at any time since the evangelical movement transformed the moral sensibilities of the Victorians. Liberal voices in England, in Victorian Britain, like John Stuart Mill, were already protesting against the implications for personal liberty. Law, Mill argued, exists to protect us from harm and not to recruit us to moral conformity. Yet, today, a hectoring press can discharge an avalanche of public scorn and abuse on anybody who steps out of line.

然而,在其他方面,我们退回到了更为古老的观念,即法律存在是为了实现一致性。我们生活在一个审慎而挑剔的时代,这种审慎和挑剔可能比维多利亚时代人的道德感受被福音派运动改变以来的任何时候更甚。在维多利亚时代的英国,英国的自由派声音,如约翰斯图亚特米尔,已经在抗议法律对个人自由的影响。“法律之所以存在”,密尔说,“是为了保护我们免受伤害,而不是将我们置于道德服从中去。”然而,今天,一个威严的新闻媒体可以对行为越线的人进行公开的蔑视和辱骂。

Social media encourage a resort to easy answers and generate a powerful herd instinct which suppresses, not just dissent but even doubt and nuance. Public and even private solecisms can destroy a person’s career. Advertisers pressurise editors not to publish controversial pieces and editors can be sacked for persisting. Student organisations can prevent unorthodox speakers from being heard. These things have made the pressure to conform far more intense than it ever was in Mill’s day. It is the same mentality which looks to law to regulate areas of life that once belonged exclusively to the domain of personal judgment. We are a lot less ready than we were to respect the autonomy of individual choices. We tend to regard social and moral values as belonging to the community as a whole, as matters for collective and not personal decision.

社交媒体鼓励寻求简单的答案,因此产生强大的群体本能,这种本能不仅压制异议,也压制疑虑甚至是细微差别。公开的,甚至是私下的错误都可能毁掉一个人的职业生涯。广告商迫使编辑不要发布有争议的作品,如果编辑坚持则可能被解雇。学生组织可以阻止非正统的发言者被听到。这些事情使得服从的压力远远超过了密尔时代。正是同样的心态使人们希望用法律来规范生活中那些本来完全属于个人判断的领域。我们比以前更不愿意尊重个人选择的自主权。我们倾向于将社会和道德价值视为社区的整体属性,应该由集体决策而非个人自主决策。

Two years ago, the Courts and the press were much exercised with the case of Charlie Gard, a baby who had been born with a rare and fatal genetic disease. The medical advice was that there was no appreciable chance of improvement. The hospital where he was being treated applied to the High Court for permission to withdraw treatment and allow him to die. The parents rejected the medical advice. They wanted to take him out of the hands of the NHS and move him to the United States so that he could receive an untested experimental treatment there.

两年前,法庭和媒体围绕Charlie Gard的案件投入了大量精力,Charlie Gard是一名出生时患有罕见致命遗传病的婴儿。医疗机构的建议是没有机会改善其状况。他所在医院向高等法院申请撤去治疗并允许他死亡。Charlie的父母拒绝了该医疗建议。他们想把他从NHS手中带走,带他去美国,以便在那里接受一种未经测试的实验疗法。

The American specialist thought that the chances of improvement were small but better than zero. The parents wanted to take the chance. Unusually, they had raised the money by crowd funding and they were able to pay for the cost without resorting to public funds. This was a case that raised a difficult combination of moral judgement and pragmatic welfare considerations. The Courts authorised the hospital to withdraw therapeutic treatment and the child died.

美国方面的专家同样认为,改善的可能性渺茫,但不是完全没有。Charlie的父母想抓住机会。不同寻常的是,他们已经通过众筹方式筹集到了资金,可以不必使用公共资金来支付费用。这个案例展示了在道德判断和务实的福利考虑之间需要进行艰难的折衷。法院授权医院撤回治疗,孩子死亡。

Now, there are two striking features of this story. The first is that although the decision whether to continue treatment was a matter of clinical judgment, the clinicians involved were unwilling to make that judgment on their own, as I suspect that they would have done a generation before. They wanted the endorsement of a judge. This was not because judges were thought to have any special clinical or moral qualifications that the doctors lacked, it was because judges have a power of absolution. By passing the matter to the Courts, the doctors sheltered themselves from legal liability.

这个故事有两点值得注意。首先,虽然决定是否继续治疗是一个临床判断,但涉事的临床医生不愿自己做出决断,而我认为在同样条件下,上一代医生可能会选择自主判断。如今的医生希望获得法官的认可,这当然不是因为他们认为法官具有任何医生所缺乏的特殊临床或道德资格,而是因为法官具有豁免权。通过将此事提交法院,医生们免于承担法律责任。

Now, that is an entirely understandable instinct. Doctors do not want to run the risk of being sued or prosecuted, however confident they may be of their judgment, but the risk of being sued or being prosecuted only existed because we have come to regard these terrible human dilemmas as the proper domain of law.

当然,这是一种完全可以理解的本能。无论对自己的判断多有信心,医生都不希望冒被起诉或被调查的风险。但这种风险之所以存在,是因为我们选择将这些可怕的道德困境视为当然的法律领域。

The second feature of the case is perhaps even more striking. The Courts ruled that not only should the hospital be entitled to withdraw therapeutic treatment but the parents should not be permitted to take the chance of a cure elsewhere. It wasn’t suggested that moving him to the United States and treating him there would actually worsen his condition, although it would obviously have prolonged it, the parents’ judgment seems to have been within the broad range of judgments which responsible and caring parents could make. Yet in law it was ultimately a matter for an organ of the State, namely the family division of the High Court. The parents’ decision was, so to speak, nationalised.

案件的第二个特征可能更引人注目。根据法院裁定,不仅医院有权撤去治疗,而Charlie的父母也不应被允许带他到其他地方接受治疗。请注意,虽然带Charlie去美国肯定会延长病情,但从来没有人表示这样做会恶化他的病情,Charlie Gard父母的判断完全在关爱而负责的家长的决策范围之内。然而,在法律上,事情最终要由国家机关,即高等法院家庭法庭来决定。可以说,父母的决定权被收归国有了。

Now, I should make it clear that I am not criticising this decision for a moment. I merely point out that it would probably have been a different decision a generation before, even if the question had reached the Courts, which it would probably not have done. Now, I cite this agonising case because although its facts are unusual, it is illustrative of a more general tendency of law. Rules of law and the discretionary powers which the law confers on judges, limits the scope for autonomous decision making by individuals. They cut down the area within which citizens take personal responsibility for their own destinations and those of their families.

当然我应该说清楚,我无意批评这个决定本身。我只是指出,即使交由法院裁决,上一代人的裁决也可能不同,当然如果是上一代人,事情可能根本到不了法院。我现在引用这个痛苦的案例,因为事实本身虽然不同寻常,它所展示的法律倾向其实很普遍。法治和法律赋予法官的自由裁量权限制了个人自主决策的范围,缩减了公民对自身及其家庭的目标负自主责任的领地。

Now, of course, the law has always done this in some areas. The classic liberal position, again, it was John Stuart Mill who expressed it best, is that we have to distinguish between those acts which affect other people, and are therefore proper matters for legal regulation, and those which affect only the actor, in which case they belong to his personal space. So we criminalise murder, rape, theft and fraud, we say that the morality of these acts is not something that should be left to the conscience of every individual. Not only are they harmful to others but there is an almost complete consensus that they are morally wrong. What is new is the growing tendency for law to regulate human choices even in cases where they do no harm to others and there is no consensus about their morality.

当然,在某些领域法律一直是这么做的。经典的自由主义立场,约翰·斯图亚特·米勒描述的最为恰切,“我们必须区分那些对他人有影响的行为,因此应当由适当的法律监管的问题,和那些只影响参与者的行为,它们属于私人领域。”因此,我们将谋杀,强奸,盗窃和欺诈定为犯罪,我们说这些行为道德与否不应该留给每个人的良心。它们不仅对他人有害,而且被一致认定在道德上是错误的。不同于以往的是,我们越来越倾向于使用法律来规范那些并不伤害他人,也没有道德共识的领域。

A good example is provided by some recent animal welfare legislation. Take fur farming. England and Scotland, in common with some other European countries, have over the last few years banned fur farming. The reason is not that the farming and humane slaughter of furry animals for human use is itself objectionable, most people accept that rearing and killing animals for food, for example, is morally acceptable but we don’t eat beavers or minks. The sole reason for farming them is their fur. The idea behind the statutory ban is that the desire to wear a beaver hat or a mink coat is not a morally sufficient reason for killing animals, whereas a desire to eat them would be. Yet many people would disagree with that judgment. Some of them are happy to wear fur, even if others disagree, but Parliament has decreed that fur farming is not a matter on which they should be allowed to make their own moral judgments. Similar points could be made about the extremely elaborate legislation which now regulates the docking of dogs’ tails. It allows the practice where it has a utilitarian value, for working dogs, for example, but not where it’s only value is aesthetic, for household pets or for dog shows.

最近的动物福利立法提供了一个很好的例子,比如毛皮养殖。与其他一些欧洲国家一样,英格兰和苏格兰在过去几年中先后禁止毛皮养殖。倒不是因为养殖这些动物而后进行人道屠宰本身就令人反感——大多数人都觉得为了食物饲养然后杀死动物在道德上是可以接受的,只不过我们不吃海狸或水貂,养殖它们的唯一目的是它们的毛皮。禁令背后的逻辑是,穿上海狸帽或貂皮大衣的愿望在道德上不足以成为杀死动物的充分理由,而吃掉它们的愿望则足够充分。然而,许多人不同意这种判断。一些人很乐意穿毛皮,即使其他人不同意。但议会已经下令毛皮养殖不是一个允许个人选择的道德判断。在对修剪狗尾巴的极其精细的立法中,我们可以看到类似的逻辑。在具有实用价值的地方,比如工作犬,对狗尾巴进行修剪是允许的,但如果仅仅出于美学价值考虑,比如作为宠物或为了参加展出,对尾巴进行修剪,则是不允许的。

Now, I don’t want to get into an argument about the rights or wrongs of laws like these, I’m genuinely neutral about that. The point that I am making is a different one. These laws are addressed to moral issues on which people hold a variety of different views but the law regulates their choices on the principle that there ought to be only one collective moral judgment and not a multiplicity of individual ones. Now, that tells us something about the changing attitude of our society to law. It marks the expansion of the public space at the expense of the private space that was once thought sacrosanct. Even where there are no compelling welfare considerations involved, we resort to law to impose uniform solutions in areas where we once contemplated a diversity of judgment and behaviour. We are afraid to let people be guided by their own moral judgments in case they arrive at judgments which we do not agree with.

当然,我无意讨论就这些法律本身的对错,我对此完全中立。我要探讨的是另外的问题。这些法律被用于人们持有各种不同观点的道德问题,但法律以此原则规范了这些问题,这原则是应该只有一个集体道德判断而不是多个个体道德判断。注意,这说明了我们的社会对法律的某些态度转变。它标志着公共空间的扩张,这种扩张牺牲了曾经被认为是神圣不可侵犯的私人空间。在即使不涉任何令人信服的福利因素的情况下,我们仍然指望法律给出统一的解决方案,而在这些领域,我们本曾考虑过多样化判断和行为。我们害怕让人们受到他们自己的道德判断的指导,害怕他们得出我们不同意的判断。

Let us now turn to the other major factor behind the growing public appetite for legal rules, namely the quest for greater security and reduced risk. This is particularly important in the areas of public order, health and safety, employment and consumer protection, which are the areas that present the main risks to our wellbeing and account for a high proportion of modern law making. People sometimes speak as if the elimination of risk to life, health and wellbeing was an absolute value but we don’t really act on that principle, either in our own lives or in our collective arrangements.

现在让我们转向驱动法律规则日益增长的另一个主要因素,即寻求更高的安全性和更低的风险。在公共秩序,健康和安全,就业和消费者保护等领域,这些也是我们的福祉面临主要风险的领域,提高安全性降低风险就尤为重要,因此这些领域也占了现代立法的很大比例。有人说,消除生命、健康和福祉中的风险有绝对的价值。但实际上,无论是在个体生活中还是集体中,我们并不真的按照这一原则行事。

Think about road accidents. They are, by far, the largest source of accidental, physical injury in this country. We could almost completely eliminate them by reviving the Locomotive Act of 1865 which limited the speed of motorised vehicles to 4 miles an hour in the country and 2 in towns. Today, we allow faster speeds than that, although we know for certain that it will mean many more people being killed or injured, and we do this because total safety would be too inconvenient. Difficult as it is to say so, hundreds of deaths on the roads and thousands of crippling injuries are thought to be a price worth paying for the ability to get around quicker and more comfortably. So, eliminating risk is not an absolute value, it’s a question of degree.

以道路交通事故为例。截至目前,交通事故是英国身体意外伤害的最主要来源。如果恢复1865年的机车法案,将机动车辆的速度限制在郊外4英里/小时,城镇2英里/小时,则几乎可以完全消除这些交通事故。今天,虽然明知会导致更多的人受伤或者死亡,我们还是允许更快的速度。我们这样做是因为完全的安全带来极大的不便。不大说得出口,但是道路上数百人死亡和成千上万的严重伤害被认为是为更快更舒适地出行值得付出的代价。由此可见,消除风险并非绝对价值,是可以权衡折衷的。

Some years ago the Courts had to deal with the case of a young man who had broken his neck by diving into a shallow lake at a well-known beauty spot. He was paralysed for life. The local authority was sued for negligence. They had put up warning notices but his case was that since they knew that people were apt to ignore these warning notices, they should have taken steps to close off the lake altogether. The Court of Appeal agreed with that. But when the case reached the House of Lords the judges pointed out that there was a price to be paid for protecting this young man from his own folly. The price was the loss of liberty which would be suffered by the great majority of people who enjoyed visiting the lake and were sensible enough to do it safely.

几年前,法庭不得不处理一名年轻男子的案子,他因在一个著名的景点的浅湖潜水而摔伤了脖子造成他终身瘫痪。地方当局被诉疏于管理。虽然他们放置有警告信息,但在他的诉讼说,既然当局明知道人们习惯于忽略这些警告,他们应该采取措施完全关闭湖泊。上诉法院支持了这一点。但是当案件进入上议院时,法官们指出要保护这个年轻人免受他自己的愚蠢行为的损害需要付出额外代价,就是绝大多数人欣赏风景的自由,他们本可以在欣赏风景的同时明智地保证自己的安全。

The law lords had put their finger on a wider dilemma. Every time that a public authority is blamed for failing to prevent some tragedy like this, it will tend to respond by restricting the liberty of the public at large in order to deprive them of the opportunity to harm themselves. It’s the only sure way to deflect criticism. Every time that we criticise social workers for failing to stop some terrible instance of child abuse we are, in effect, inviting them to intervene more readily in the lives of innocent parents in case their children too may be at risk.

上院法官们指出了一个更宽泛的两难选择。每当公共权力机构被指未能阻止类似的悲剧,它往往会以限制公众的自由的方式做出回应,以绝后患。这是确保转移批评的唯一办法。每当我们批评社工未能阻止一些可怕的儿童虐待时,我们实际上是邀请他们更踊跃地干预无辜父母的生活,以防这些父母的孩子面临同样的风险。

The law can enhance personal security but its protection comes at a price and it can be a heavy one. We arrive, therefore, at one of the supreme ironies of modern life. We have expanded the range of individual rights, while at the same time drastically curtailing the scope of individual choice. Dilemmas of this sort have existed for centuries. What has changed in recent years is the degree of risk that people are prepared to tolerate in their lives. Unlike our forebears, we are no longer willing to accept the wheel of fortune as an ordinary incident of human existence.

法律可用来保护个人安全,但其保护有时需要付出沉重的代价。由此,我们面临现代生活的终极的讽刺之一: 我们扩大了个人权利的范围,同时大大减少了个人选择的范围。这种困境已经存在了几个世纪。近年来人们在生活中愿意容忍的风险程度发生了变化。与我们的先辈不同,我们不再愿意接受命运之轮为人类生存安排的微不足道的意外。

We regard physical, financial and emotional security not just as a normal state of affairs but as an entitlement. Some people will welcome this change. Others will deplore it. Most of us probably take different views about it at different moments of our lives but none of us should be surprised. It is a rational response to important changes in our world. Improvements in the technical competence of humanity have given us much more influence over our own and other people’s wellbeing but they have not been matched by corresponding improvements in our moral sensibilities or our solicitude for our neighbours.

人身安全,财产安全和情感安全不再被是为平常之事,而是应有的权利。这种变化有人欢迎,有人憎恶。绝大多数人在人生的不同时刻持不同的看法,但我们都不喜欢意外。这是对我们周遭重要变化的理性反应。人类技术能力的提高使我们对自己和他人的福祉具有更大的影响力,但我们的道德素养和对邻居的关怀并未相应提高。

Misfortunes, which seemed unavoidable to our ancestors, seem eminently avoidable to us. Once they are seen to be avoidable consequences of human agency, they tend to become a proper subject for the attribution of legal responsibility. So, after every disaster we are apt to think that the law must either have been broken or be insufficiently robust. We look for a legal remedy, a lawsuit, a criminal prosecution or more legislation. “There ought to be a law against it,” is the universal cry. Usually there is or soon will be.

那些在我们的先辈看来不可避免的不幸,在我们看来是可以绝对避免的。一旦被视为可完全避免的后果,这些不幸就变成了某种法律责任的正当归因对象。所以,每次灾难之后,我们都认为,只要法律足够健全,就一定是有人违法了。我们寻求法律解决方案,或诉讼,或刑侦或更多立法。普遍的呼声是,“必须法律防止此事”。通常很快就有了。

Of course, the law doesn’t in fact provide a solution for every misfortune. It expects people, within limits, to look after their own interests. It assumes that some risks may have to be accepted because the social and economic costs of eliminating them are just too high. However, public expectations are a powerful motor of legal development. Judges don’t decide cases in accordance with the state of public opinion but it is their duty to take account of the values of the society which they serve. Risk aversion has become one of the most powerful of those values and is a growing influence in the development of the law.

法律当然无法为所有的不幸提供解决办法。法律需要每个人在能力之内,照看好自己的权益。法律假定人们必须接受某些风险,因为完全消除这种风险的社会和经济成本太高。然而,公众期望是法律扩张的重要驱动力。法官固然无需根据公众舆论裁决案件,考虑所在社会的价值观却是法官的责任所在。规避风险已经是这些价值观中最强大者,对法律发展的影响与日俱增。

These gradual changes in our collective attitudes have important implications for the way that we govern ourselves. We cannot have more law without more State power to apply it. The great 17th century political philosopher, Thomas Hobbs, believed that political communities surrendered their liberty to an absolute monarch in return for security. Hobbs has very few followers today but modern societies have gone a long way towards justifying his theories. We have made a leviathan of the State, expanding and harnessing its power in order to reduce the risks that threaten our wellbeing. The 17th century may have abolished absolute monarchy but the 20th century created absolute democracy in its place.

这种集体态度的逐渐变化对于我们如何自我管理有重要影响。如果不赋予国家更多强制力,就无法执行越来越多的法律。17世纪的大政治哲学家Thomas Hobbs认为当时的政治圈子将自身自由让渡给君主,以换取安全。Hobbs在今天罕有追随者,但是现代社会在证明其理论正确性方面走了很远。我们把国家变成了利维坦,扩张并利用其权力,以期减少那些威胁我们福祉的风险。17世纪我们废除了君主制,20世纪的今天,我们在原地建立了绝对的民主。

How to limit and control the power of the State is an evergreen question. A modern State’s monopoly of organised force and its growing technical capacity have made it a more urgent question for our age than it ever was for our ancestors, but the nature of the debate is inevitably different in a democracy. Our ancestors looked upon the State as an autonomous power embodied in a powerful monarch and his ministers. It was natural for them to talk about relations between the State and its citizens in us and them terms but in a democracy the State is not other, it is not either with us or against us, it is us, which is why most of us are so ambivalent about it. We resent its power, we object to its intrusiveness, we criticise the arrogance of some of its agents and spokesmen but our collective expectations depend for their fulfilment on its persistent intervention in almost every area of our lives. We don’t like it but we want it. The danger is that the demands of democratic majorities for State action may take forms which are profoundly objectionable, even oppressive, to individuals or to whole sectors of our society.

如何限制和控制国家权力是一个常新的问题。现代国家对有组织力量的垄断及其不断发展的技术能力,使这个问题在如今比我们祖先的时候更为紧迫,但是辩论的性质在民主制度中自然有所不同。我们的祖先将国家视为一个强大的君主及其大臣所体现的自治力量。他们自然而然地用我们和他们来谈论国家与公民之间的关系,但是在民主制度中,国家不是他们,国家既不跟我们站在一期,也不是反对我们,国家就是我们,这就是为什么我们大多数人对此很矛盾。我们对它的力量感到愤慨,我们反对它的侵扰,我们批评它的某些代理人和发言人的傲慢自大,但我们的集体期望有赖于他们对我们生活几乎每个领域的持续干预。我们不喜欢它,但我们想要它。危险在于,多数派对国家行动的要求,可能采取对个人以至社会的各个部分都极度令人反感甚至压迫的形式。

In the next lecture I shall turn to the challenge of taming the leviathan, of controlling the actions of the democratic State.

在下次讲座中,我会转向驯服利维坦,控制民主国家行为的所面临的种种挑战。

(AUDIENCE APPLAUSE)

 

 

 

ANITA ANAND: Jonathan, thank you very much indeed. We’re going to open this up for questions in just a moment from our audience here at Middle Temple but one thought that I had when I was hearing you speak, the expansion of law, surely isn’t that just a natural consequence of a more complex society? You know, we have more lawyers but we also have more accountants, we have more actuaries, more of us, doesn’t this just show that we live in a more complicated service economy?

Jonathan, 非常感谢。中殿的听众很快就要开始提问。在提问开始之前,我在听的时候产生的疑问,您所说的法律的扩张,一定不是社会复杂度增加的自然结果吗?律师是更多了,但是会计师,精算师,我们记者,这是不是说明,我们只是生活在一个更复杂的,服务型经济中呢?

JONATHAN SUMPTION: I’m sure that we do but we still have a choice as to whereabouts, and quite a broad spectrum, we place the intrusiveness of law and of the State. My point is that in areas where we do have a choice, we have opted for the more intrusive end of the scale.

当然。但是关于法律和国家对个体的干预应该被容许到什么程度,在很大程度上,仍然是一个可选择的问题。我指出的是,在那些我们有选择空间的领域,我们选择了更多的干预。

ANITA ANAND: Okay. Let’s, first of all, take a question here.

好的。第一个问题,这里。

NICK HARDWICK: Hello, I’m Nick Hardwick from Royal Holloway University of London. If it is the case, as you suggest, that lots of people think that the State can and should prevent some of the public tragedies that occur, does it not also follow from that that if they fail to do so, that there is some individual to blame and don’t the interests of justice require those individuals to be held accountable or does that increase the kind of risk averse behaviour by public officials that maybe have a whole set of untoward consequences?

你好,我是来自伦敦皇家哈洛威学院的Nick Hardwick。如果如您所说,很多人认为国家能够而且应该预防一些公共悲剧,自然而然地,如果悲剧未能被预防,一定需要有人担责?要求个人担责不也是正义所在吗?还是说这样会导致公职人员推卸责任这样的整体后果?

JONATHAN SUMPTION: I fundamentally disagree with your view about that. I think that it is one thing to say that we need a system of regulation which reduces risk – we want such a system, there’s absolutely no doubt about that – and it’s another thing to conclude that someone is to blame whenever it breaks down. All human institutions break down at the margins, all of them, and of course there’s a large element of judgment in deciding where to pitch the standard of care. You can pitch it at a level which would be extremely effective but unpleasantly intrusive. You can pitch it at a level which is so low as to be ineffective. I think most of us believe that it should be somewhere in between. But I don’t think that the exercise of reducing risk is a tool assisted by the search for scapegoats or for objects of vengeance.

 我从根本上不同意您的看法。我认为,我们需要一个能够降低风险的系统——我们确实想要这样的系统,没有疑问——这是一回事;但是由此得出结论说一旦系统有问题就要有人担责,那是另外一回事。所有的人类机制都会在其边界处失效,无一例外。当然,我们可以在很大程度上确定系统关心的标准。你可以给系统定下极高的关心标准,这系统对个人的侵扰程度必然很高。你也可以将关心标准设定的很低,因此可能无效。我想绝大多数人相信标准应该在中间什么地方。但是我不认为减低风险本身应该成为借以寻找替罪羊或者进行报复的手段。

ANN WHALEY: My name is Ann Whaley from Chalfont St Peter in Buckinghamshire. Lord Sumption, you criticised the expansion of the law into areas that have historically been the remit of politicians but when we have a broken law that is causing a great deal of suffering to many people, where else do we turn to but the Courts if politicians refuse to act? The blanket ban on assisted dying is one example. It forced my husband Geoffrey to make the difficult decision to travel to Dignitas in Switzerland earlier this year. He was dying of motor neurone disease and simply wanted to avoid the final agonising weeks that lay ahead. I helped him by arranging his final flight and accompaniment. By doing this I was criminally accused by an anonymous notification of our plans and I was interviewed under caution.

 我是Ann Whaley,来自Buckinghamshire的Chalfont St Peter。Sumption勋爵,您批评法律不该侵入那些传统上属于政治的领域,但是当法律因其不足给很多人造成苦难的时候,而政治人物又拒绝修补的时候,除了寻求法院的帮助还能怎么办呢?对辅助死亡的全面禁止就是一个例子。这种全面禁止迫使我的丈夫Geoffrey不得不在今年早些时候到瑞士。他即将死于运动神经疾病,只想避免最后几周的痛苦。我帮他安排了最后的航程和陪伴。但计划遭匿名举报,我被刑事指控,在警戒措施下接受了采访。

We were terrified that Geoff might be stopped from travelling or that I might be arrested. The investigation was eventually dropped but the police intrusion into our lives devastated our family. The current law on assisted dying is not working and a huge majority of the public wants to see a change.

我们很担心Geoff可能无法去瑞士,或者我可能被逮捕。调查最终撤销了但是警察的侵扰毁掉了我们的家庭。现在的辅助死亡法律完全无效,绝大多数公众希望看到改变。

ANITA ANAND: Okay. Let – do you mind if I just put that to Jonathan Sumption?

 好的 ——让Jonathan Sumption就回答这个问题你看可以吗?

JONATHAN SUMPTION: I entirely understand the concern that you have but I think that what I would not accept was that it necessarily means that decisions on these matters have to be made by judges. The problem is that this is a major moral issue and it is an issue on which, although you say that the public is overwhelmingly in favour, a lot of polling evidence suggests that that rather depends on the degree of detail which goes into the asking of the question. But on any view, this is a subject on which people have strong moral values and on which they disagree. There is a large number of people who feel – I’m not expressing my own opinion, I am simply pointing out that there are many people who feel – that a – changing the law so as to allow assisted suicide would render large numbers of people vulnerable to unseen pressures from relatives and so on. There are others who feel that the intervention of somebody in the life of another so as to end it is morally objectionable. Now, the question that one has to ask is how do we resolve a disagreement like that? It seems to me that where there is a difference of opinion within a democratic community we need a political process in order to resolve it.

 我完全理解你的关切,但我不认为这就意味着事情必须由法官来进行决断。问题在于,辅助死亡是一个重大的道德难题,而且,虽然你说公众都支持,很多调查显示公众的支持程度取决于调查时问题的细节。不管怎么说,关于这个问题人们的道德感强烈而意见不同。有很多人认为——我不是在表达我的观点,只是指出别人的想法——改变法律允许辅助自杀将会陷很多人于来自亲人的压力之中。还有一些人觉得由外人来干预生命在道德上完全不可接受。在这样的情况下,应该问的问题时,我们该如何解决这样的分歧?在我看来,任何时候在民主共同体内部有不同意见,都需要一个政治过程来解决。

ANITA ANAND: May – may I ask you a question? I’m going to come back to you. Even though you’re retired, you seem very unwilling to state what you feel and what you think.

主持人:我能问一个问题吗?(向提问者)马上回答您的问题。(向Lord Sumption)您已经退休了,但好像仍然非常不愿意表达自己的想法和感受?

JONATHAN SUMPTION: I’ll tell you exactly what I think about this. I think that the law should continue to criminalise assistance in suicide and I think that the law should be broken. I think that it should be broken from time to time. We need to have a law against it in order to prevent abuse but it has always been the case that this has been criminal and it has always been the case that courageous relatives and friends have helped people to die, and I think that that is an untidy compromise of the sort that I suspect very few lawyers would adopt, but I don’t believe that there is necessarily a moral obligation to obey the law and, ultimately, it is something that each person has to decide within his own conscience. That – that’s something that I think. That is where it ought to be decided.

 Lord Sumption:我可以告诉你我的看法。我认为法律应该继续将辅助自杀视为犯罪,同时我认为(在此情境下)应该违法。我认为可以在必要的时候违法。我们需要这样的法律以避免辅助自杀的泛滥,另一方面法律一直是这样的而有勇气的亲属和朋友也一直在帮助亲人结束生命。我认为这是不算一种有条理的折衷,可能少有律师会这么处理,但我确实不认为守法的必然的道德约束,而这一点归根结底,应该由每个人根据自己的良心来决定。这就是我的想法。需要确定的,是是否遵守法律的问题。

ANITA ANAND: I am very grateful that you answered that with as much candour. Can I just go back to the person that raised the question?

 主持人:非常感谢你的如此坦率的回答。我可以回到刚才的提问者吗?

ANN WHALEY: Me.

 我。

ANITA ANAND: How do you react to the point that was made by Jonathan, which is don’t change the law but break the law, which is essentially what he said?

 主持人:对于Jonathan的观点你怎么回应,他说不用修改法律,如果必要可以违反法律,这是他的意思。

ANN WHALEY: No. The law needs an adaption. I thoroughly agree with Lord Sumption that there has to be a law against suicide.

 ANN Whaley:我不同意。法律需要调整。我完全同意Sumption勋爵说需要有防止自杀被滥用的法律。

ANITA ANAND: Okay.

 Anita Anand: 好的

ANN WHALEY: There’s two points. The fact that somebody assisting obviously has to be covered.

 Ann Whaley:有两点。有人辅助这一点必须要考虑到。

ANITA ANAND: Yes.

 Anita Anand:

ANN WHALEY: But there’s a compassionate point as well, which should be not that I should have had to go through caution and all that time before the case was obviously finally dropped, and the second point is the law can be adapted to accommodate those of sound mind with a terminal illness who’ve had – and it can be proved, psychiatrically, that there is no – no pressure from anybody and my husband had to go through a great deal to prove this himself.

 Ann Whaley:但是出于同情心进行辅助,也同样重要。我不应该在调查被撤之前一直被置于警戒措施之下。第二点是,可以调整法律以容许那些头脑清醒的绝症病人——这些可以被证明——精神上没有收到任何外来压力的人自己结束生命。而现在我丈夫必须要历经艰难地自我证明。

ANITA ANAND: Thank you so much. Thank you very much for sharing a very personal and, I appreciate, a very painful case with us. Yes, over here?

 Anita Anand:非常感谢!感谢你愿意分享一个这么私人的痛苦的案例。

好的,那边?

HELENA KENNEDY: Helena Kennedy. I’m a barrister, member of the House of Lords. Lord Sumption, I think that you’re rather nostalgic about the past and that you see it through rather rose-tinted glasses. One of the things that has happened is that people have actually turned to the Courts to deal with abuses of power and that has been a very important development, and so the expansion of law has actually been a good thing because many people are able to take their claims to the Courts and the Courts are the right place to take them, otherwise we would have either people feeling totally disempowered or they would take to, perhaps, the streets instead.

 我是Helena Kennedy,大律师,上议院议员。Sumption勋爵,我觉得你有些怀旧,甚至是透过玫瑰色眼镜看过去。已然发生的情况之一是,人们通过法庭对付权力滥用问题,这是很重要的发展。所以法律的扩张是有益的,因为很多人可以将自己的主张诉诸法庭,而法庭也是处理这种问题的正当场所。否则的话,人们会觉得完全无助,要不然就可能走上街头了。

JONATHAN SUMPTION: Your question assumes that I am opposed to the expansion of the domain of law. All that I am doing is pointing out that it has expanded, and the reason why I’m doing that is to try and explain why it is that law has acquired a greater space in our lives and in order to explain why we have enormously empowered the State in ways that, I quite agree with you, do need to be controlled. Whether law is the best way of doing that is one which I propose to deal with in the second and third lectures in this series.

 Jonathan Sumpiton:你的问题假定我反对法律领域的扩张,但我所做的仅仅是指出法律扩张了。而我之所以要指出这一点,是为了解释法律是如何获取其领地的,以及国家如何被赋予巨大的权力——在这一点上我很同意你的看法,这权力必须要进行制衡。法律是不是制衡的最佳办法,我准备在本系列的第二次和第三次讲座中讲解。

PATRICK O’CONNOR: Patrick O’Connor, barrister. Lord Sumption, you do suggest that the expanded scope of the law has restricted personal liberty and there was more than a whiff of nostalgia, your mentioning an earlier society featuring custom convention and personal autonomy, so perhaps there was a little bit of a tease in your answering Helena Kennedy. I think you are taking an implicit position here which will no doubt become clearer in the next lectures. In fact, people in that earlier society before the law had little effective freedom, didn’t they, not least because of unrestrained power and exploitation in the marketplace and in politics?

 我是Patrick O’Connor,大律师。Sumption勋爵,您确实暗示法律的扩张限制了个人自由,而且不只是一点怀旧之情,您还提及早期社会的习俗和个人自治,所以您对Helena Kennedy的回答可能有些轻巧。我认为你隐含了一种在之后的演讲中会越来越清楚的立场。实际上,在没有法律的早期社会中,人们没有多少实质性的自由,对吧?真的完全不是因为政治权力和市场上剥削不受限制吗?

You do seem, in some of your statements, to be uncomfortable with the rise of broad democracy and the welfare state. You wrote in your book Equality, and I quote, “It is more comforting to think that one is poor because one belongs to the class whose lot it is to be poor.” Now, your view that the law should be a separate thing from social justice is simply tired, old neo-liberal dogma, isn’t it, taken straight from F A Hayek. So what practical proposal do you have today for how the law should disengage from involvement with sustaining social justice, because without such a proposal, are you not just whistling in the wind?

您好像确实对广泛民主的崛起感到不自在。您在《平等》一书中写道,“It is more comforting to think that one is poor because one belongs to the class whose lot it is to be poor”。您的看法,法律应该跟社会公正分开,是老套的新自由主义教条,完全取自哈耶克,对吧?所以在今天,对于将法律与维护社会公正分开,您有什么样的实际建议呢?因为如果没有实际方案,所有这些不都是徒费口舌吗?

JONATHAN SUMPTION: I greatly admire the psychological penetration with which you claim to have analysed my true views when I haven’t actually expressed them. I do not feel the slightest nostalgia for the earlier period. I have not said so and what you claim to have detected in my tone of voice is simply not there.

 Jonathan Sumption: 我非常佩服您的心理透视能力,在我表达之前就指导了我的真实想法。我对过去没有任何怀旧之情。我没有这么说过,而你声称侦测到的弦外之音根本就是子虚乌有。

ANITA ANAND: Let’s – let’s take a—–

 Anita  Anand: 我们

(AUDIENCE APPLAUSE)

(听众掌声)

ANITA ANAND: Let’s take a question from the gentleman there?

 Anita Anand: 下一个问题,那边的先生?

IMRAN KHAN: Imran Khan, lawyer, not cricketer turned politician, just to be clear. Referring to the issue of law as a blunt instrument, I don’t know whether you’d agree, the state through its politicians, notably, set the tone and tenor of how society operates and oftentimes, and I’m talking particularly recent times, certain communities, minority communities, are targeted and vilified. And it seems to me, from my professional work, that the only way to provide the rights to those minority communities is through the application and the use of the law, particularly because it has principles of natural justice and fairness and rights, and I wonder whether I could get your comments on that, please?

 Imran Khan: 我是Imran Khan,律师,可不是那个从板球运动员变身政治人物的Imran Khan。谈到法律是一种粗笨的工具,不知道你是否同意,政权可以通过,首先是政治人物,为社会运作设定基调和期间,而经常,尤其是近来,某些社区,某些少数族裔社区,成为中伤的目标。而在我看来,法律,因为其天然的正义、公平和权利原则,成为这些为少数族裔社区赋权的唯一途径。对此,请问您怎么看呢?

JONATHAN SUMPTION: Well, there’s nothing that you have said that I would disagree with, although, I mean, you speak generally of rights and an enormous amount depends on the particular right that you are talking about. There are many rights which are absolutely properly embodied in some kind of entrenched form, as with our Human Rights Act. There are other rights which lend themselves much less well to that kind of treatment. I think one needs to be a great deal more specific.

 Jonathan Sumption:您说的我都不反对,当然,你是笼统地谈到权利,而大量的情况要看具体什么权利。有很多权利,绝对有必要以某种方式固定下来,比如人权法案。另外一些权利则不那么适合这种方式。你可能需要非常具体才好讨论。

ANITA ANAND: Did you want to be more specific?

 Anita Anand: (对提问者)你要更具体一些吗?

IMRAN KHAN: Yes. It’s really about the use of the law in order to promote the rights of minorities. The only way to get the rights of those individuals and protect that community which is, by its very nature, a minority community and a vulnerable community, it’s only the use of the law that you can achieve positive rights or the rights for the – that section of society. That is not, it seems to me, a blunt instrument.

 Imran Khan:是的。我说的实际上是使用法律为少数族裔维权的问题。为那些天然地处于少数、弱势地位的族裔争取权利的唯一办法,是使用法律。这种法律使用,似乎也不能算不精细?

JONATHAN SUMPTION: Well, it would depend on what law you’re talking about. I mean law, essentially, operates on ordinary citizens through criminal sanctions. It operates on governmental ministers and officials through the device of quashing their decisions. I think that there are times when the only way in which you can achieve a result is to go in for a measure of overkill, so I’m certainly not saying that blunt instruments are wrong in all cases.

 Jonathan Sumption: 我想,还是要看具体什么样的法律。我是说,法律对于普通公民来讲,主要是排查犯罪,对政府部长和官员来讲,主要是限制他们的决定。我认为,在某些情况下为达到某个结果可能无法设定充分灵活的标准,所以我当然不是说将法律作为粗笨工具使用就一定错了。

ANITA ANAND: A law against holocaust denial, how do you feel about that? Jonathan?

 Anita Anand: 禁止否认大屠杀,你觉得这样的法律粗笨吗?Jonathan?

JONATHAN SUMPTION: I would be opposed to a law against holocaust denial because I think that there is absolutely no nonsense – with one exception and I’ll come to it – there is no nonsense that people should not be allowed to spout if they are foolish enough to want to do so. The exception that I would make is that free speech is perfectly legitimately curtailed in circumstances where it would lead reasonable people, or reasonable groups, to violence and that’s, broadly, the position that the law does take. But the idea that one should actually criminalise, as many European countries do, the expression of opinions simply because they are rubbish, strikes me as – as repellent.

 Jonathan Sumption: 我会反对禁止否认大屠杀的法律,因为我认为无论什么样的胡说八道——除了一样,我马上会提到——都不应该被禁止,如果有人坚持要说的话。但对于能够在导致完全理性的个人或者群体中引发暴力的言论除外。广义地说,这也是目前法律的立场。但是,像很多欧洲国家那样,仅仅因为某些言论荒唐,就将其入罪,这种想法我非常排斥。

ANITA ANAND: Yes, a question over here. Thank you.

 Anita Anand: 好的,那边有人提问。谢谢你!

SAILESH MEHTA: Sailesh Mehta, barrister. Are the politics of judges becoming more and more important for us to know about?

 Sailesh Mehta: 我是Sailesh Mehta,大律师。法官的政治倾向对于我们是不是越来越重要,应该让人知道了?

JONATHAN SUMPTION: A short answer to your question is that I think that it would be a very bad idea to vet the politics of judges. The oddity is that the – the rule we currently have is there’s nothing wrong with judges having an opinion but there is something wrong when they’re expressing it or allowing it to become known. Now, that might be thought not a particularly logical state of affairs but pragmatically it works in a sensible way. It means that judges do not make public statements which diminish the confidence that litigants and others will have in their decisions.

 Jonathan Sumption: 简单地说,我认为审查法官的政治观点是非常糟糕的想法。

One of the problems that I have, and it’s something that I want to expand on in future lectures in this series, is that there are some issues that are put before judges for decision which are, frankly, impossible, areas where it’s impossible for them not to be influenced by their opinions, because they are questions which really are not so much what is the law but what should the law be. It is very difficult to answer the question what should the law be without expressing an opinion of your own on the subject.

 

BEN DEAN: Ben Dean, I’m not a lawyer but I am a fan of Ally McBeal. If there were a number of people who were described in a newspaper as being “the enemies of the people”, do you welcome that as a great expression of the freedom of the press or are you worried about the political and public pressure being placed on senior lawyers?

 

JONATHAN SUMPTION: I think that the criticism on that headline of the divisional court in the Miller case was, frankly, absurd. One of the interesting things was that when the case came to the Supreme Court there was no criticism along those lines and I think that the main reason for that was that the proceedings were broadcast. It was quite obvious to anybody who listened into extracts on the news or parts of the actual webcast that this was actually a dispute about law. However, there is another aspect of this which is that it is a traditional function of ministers to defend judges from abuse of that kind and that was a duty which the ministers involved, lamentably, failed to perform.

 

ANITA ANAND: Thank you very much. I have a supplementary. Do you know who Ally McBeal is?

 

JONATHAN SUMPTION: No.

 

ANITA ANAND: Okay. Question from the front.

 

JONATHAN SUMPTION: Aren’t you going to tell me?

 

ANITA ANAND: Oh, yes. She’s a lawyer in an American drama serial that went on forever.

 

JONATHAN SUMPTION: Okay. Right.

 

ANITA ANAND: Okay. I just wanted to go back to that very interesting question that we had here about the judges being described as saboteurs in a – in a newspaper, and you said that there was a lamentable failure from those who are in politics to do their duty, which was to protect judges. I notice that we have two former politicians. Malcolm Rifkind and Edward Garnier are both here. Do you recognise that characterisation?

 

EDWARD GARNIER: Well, I saw it happen. There was, as Lord Sumption says, a lamentable failure of the government, or the relevant ministers, to protect the judges who had been pilloried. The problem, it seems to me, and I spent 25 years in the House of Commons before being booted upstairs, is that there is a failure of understanding of the role that the law and the judiciary play in the constitution by members of Parliament and that’s why we get these sorts of eruptions. A hundred years ago the Lord Chancellor would have been hot on that. Nowadays they don’t seem to understand what the point of it is.

 

JILL RUTTER: Hello. I’m Jill Rutter from the Institute for Government. I want to ask a slightly different question, because you’ve talked about the borderline between law and politics and I want to talk about lawyers and politicians. Very often when politicians are presented with a, sort of, intractable problem or a crisis, their immediate reaction is to default to what we call a judge-led inquiry. The problem is too difficult, it’s too toxic, too controversial for politicians to sort out and so we grasp for a judge, knowing slightly that that will mean that there’s quite a long time before the issue comes back and they may very well have moved on. But I wonder whether you’ve thought that we, the people in government, resorted too often to judge-led inquiries, whether you yourself thought that that was a good way of resolving some of these issues, whether we look at, sort of, Leveson, Bloody Sunday, lots of these sorts of really difficult issues? Is that right? When should people do it and when should actually politicians just say no, actually, this is something we politicians need to sort out?

 

JONATHAN SUMPTION: It depends wholly on the – on the issue which the inquiry is looking at. I – I’m inclined to agree that there are some inquiries, and it may be that Sir Brian Leveson’s inquiry was one of them, which basically raised questions of political judgment on which the conclusions of a judge conducting an inquiry are simply not likely to be very helpful, as one can see from the fact that Sir Brian Leveson’s recommendations were largely ignored, and the second part of his inquiry, which was going to trespass on more sensitive aspects of the relations between the press and the state, was dropped. The reason for that was that ultimately the politicians were unwilling to take the risk of having the second part of the inquiry, they’d rather decide it themselves.

 

To my mind, it is such an intensely political question, how far you regulate the press, that it would seem to me that it’s a matter on which members of Parliament and ministers should make their own mind up but there are clearly many other inquiries where you need a substantial amount of information in order to make a sensible judgment. There are also, of course, inquiries into what I can loosely call scandals, so Matrix Churchill, for instance, where nothing short of an inquiry independent of government would have performed the essential function of reassuring the public that this had been properly looked into.

 

ANITA ANAND: We have time for one more question and there’s a gentleman there who’s been incredibly patient. So let us go to you, sir.

 

IMRAN KHAN: Good evening. My name’s also Imran Khan. I’m not that one or that one. I’d like to stay on this theme of the law in Parliament because, Lord Sumption, I feel like you’ve described the law as a slightly inert, maybe even hapless bystander, as society and Parliament have stepped back and – and the law has, sort of, stepped up to do its job and I wonder if that’s entirely fair? If you look at the House of Commons, for instance, about one in six or one in seven of its members are lawyers, which vastly outnumbers their proportion in society and certainly outnumbers their proportion of, let’s say, social workers or doctors or scientists, and maybe part of the antidote to the phenomenon you’re describing is lawyers, perhaps, backing off and then letting the rest of our diverse society have more of a say in how we’re governed?

 

JONATHAN SUMPTION: Yes. I mean, lawyers have always been the largest professional constituency in the House of Commons, and they still are, but there is one big difference, which is that the number of practicing lawyers in the House of Commons is tiny. In fact, I think that Geoffrey Cox, before he became Attorney General, was probably the only one. There may be one or two others. They are all non-practitioners. Some of them have never practiced. I don’t see any sign of a particular legal mentality surfacing from that area of the House of Commons. Maybe if it did we would have fewer conflicts of the kind which my next three lectures will be concerned with.

 

ANITA ANAND: Well, unless the real Imran Khan wants to step up and ask a question, we’re going to have to leave it there. Next time we are going to be in Birmingham where Jonathan will be addressing how best democracy can accommodate political difference, a theme currently dominating British national life, but for now, our thanks to our hosts here at Middle Temple, to our audience and, of course, to the Reith Lecturer for 2019, Jonathan Sumption.

 

(AUDIENCE APPLAUSE)

 

注1:雅典娜的话有两种文本,Sumption采用的是“Let no man live uncurbed by law or curbed by tyranny.”,另外一种文本是“Let no man live uncurbed by law nor curbed by tyranny.”

后一种文本的意思更连贯。罗念生在埃斯库罗斯悲剧六种中,此句的翻译是:

不要不受管束,也不要受专制统治。