A PASSION FOR JUSTICE©
THE NATURAL LAW FOUNDATIONS OF LORD DENNING’S THOUGHT AND WORK
Andrew Phang*
II
LORD DENNING’S ETHICAL AND RELIGIOUS BELIEFS (CONTINUED)
In The Law (Continued)
(3) Other Areas:
It will be seen that the basic (substantive) pattern underlying Denning’s judgments in the law of contract is replicated in other areas of the law.
The law relating to restitution has only recently begun [1] to establish itself as a discrete topic.[198] However, Lord Denning may be considered to have been one of the earliest exponents of the doctrine itself. Indeed, in an article in the Law Quarterly Review, he speaks explicitly about “unjust enrichment” in relation to the action at law for money had and received; Denning argued that such an action “was in fact a remedy for unjust enrichment” and that “[i]ts basis was the fact that the defendant had received money which in justice and equity belonged to the plaintiff.”[199] This particular article, Denning tells us, “contains the material on which the statement [in Nelson vLarholt[200]] was based.”[201]Nelson v Larholt[202] is, in fact, now a leading case in the law of restitution,[203] and the statement Lord Denning referred to[204] is as follows:
“A man’s money is property which is protected by law. It may exist in various forms, such as coins, treasury notes, cash at bank, or cheques, or bills of exchange of which he is ‘the holder’ but, whatever its form, it is protected according to one uniform principle. If it is taken from the rightful owner, or, indeed, from the beneficial owner, without his authority, he can recover the money from any person into whose hands it can be traced, unless and until it reaches one who receives it in good faith and for value and without notice of the want of authority.”
Of interest, too, are the following extrajudicial observations by Denning, made as far back as 1953 with more (as it has turned out) than a hint of prophecy:
“The law of restitution is, I think, assured. It comprises all those cases which cannot be brought within the scope of contract or tort but in which nevertheless the plaintiff can recover money under the money counts or under some positive rule of law … or even under the rules of equity …”[205]
He proceeded to later observe thus:
“Underlying all the law of restitution is the conception that no one should unjustly enrich himself at the expense of his neighbour. This conception is too indefinite to be stated as a principle of law: but it sufficiently indicates a new category. Just as the conception of contract is the enforcement of promises, and the conception of tort is damages for wrongdoing, so the conception of restitution is the prevention of unjust enrichment.”[206]
Lord Denning’s contributions in the sphere of tort law have also been equally significant.[207] Constraints of space (and expertise) preclude a detailed analysis.[208]However, it might be mentioned that the judgment best remembered is a dissenting one, delivered in the Court of Appeal in Candler v Crane, Christmas & Co,[209] a dissent that was ultimately vindicated by the House of Lords in the landmark decision of Hedley Byrne & Co Ltd v Heller & Partners Ltd,[210] which established liability for negligent misstatements. Significantly, Denning refers to the Candler case as his “most important judgment”[211] It is also, in the context of the present essay, apposite to add that with respect to the law of negligence, the moral element is also very much part of Lord Denning’s philosophy; he observes, for example, that insofar as the law relating to negligence is concerned, “the moral element does come in”;[212] he proceeds to add thus:
“The sufferer will not recover any damages from anyone except when it is that person’s fault. It is only by retaining that moral element that society can be kept solvent. To award compensation without fault would make society bankrupt. No one could pay the [insurance] premium needed to get cover.”[213]
Indeed, it is interesting to note that even as he expounds on the element of morality, Denning is equally alive to the needs of the wider society, and this is a point that we shall be returning to below.
Before leaving the topic of negligence, it is important to note Denning’s explicit reference to Christianity in the context of Lord Atkin’s seminal “neighbour principle” which he enunciated in Donoghue v Stevenson.[214] He observes that “Lord Atkin took the Christian precept as underlying the basis of his decision”.[215]
In the context of family law, Lord Denning does refer to the Bible.[216] He also asserts that “[t]he only basis for a sound family life is a Christian marriage — the personal union of one man with one woman, to the exclusion of all others on either side, for better or for worse, so long as both shall live”.[217] However, although not entirely satisfied with the idea of divorce, one cannot accuse Denning of being impractical or having his head buried, as it were, in the sand.[218] Indeed, Denning observes that “[w]hilst accepting the principle of divorce when a marriage has irretrievably broken down, we should do all we can to maintain the christian concept of marriage”.[219]
On a more general level, Denning has been criticised for adopting an overly conservative approach towards sexual morality.[220] If Denning indeed adopts “a rather puritanical stance on sexual morality”,[221] is it wholly the product of biased subjective preference?[222] It is suggested that a close perusal of the various illustrations raised[223] will reveal that Lord Denning’s views are entirely consistent with Christian morality. This raises, of course, the broader criticism often made of Christian values to the effect that they are too rigid and do not move with the times. This raises, in turn, the even broader issue as to whether or not absolute values are possible and/or desirable, as well as how (if possible and desirable) they might be justified. I shall deal briefly with these issues in a subsequent Section.[224]
Lord Denning’s approach towards labour law, particularly with respect to the trade unions, has been particularly controversial.[225] It has been a common criticism of Denning that by his allegedly anti-union judgments, he actually represented an elite that had no concern for labour as such. We have already seen, however, that Denning was primarily concerned with the abuse of power in whatever guise, with the excesses which resulted from such abuse; under such circumstances, there would be no doubt what course of action he would opt for. In this regard, Denning was constantly wary of abuse of power by the trade unions: that not only adversely affected the rights of individual workers but also (and perhaps more importantly) the very structure of the nation as a whole.[226] This is not, of course, to state that Denning was always right.[227]However, the other extreme should also be avoided, viz, the argument to the effect that Denning was irretrievably (and, worse still, irrationally) biased against trade unions.
Unfortunately, Lord Denning has also been criticised with regard to his views on ethnic minorities who seek to emigrate to England .[228] One possible reason is proffered by Klinck, who observes that “the pastoral notion of a protected or favoured place —be it a rural enclave, a ‘lovely village’, the village green, a garden, Eden, or England — can be seen as a unifying element in Lord Denning’s outlook, in his perception of things”.[229] This is in fact closely related to the point, considered below,[230] that regard for immigrants had to be balanced against the broader societal welfare of the existing inhabitants of England itself.
What are we to make of all these less than positive developments — particularly in the context of labour law and immigration? Are they a sign of inconsistency in Denning’s basic philosophy?[231] Not necessarily. In the first instance, Denning’s overall record is a positive one.[232] Indeed, it may be argued that his anti-union stance, for example, in effect protected the rights of the individual worker against the threats of trade unions.[233] In addition, such a stance was also perceived by Denning to help (on a broader level) to preserve the very structural integrity of the nation itself.[234] By the same token, it could also be argued that his decisions ostensibly infringing the freedom of individuals take into account the countervailing (and weighty) factor of security and order.[235] Indeed, in his last published work, Landmarks in the Law,[236] Denning observes thus:
“I trust that I have been as vigilant as anyone to preserve the freedom of the individual. But I confess that it has on occasion had to take second place. If our society is attacked by one or more who would destroy us and our freedoms, then we must have the means to defend ourselves. We must stop them at every point of their attack — before they launch their offensive if we can — and after it is launched. If the danger is grave and imminent, we may have to detain them without trial; we may have to act on secret intelligence; and we may have to modify the rules of natural justice. All this may be necessary to protect ourselves lest we ourselves be destroyed.”[237]
Indeed, it may be said that Denning also brought a realistic and practical view to bear on the entire issue of submission to the authority of the State in a balanced fashion, as is evidenced by the following passage:
“The Christian Church has always insisted that the State has no ultimate and omnipotent authority of its own but derives its authority from God. St. Paul in his epistle to the Romans (xiii, 1) made this clear.
‘There is no power but of God: the powers that be are ordained by God.’ This has been the shield under which our forefathers resisted oppression. To quote St. Paul again — the Ruler of the State was the ‘Minister of God for good’, and so long as he fulfilled his high trust it was not right to resist him; but if he foresook it and sought absolute power, then resistance was justified.”[238]
Where, in fact, the security of the state and the order of its social fabric are not affected, it is fair to state that Denning allows individual freedom to prevail.[239] It might be added that the argument that Denning was not a person who was against individual freedom per se is also evidenced by his constant reference to the abolition of slavery.[240]It might be further added that Denning’s general emphasis on the importance of individual freedom is entirely consistent with his adoption of Christian principles; as he puts it:
“Throughout all this runs the Christian instinct and with it a sense of the supreme importance of the individual and a refusal to allow his personality to be submerged in an omnipotent State.”[241] Lord Edmund-Davies supports this proposition in the following observation:
“Were I asked to identify the hall-mark of Lord Denning’s application of Christian principles in his judicial work, I should point to his passionate and persistent respect for the individual.”[242]
This would explain Denning’s opposition to communism, which (in his view) led ultimately to the annihilation of individual freedom of expression.[243] Somewhat curiously, however, Denning did not wholly reject Marxian theory.[244] He has expressed the following view with respect to State ownership or nationalisation in the development of the Welfare State:
“Many people would deny that this has any Christian backing. They would say that derived from the atheist Karl Marx, who held that in an industrial community, the only alternative to private capitalism was state ownership of land and capital, and he advocated a revolt of the lower classes to bring this about. This has not happened in England ; we have had a social revolution, but it has all happened peacefully, and I believe that at bottom it is because we are still a Christian country, and that a certain part of Marxist teaching (though by no means all) is quite in accord with Christian ethics.”[245]
But how is the balance[246] between individual freedom and societal order to be achieved? The answer has in fact been referred to above: through Christian principles. However, one may ask, why are Christian principles appropriate unless they embody objective truth? My answer is that they do, and this is a proposition that we shall be returning to below.[247]
Lord Denning’s Attitude Towards Other Religions
What, then, about Denning’s attitude towards other religions and religious groups?[248] His basic philosophy is that there ought to be freedom of religion.[249] Indeed, his openness towards other religions is displayed, for instance, in his exhortation that “Christians and Jews should come together in the search for truth”.[250] All this despite the clear difference in beliefs between Jewish and Christian beliefs, which Denning frankly and matter-of-factly acknowledges.[251] Indeed, in his last published work,Landmarks in the Law, Denning devotes a significant portion of his book to the Jews.[252]
Insofar as Christianity is concerned, Lord Denning is firmly of the view that “[w]e have reached the point … that whilst the Christian beliefs still form the foundation of our way of life, as I trust they always will, they are not to be enforced by law[253] but by teaching and example”.[254] He also observes, in a related fashion, thus:
“Freedom of religion means that we are free to worship or not to worship, to affirm the existence of God or to deny it, to believe in a Christian religion or in any other religion or in none, just as we choose.”[255]
However, it is clear that there are, in his view, limits to the otherwise broad principle of freedom of religion; Denning has this to say:
“There are many ‘religious cults’ which use the freedom of religion so as to destroy the family life of young people and their respect for their homes. They use a technology of brainwashing with strange words and ideas so as to get young people to attach themselves to the cult and detach themselves from their families.[256]
He is also of the view that “we cannot allow freedom to be abused so as to destroy what we regard as fundamental”;[257] and human life would, in Denning’s view, be fundamental.[258] The issue, of course, arises as to what we would regard as fundamentals.[259] Denning, however, acknowledges that Christianity cannot be regarded as fundamental in the sense that it ought to be forced onto others: a point we have already considered above.[260] He does, however, add that what is fundamental in a particular country “is what public opinion in that country regards as fundamental”[261] It is suggested, with respect, however, that this may be too wide a proposition, particularly if the government or the majority in a particular country endorses particularly heinous acts, such as genocide. In other words, there are absolute standards that cannot (and ought not to) be transgressed. I recognise, of course, the (contrary) argument from subjectivity or relativity. I would only add (albeit briefly), first, that we shall be dealing with this issue in tangible form below,[262] and, secondly, that (even on a strictly logical level) the very making of an argument (even one that alleges that everything is indeterminate and subjective) is itself at least implicitly relies on a determinate (and, one might add, objective) criterion.[263]
It is also relevant to point out that Lord Denning has always been a person of the utmost courtesy and generosity.[264] And this is of course wholly consistent with his approach as canvassed in the present Section.
III
ON CHRISTIAN INFLUENCES AND APOLOGETICS
Introduction
The reader will recall that the foundations for his embrace of Christianity and its principles lie, in the main, in both his upbringing as well as his experience.[265] However, given the very secular cast of societies in general and philosophy in particular,[266] it is by no means unreasonable for the reader to ask why Lord Denning’s natural law approach, which is premised on Christianity,[267] should be persuasive in the first instance.[268] Indeed, even as far back as approximately four decades ago, Lord Devlin had declined to utilise religious arguments in support of his thesis that the law should be utilised to enforce morality.[269] Although constraints of space (as well as the fact that the focus of this essay is on Lord Denning himself) preclude an extended discussion, I shall attempt to set out, in the briefest of fashions, some reasons as to why Lord Denning’s stance is not without rational as well as historical support ©¤ embodied principally in that branch of Christian studies popularly known as “Christian apologetics”. It is, nevertheless important, at this juncture, to emphasise that this is not to state that courts that do not subscribe to a Christian natural law approach do not dispense justice. Indeed, theChristian faith itself acknowledges that God can ensure that justice is dispensed by common grace, consistently with what the apostle Paul has termed “the law written on the heart”.[270]
Before, however, proceeding to a brief discussion of the justification of a Christian approach towards law, it would be appropriate to consider what appears to be one of the major influences on Lord Denning’s own approach.
The Influence of William Temple[271]
Denning does consistently refer to the work of the late Archbishop of Canterbury, William Temple.[272] Indeed, Denning once described Temple as “one of the greatest thinkers of the present century”.[273]
In one instance, Denning recounts how Temple who, in an address at the Inns of Court, commenced his message by saying, “I cannot say that I know much about the law, having been far more interested in justice.”.[274] Denning opines that “[t]he rebuke was well merited”,[275] as the hearers (all lawyers) “had been brought up in the philosophy of John Austin”[276] and “[t]hose who believe in that philosophy regard the law as something separate and apart from justice”.[277] Denning challenges what he terms “this facile assumption”, [278] not least because lawyers are responsible for the law and, hence, any injustice that occurs.[279] Further, he is of the view that it is simply “a great mistake”[280] because “[i]t overlooks the reason why people obey the law”:[281] “[t]hey obey the law because they know it is a thing they ought to do”;[282] in other words, they “obey the law simply because they recongise it to be obligatory on them. They recognise that they under a duty to obey it.”[283] Denning argues that this “sense of obligation”[284] arises “from the habits of the people which have grown up in their history”;[285]above all, however, is the factor of “moral obligation”, which goes beyond mere habit.[286] And this “moral obligation” arises because of “the moral quality of the law itself”:[287] “[p]eople will respect rules of law which are intrinsically right and just and will expect their neighbours to obey them, as well as obeying the rules themselves”,[288] and that the law must therefore “correspond with what they think to be right and just, or, at any rate, must not unduly diverge from it. In other words, it must correspond, as near as may be, with justice”. [289] Denning then proceeds to define “justice” in the manner set out above,[290] viz, that “it is what the right-minded members of the community — those who have the right spirit within them — believe to be fair”.[291]
Another instance where Temple is cited by Denning centres on the duties of lawyers. The passage by Temple occurs in his Christianity and Social Order,[292] and reads as follows:
“Love, in fact, finds its primary expression through Justice — which .
means in practice that each side should state its case as strongly as it can, before the most impartial tribunal available, with determination to accept the award of the tribunal. At least that puts the two parties on a level and is to that extent in accord with the command ‘Thou shalt love thy neighbour as thyself.””.[293]
Denning points out that the reference in the preceding quotation is to the advocate, the judge and the ordinary man and, in fact, epitomises the adversary system which, in turn, is an integral part of the common law system.[294]
Yet another instance of citation, also from the same book by Temple, occurs in the following (very similar) passage:
“It is axiomatic that love should be the predominant Christian impulse, and that the primary form of love in social organisation is justice.”[295]
In another instance, Denning states, in the context of freedom of religion, that “[i]t was William Temple who pointed out that there is a tendency for religions and for religious denominations to claim to have a monopoly of light, when in fact each has only a few rays of that light”.[296]
In yet another instance, Denning, in advocating a Welfare State governed by Christian principles was, again, influenced by William Temple’s views; he observed that “William Temple, Archbishop of York and later of Canterbury, pointed out time after time the troubles and difficulties which arise in a society which is excessively capitalistic”.[297] In a related vein, but on another occasion, Denning again quoted Temple with regard to the importance of respect for the individual, in particular the fact (in Temple’s words) that “[t]he person is primary, not the society; the State exists for the citizen, not the citizen for the State”.[298]
There is insufficient space and time to deal in any detail with William Temple’s philosophy. But it is important to at least state that his philosophy was very consistent with Denning’s: both were based, as we have seen (albeit cursorily), on Christian principles and it is no wonder, therefore, that Denning constantly cited from Temple’s work and philosophy.[299] Indeed, I would add that Temple’s work and philosophy is very close (as I recently discovered) to the principles that I briefly allude to in the very next Section: in particular, with respect to the pervasively real (yet seemingly intractable) problem of how one is to reconcile the universal with the particular.[300] This problem is best (and perhaps most simply) stated in the question as to how we can achieve an objective truth-theory that can universally guide all particular (and seemingly disparate and subjective) actions in particular circumstances. And one has only to state this to realise the enormity (and even apparent impossibility) of the task itself. Another significant pointTemple deals with (in my view at least) is the role of the Holy Spirit in the life of the individual.[301]
The Relevance of Christian Apologetics
As already mentioned earlier in this essay, in an age characterised by pluralism and an accompanying belief (under the rubric of liberalism at least) in the pursuit of subjective conceptions of the good, the objectivity laid down by Christianity is by no means an attractive one. This is not, of course, to state that there are no coherent theories of natural law as such. Indeed, the classical natural law approach, perhaps best embodied within the work of Aquinas,[302] comes (it is suggested) closest to what Lord Denning would probably endorse. But what is clear is that a systematic defence of the Christian faith (popularly encompassed within the (perhaps semantically misleading) rubric of “Christian apologetics”) is necessary, lest the embrace of Christianity and its underlying values by Denning and others (such as myself) be thought to be mere assertions without any rational basis whatsoever.
In even the proffering of classical natural law theory, we encounter the necessity for scientific arguments: for the source of law in such a theory is God, and this raises, in turn, the more general question as to whether or not God exists in the first instance. Quite apart from the cosmological argument that Aquinas endorsed, there are other arguments, such as those from design.[303] Other scientific arguments are also relevant, both with regard to the creation—evolution debate[304] and (in a related vein) the issue of probabilities.[305] It should also be mentioned that these various issues and arguments are themselves also linked across disciplines.[306]
More importantly, the issue is raised as to why, if the existence of God be accepted, the natural law approach (premised on Christianity) should be preferred. It is significant to point out that of all the major world religions, Christianity is the only one that lays claim to uniqueness inasmuch as it is argued that Jesus Christ is God in a uniquely trinitarian religion comprising God the Father, Jesus Christ the Son, and the Holy Spirit. Such a claim to uniqueness is not, it is suggested, a necessarily bad thing for the persuasiveness (or otherwise) of the various arguments tendered would settle the issue one way or the other; there is no compromise position available. And so the stakes are very high indeed. To the objection that such a claim smacks of arrogance, I would point out that the basis of Christianity is agape, viz the self-sacrificial love of Jesus Christ. I have also emphasised, at the outset of the present Part of this essay that this is not to state that courts that do not subscribe to a Christian natural law approach do not dispense justice. Indeed, it bears repeating the Christian faith itself acknowledges that God can ensure that justice is dispensed by common grace, consistently with what the apostle Paul has termed “the law written on the heart”. Equally importantly, perhaps, is the fact that Christianity enables the seemingly abstract and universal concept God to be objectively real, thus integrating the universal and the particular. This occurs in at least two related ways. First, as Jesus Christ claimed to have come from God the Father, to be the Son of God, indeed God Himself, but in the form of man (in order to die for sinners and to be thereafter resurrected from the dead and to ascend to heaven), we find that, if this claim be established, there is the confluence (indeed, unity) of both the infinite and particular in one Person. In addition, the universal and the particular meet inasmuch as the divinity of God (in Jesus Christ) is also testable both through logic as well as historical argument. Constraints of space precluded a discussion in any real detail, but one can point to the arguments of CS Lewis with respect to the claims of Jesus[307] as well as to the various arguments demonstrating why Jesus was in fact resurrected from the dead.[308]
There is also the issue centring on the authenticity of the Bible, in particular, the New Testament and, here again, there are many works in support of such authenticity and which therefore bear close scrutiny.[309]
All these various arguments are important because, if accepted, they link the universal with the particular, and Christianity becomes more than just an abstract concept that can be embraced solely through blind faith and superstition. It becomes testable; more than that, I believe that this was deliberate since human beings tend to rely more on their senses and looked at from that point of view, the entry of God, in the person of Jesus, into human history was necessary, as was the Bible. The Holy Spirit is also part of the Godhead of the Trinity and provides the individualised guidance to each person transcending space and time: truth is thus imparted in an individualized fashion and we are no longer left with the frustration that stems from the absence of linkage between the universal and the particular which gives rise (in turn) to an inability to test an abstract belief and a contrasting resignation to (and even feeling of despair in) individual relativity.[310] Indeed, in Jesus Himself, as we have already seen, the universal and the particular are also united. In this manner, therefore, the individualized guidance of the Holy Spirit also enables us to obviate the dangers of subjectivity at the point of application of the law. In other words, everything need not break down at the point of application—which is precisely the point at which objectivity is in fact most urgently required. To reiterate what seems to me to be an extremely important practical point, the Holy Spirit, who would be able to be everywhere all at once and who transcends time and space, would be able to give each and every believer objective guidance suitable to his or her individual (and subjective) needs. In the legal context, this translates (as just argued) into wisdom in the application of the law itself. In other words, even in the sphere of application (of “movement”, so to speak) in the law itself, the lawyer and judge would still be guided in such a manner as to be able to arrive at an objective result simply because he or she would be guided by the Holy Spirit. Truth is hence somehow captured “in motion”—an otherwise impossible task to accomplish, save for the fact that the source of the ability to do so is an absolute one that (by its very nature) is able to be with each and every believer simultaneously.
It should also be mentioned that the focus on the particular details of Christianity is necessary to give some idea as to how the broader problems of philosophy and legality can be solved and (correspondingly) why they cannot if arguments tend only towards the more abstract (one important problem has, in fact, just been sought to be dealt with in the preceding paragraph). Indeed, I would, with respect, venture to suggest that the more modern natural law theories fail precisely because they have swung too far into the abstract sphere. I am not sure whether Professor Lon Fuller’s concept of the internal morality of law[311] qualifies as a natural law theory, but, assuming that it does, its principal weakness lies in Fuller’s inability to justify the source of his suggested eight principles of legality. Professor John Finnis’s theory, on the other hand, clearly falls within the purview of modern natural law.[312] However, in attempting (in my view at least) to make his theory more generally acceptable,[313] the learned author has made it extremely difficult to justify the theory; his argument of self-evidence, for example, appears to demand a blind leap of faith insofar as its purported justification is concerned. Even Aquinas’s reliance (on Christian principles) tends to be rather general in nature.[314]
Significantly, too, there has been a fair bit of writing in recent years that adopt an approach that is consistent (albeit not identical) with the approach mooted here.[315]
Insofar as an extremely fundamental problem is concerned, it should also be mentioned that the approach advocated here also resolves what Professor Duncan Kennedy has termed the “fundamental contradiction”[316] — “that relations with others are both necessary to and incompatible with our freedom”.[317] The “fundamental contradiction” is not only embodied within the intense (and seemingly insoluble) conflict between individual rights and utilitarian goals but is also not at all at variance with the view of human nature assumed by Christianity, viz, the doctrine of original sin.[318] It is suggested that the agape love of Christ can transform the human heart through the individualized guidance of the Holy Spirit, although the exercise of freewill in an act of deliberate submission is also required. In other words, the “fundamental contradiction” would dissolve because the agape love, which is infused in human hearts by the Holy Spirit, transforms those hearts (which were hitherto full of the selfishness that is a product of original sin) into hearts that find individual fulfillment in giving to members of the broader community. At this particular point, the gap between individualism and communitarianism (which arises in the secular context) disappears as both are integrated together with each other (under the transforming work of the Holy Spirit). Put yet another way, in contributing towards societal and communitarian goals, individuals simultaneously realize their own respective ambitions. The description of the early Christian Church in Chapter 2 of the Book of Acts clearly (and powerfully, in my view) illustrates this point by recording how individuals, motivated by the agape love of Christ, simultaneously fulfilled their individual desires and ambitions by contributing towards (and fulfilling) their corporate responsibilities vis-à-vis the wider body of Christ.
Much more remains to be unpacked, but I hope to have made out an at least prima facie case for consideration of the Christian natural law alternative. More importantly, I hope to have demonstrated that Denning’s Christian natural law approach is by no means without any basis and that the charge of personal preference omits, amongst other things, to take into account the individualised guidance of the Holy Spirit that I am sure must have been an integral part of Denning’s thought and work (particularly given the general property of objectivity inherent within this proposition and in Christian natural law generally).[319] This is not to state that he consciously embraced this particular approach and it certainly is not evident in his writings or judgments. However, if he truly practised his Christian natural law values, the approach just mentioned would, it is submitted, have been a natural outworking of such a practice. Such an approach would, in other words, have simply been a demonstration or manifestation of Lord Denning’s Christian natural law values “in action”.
IV
CONCLUSION
The traditional (or at least popular) view of Lord Denning is that of a maverick: of a judge who believes passionately in justice, but who so often gets around the law in order to achieve what he perceives to be justice in the case in hand. Put this way, the entire enterprise becomes a contradiction in terms: for the law should not be undermined if justice, the very object of the law itself, is to be achieved. But this argument presupposes that the law never goes wrong and, in the context of the common law and its methodology, this is a dangerous assumption to make: if nothing else, then because human beings are not infallible. This does not, of course, entail an arbitrary disregard of legal rules and principles based on personal whim and fancy. Indeed, we have seen that Denning himself rejects such an approach.[320]
How, then, is the judge to proceed? How is he or she to know when (and when not to) depart from law that has somehow gone ‘wrong’? Yet, even the mere acceptance of the legitimacy of this question assumes that the person so accepting believes that there is a morality underlying the law; more than that, it assumes that this morality is (as it, indeed, implicitly claims by its very terms and context) objective, is universally true, so that law that does not conform to it has somehow gone ‘wrong’. This is, in fact, a natural law approach and is to be contrasted with positivism which does not contemplate any necessary connection between law and morality. But if morality is perceived as being subjective and personal, and that we are (as positivism advocates) better off simply applying ‘the law’ to the facts concerned, how do we justify such law as being objective: for without a claim from objectivity (and it has been argued that we do argue from it, whether we like to admit it or not, at least when we are making a seriously intended argument[321]), wherein lies the legitimacy of the law and the decision its application to the facts has determined? However, the options in this respect are not particularly attractive: they may take the form of mere circularity or infinite regress and it is, with respect, no answer to say that pragmatism demands that we have to arrive at a particular decision in any event. Any recourse to a pragmatic argument brings us dangerously close to (if not within the very depths of) personal preference. This is what led (in the main) to the demise of American Realism and is very much, too, the cause of the woes facing Critical Legal Studies. Strangely, positivism is often contrasted to these two theories and, yet, in the final analysis, may be forced to resort to methods not (in substance at least) far different. Neither is the liberal answer, the recourse to frameworks of ground rules, persuasive.[322] This is simply the distinction between procedure and substance, and it is, with respect, woefully inadequate when the law (as with mostly everything else) is all of a piece.[323]
There is an alternative answer, and it lies (as already mentioned) in the realm of natural law. But how, then, is that to be justified? Is it not subject to the same critiques canvassed in the preceding paragraph? It is submitted that it is not, provided it is premised on Christianity. Such a type of natural law is testable (both logically as well as historically) and has a functionality that lies, in the main, in the concept of the Trinity. The arguments are certainly at least as plausible as any on offer. And this is the approach that Lord Denning, it is submitted, adopted. And what appears like an arbitrary hunch, an intuition, is (in substance) a recourse not only to the value system underlying Christianity but also a receipt of supernatural guidance by the Holy Spirit. But this is not to state that such an approach guarantees even close to perfect results. If nothing else, it is also dependent on one very crucial element that God does not control: our freewill ©¤ in particular, our decision to submit the problems and questions to Him for a co-operative solution and not wanting to take the law, as it were, into our own hands, for at this juncture, critics would truly be justified in levelling the charge of personal arbitrariness. Unfortunately, no human being is perfect, not even Lord Denning, although I believe that he did a far better job than most. And it is this approach ¾ in fact the entire antithesis of personal whim and fancy ¾ that is (I believe) the reason why Denning has made such a profoundly significant impact, particularly on the general public: not merely in England but across the world, in particular, the Commonwealth. I truly believe that most members of the general public would agree with many, if not virtually all, of his seminal decisions and even extrajudicial views. Certainly, all would respect him, even if they did not. Looked at in this light, Lord Denning’s greatest contribution, in my view, was not merely ‘the law’ that he left behind but, rather, the spirit of justice that was guided by a supernatural force. Denning never wavered from the conviction that this was always so. More importantly, he persevered, right till his retirement: and has left a legacy of immeasurable proportions not only in the materials of the law itself but (more importantly) in the minds and hearts of not only those who are legally trained but also all those who are genuinely and passionately interested in justice. He brought a particularity and reality to the abstract concept of justice that tangibly demonstrated what it was all about.
In his reply to the various valedictory speeches made upon his retirement as Master of the Rolls, Denning ended thus:
“I wish I could say, as a great man did once, ‘I fought a good fight; I finished the course; I have kept the faith.’”.[324] He can, and ought to, say it.[325]
_____________________________________________________________________________________________________________________
ENDNOTES
* Senior Counsel; Professor of Law, Singapore Management University. This Part concludes the essay, the first Part of which was published in the previous issue of theJournal.
[198] Largely through the efforts of the late Professor Peter Birks: see, in particular, his seminal An Introduction to the Law of Restitution (Clarendon Press, Rev Ed, 1989) and (more recently) his Unjust Enrichment (Oxford University Press, 2nd Ed, 2005). The literature is of course now voluminous and is ever-increasing. For a sampling (which, even at the time of writing, is already out-of-date), see Phang, above, note 120 at 1137, notes 195 and 196.
[199] See AT Denning, “The Recovery of Money” (1949) 65 Law Quarterly Review 37 at 48. Denning also refers (ibid at 49) to the seminal judgment of Lord Wright in as well as (see ibid at 49-50) to the defence of “change of position”. See also his review of the first edition of Goff & Jones’s The Law of Restitution (Sweet & Maxwell Ltd, 1966): (1967) 83 Law Quarterly Review 277. Reference may also be made to his other pieces as follows: “Quantum Meruit and the Statute of Frauds” (1925) 41 Law Quarterly Review 79 and “Quantum Meruit: The Case of Craven-Ellis v Canons Ltd” (1939) 55 Law Quarterly Review 54.
[200] [1948] 1 KB 339 at 342.
[201] See Denning, “The Recovery of Money”, above, note 199 at 50, note 56.
[202] [1948] 1 KB 339.
[203] See eg, Birks, above, note 198 at 5 and 443-444; Goff & Jones: The Law of Restitution (Sweet & Maxwell, 1993; 4th Ed by G Jones) at 85, 585, 671, 760 and 761; as well as A Burrows, The Law of Restitution (Butterworths, 1993) at 146. Both the volumes just mentioned have witnessed new editions since the time this essay was completed (both being published, in fact, in 2002, with the former witnessing two new editions since the one cited), but their views of the case have not (understandably) changed.
[204] See above, note 200.
[205] See Denning, The Changing Law, above, note 24 at 62-63.
[206] Ibid at 65 (emphasis added).
[207] And see generally Atiyah, above, note 93 at 54-76.
[208] For Denning’s own extended analysis with regard to the development of the law relating to negligence, see generally Denning, above, note at Pt 6.
[209] [1951] 2 KB 164. And see ibid at 232-236.
[210] [1964] AC 465. And see Denning, above, note 5 at 245 et seq.
[211] See Denning, above, note 115 at 1.
[212] See Denning, above, note 5 at 280.
[213] Ibid.
[214] See [1932] AC 562 at 580.
[215] See Denning, above, note 45 at 7. See also, by the same author, “Address”, above, note 32; “Influence”, above, note 36 at 108; “The Need for a New Equity”, above, note 176 at 9 and The Family Story, above, note 25 at 181.
[216] See eg, Denning, The Equality of Women, above, note 72 at 4-5, where he refers (in the context of wives’ submission to their husbands) Ephesians 5: 22-24 and 1 Peter 3:1 as well as (in the context of divorce) Matthew 5:32.
[217] See ibid at 16. And see his lament at the present state of affairs, where divorce was on the rise: “The Freedom of the Individual To-day”, above, note 42 at 58.
[218] See eg, Denning & Scarman, above, note 36 at 8 and Denning, above, note 45 at 8.
[219] See Denning, “Law and Life in our Time”, above, note 42 at 352. Cf Denning, “Influence”, above, note 36 at 121-122 and, by the same author, Freedom of Religion, below, note 249 at 14-15.
[220] See generally eg, R Geary, “Lord Denning and Morality” in Robson & Watchman, above, note 10, 74-86. Reference may also be made to Stevens, above, note 8 at 499-501 and Kirby, above, note 15 at 10. The oft-cited decision in this regard is Ward v Braford Corporation (1972) 70 LGR 27 especially at 35, per Lord Denning MR, where he observed thus:
“If there were any evidence that Miss Ward had been treated in any
way unfairly or unjustly I would be in favour of interfering. But I do
not think she was treated unfairly or unjustly. She had broken the
rules most flagrantly. She had invited a man to her room and lived
there with him for weeks on end. I say nothing about her morals. She
claims that they are her own affair. So be it. If she wanted to live
with this man, she could have gone into lodgings in the town and no
one would have worried, except perhaps her parents. Instead of going
into lodgings she had this man with her, night after night, in the hall of
residence where such a thing was absolutely forbidden. That is a
fine example to set to others! And she is a girl training to be a
teacher! I expect the governors and the stall all thought that she was
quite an unsuitable person for it. She would never make a teacher.
No parent would knowingly entrust their child to her care. Six
members of the disciplinary committee voted decisively for her
expulsion. Not a single vote was cast against it, nor for any less
sentence. Three abstained for reasons best known to themselves.”
To be fair to Denning, however, in the same case, Phillimore LJ echoed the same sentiments: see (1972) 70 LGR 27 at 38.
[221] See Freeman, above, note 73 at 113.
[222] See the general tenor of Geary’s arguments, above, note 220.
[223] Including Ward v Bradford Corporation: see above, note 220.
[224] Entitled “The Relevance of Christian Apologetics”: see the main text accompanying below, notes 302 ff.
[225] See the excellent and fair-minded essay by P Davies & M Freedland, “Labour Law” in Ch 8 of Jowell & McAuslan, above, note 10. Reference may also be made to K Miller, “The Labours of Lord Denning” in Robson & Watchman, above, note 10, 126-156.
[226] See generally Davies & Freedland, above, note 225. And see Denning, “Restraining the Misuse of Power”, above, note 70 at 11: “I would declare that there is no such [fundamental right to strike] known to the law: not, at any rate, when it is used so as to inflict great harm on innocent bystanders, to disrupt essential services or to bring the country to a halt.” Reference may also be made to the same author, The Road to Justice, above, note 42 at 104; “The Freedom of the Individual To-Day”, above, note 42 at 52 (referring, inter alia, to “how the liberty of the individual is being threatened not by states or authorities but by groups of men, often unoffically — with often a minority group doing it”) and “Misuse of Power”, above, note 70 at 724 (referring to possible destruction of the nation itself). In “Life and Law in Our Time”, above, note 42 at 12, Denning observes that “[t]here is no more important question in our time than how to reconcile the legitmate demands of trade unions and workmen with the freedom of the individual”. See also generally Denning, The Closing Chapter, above, note 6 at Section Six.
[227] See generally Davies & Freedland, above, note 225.
[228] See eg, P Watchman, “Palm Tree Justice and the Lord Chancellor’s Foot” in Robson & Watchman, above, note 10, 1-44 at 7-11; McAuslan, above, note 10 at 235; and E Veitch, Book Review (1983) 32 University of New Brunswick Law Review 299 at 300. Reference may also be made to Palley, above, note 15 at 297-304. Though cf Denning’s approach toward European Community law: see AIL Campbell, “Lord Denning and EEC Law” [1988] Denning Law Journal 1. See also Denning & Scarman, above, note 36 at 21, where Denning’s observations are worth quoting, as follows:
“Mark you, I think the European Common Market is going to have a great deal of influence on a lot of the things we do. It’s only just starting now, and on ways of thought and the like. Mark you, I don’t think it’s a bad thing. I think in a way it’s got to come – European Common Market, European Commission and everything is going to be. I think that probably is the way in which the law will develop; but honestly, if only we could, the judges, help in protecting the individual.”
[229] See Klinck, “‘This Other Eden’: Lord Denning’s Pastoral Vision” (1994) 14 Oxford Journal of Legal Studies 25 at 54. See also McAuslan, above, note 10 at 207, who observes (in similar vein) thus:
“The picture then that emerges is that of the comfortable, reasonably well-meaning, country gentleman, with not too much understanding of, and, as he grew older, not too much sympathy for, the problems of urban life outside suburbia. His most lyrical judgments concern the countryside; his most censorious urban poverty.”
See also Denning, “Life and Law in Our Time”, above, note 42 at 8-9.
[230] See the main text accompanying below, notes 234-237.
[231] And see RFV Heuston, “Lord Denning: The Man and his Times” in Ch 1 of Jowell & McAuslan, above, note 10 at 5 (referring to Lord Denning’s “ability to hold two contradictory views at the same time, or to distort an opposing argument into a way favourable to himself”). It will be suggested that Lord Denning’s Christian beliefs allowed him to act the way he did, but without any moral or other inconsistency.
[232] See eg, R Keane, Book Review (1984) 19 Irish Jurist 137 at 139.
[233] See eg, Slayton, above, note 10 at 138 and Palley, above, note 15 at 272.
[234] And see above, note 230.
[235] And see Denning, above, note at 51, where he observes that “you cannot have the freedom of the individual unless you have law and order maintained”. See also I Holloway, Book Review (1994) University of Tasmania Law Review 194 at 199 and 200, as well as Palley, above, note 15 at 364.
This is also the main reason underlying the decision in R v Home Secretary, ex parte Hosenball [1977] 1 WLR 766 (which modified the rules of natural justice in a deportation context); see also Denning, The Due Process of Law, above, note 70 at 85-88 and, by the same author, above, note 26 at 233-234. But cf the critique by T Guthrie, “Spies, Subverters and Saboteurs” in Robson & Watchman, above, note 10, 87-98 at 89 et seq. This was also the reason underlying his apparently callous rejection of the defence of homelessness in actions for possession of land against squatters: see eg, McPhail v Persons Unknown [1973] 1 Ch 447 at 456. Reference may also be made (albeit in a slightly different context) to De Falco v Crawley Borough Council [1980] 1 All ER 913. But cf the critique by P Robson & P Watchman, “Resisting the Underprivileged” in Robson & Watchman, above, note 10, 113-125 at 117-123.
[236] Above, note 26. There was in fact a further book, Leaves from My Library — An English Anthology (Butterworths, 1986), but as the title itself suggests, this was a mere collection rather than a substantial piece of original writing as such.
[237] Ibid at 228 (emphasis added). And see generally also ibid at 228-237. See also Denning, Freedom Under the Law, aboe, note 68 at 10-13 and 44, as well as, by the same author, above, note 43 at 232; above, note 142 at 21; and The Family Story, above, note 25 at 129-131.
[238] See Denning, “Influence”, above, note 36 at 117 (emphasis added).
[239] See eg, Lord Denning’s Report (HMSO, Cmn 2152, 1963) at paras 9 and 297 (this was a report on the notorious “Profumo Affair”). And in “The Freedom of the Individual To-Day”, above, note 42, Lord Denning observed (ibid at 53) that “[f]reedom of speech means not only freedom for the views of which you approve but freedom for the views which you most wholeheartedly detest”.
[240] See eg, Freedom Under the Law, above, note 68 at 7; “Life and Law in Our Time”, above, note 42 at 7; “Law and Life in our Time”, above, note 42 at 352; “Recent Changes in the Law”, above, note 42 at 167-168; and Landmarks in the Law, above, note 26 at 214-227.
[241] See Denning, The Changing Law, above, note 24 at 3.
[242] See Lord Edmund-Davies, above, note 23 at 45. Reference may also be made to the observation of Lord Scarman in Denning & Scarman, above, note 36 at 2; see also per Lord Denning ibid at 21.
[243] See Denning, The Changing Law, above, note 24 at 14-15 and, by the same author, Freedom Under the Law, above, note 68 at 13-16 and 37-38.
[244] Cf Palley, above, note 15 at 365, where she argues that, because of his emphasis on justice, Denning could “turn to his Marxist critics, saying that, rhetoric or not, he has reified justice, with the conseqence that the profession now focuses upon it”.
[245] See Denning, above, note 57 at 10 (emphasis added).
[246] See Denning, Freedom Under the Law, above, note 68 especially at 4-6.
[247] See the Section below entitled “The Relevance of Christian Apologetics”.
[248] See generally Palley, above, note 15 at 308-311 and 351-352. It should be mentioned that there are not a few ostensibly relevant cases, but many of these did not deal directly with the issue of religion as such and, in any event, centred on issues of statutory interpretation: see eg, Mandla (Sewa Singh) v Dowell Lee [1983] QB 1, reversed [1983] 2 AC 548 (and see Denning, The Closing Chapter, above, note 6 at 76-87, where Lord Denning concedes that the Parliamentary proceedings, which the Court of Appeal was unaware of, ought to have led it to the opposite decision); Henning (Valuation Officer) v Church of Jesus Christ of Latter-Day Saints [1962] 1 WLR 1091;Attorney-General ex rel Bedfordshire County Council v Howard United Reformed Church Trustees, Bedford [1975] 1 QB 41, reversed [1976] AC 363; and Ahmadv Inner London Education Authority [1977] 3 WLR 396. Cf Regina v Registrar General, ex parte Segerdal [1970] 2 QB 697 at 707, per Lord Denning MR (emphasis in the original text) (“[A ‘place of meeting for relgious worship’] connotes to my mind a place of which the principal use is as a place where people come together as a congregation or assembly to do reverence to God. It need not be the God which the Christians worship. It may be another God, or an unknown God, but it must be reverence to a deity. There may be exceptions. For instance, Buddhist temples are properly described as places of meeting for religious worship. But, apart from exceptional cases of that kind, it seems to me the governing idea behind the words ‘place of meeting for religious worship’ is that it should be a place for the worship of God. … Turning to the creed of the Church of Scientology, I must say that it seems to me more a philosophy of the existence of man or of life, rather than a religion.”). Reference may also be made (with regard to Scientology) to Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149.
[249] And see generally Denning, Freedom Under the Law, above, note 68 at 35 and 45-48 and, by the same author, The Road to Justice, above, note 42 at 116-117 as well as Freedom of Religion (William Ainslie Memorial Lecture, delivered at St. Martin-in-the-Fields on 17 November 1955; The Cranbourn Press, 1955).
[250] See Denning, above, note 26 at 328.
[251] Ibid at 314.
[252] See ibid at 309-329. See also, by the same author, Freedom Under the Law, above, note 68 at 49-51 and Freedom of Religion, above, note at 7-8. The position of the Jews under English law was not, however, always so positive: see eg, De Costa v De Paz 2 Swans 532. But see, in turn, the Religious Disabilities Act 1846 (9 & 10 Vict, c 59). And cf Ostreicher v Secretary of State for the Environment (1979) 37 P&C Report 9 (which, however, could be interpreted not as impacting on any religious bias but, rather, on issues of logistics as well as the failure of the applicant’s (a devout Jewess’s) surveyor to effect the proper liaison).
[253] The leading case that holds that Christianity is not part of the law of England is the House of Lords decision in Bowman v Secular Society, Limited [1917] AC 406. But cf per Lord Finlay LC (dissenting) who, citing cases such as Briggs v Hartley (1849-1850) 19 LJ (Ch) 416 and Cowan v Milbourn (1867) LR 2 Ex 230, was of the view that although attacks upon Christianity did not constitute a criminal offence as such (here, the learned Law Lord was in agreement with the rest of his brethren), there ought nevertheless to be adverse civil consequences. Not surprisingly the majority of the House overruled both the aforementioned cases.
Although, as Lord Denning observes, it would be desirable that Christian beliefs form the foundation of one’s way of life, it cannot be enforced by way of the law. To hold otherwise would be to undermine the very concept of freedom of religion. In addition — and no less importantly — the very premises of Christianity itself preclude coercion, advocating (as it does) agape as well as endorsing the concept of freewill (and see per Lord Buckmaster in the Bowman case [1917] AC 406 at 470: “It would, indeed, be hard to find a worse service that could be done to the Christian faith than to prevent people from explaining and inviting an answer to the reasoned convictions that led them to question its truth.”). This lastmentioned point may involve more philosophical discourse, which discourse is, however, outside the purview of the present essay, viz, how freewill can in fact be reconciled with the sovereign will of God. It will suffice for the present to state that this is not impossible, although it will involve an acceptance, to some extent at least, of a paradox as well as (at least possibly) the idea that a sovereign God can deny Himself the power of at least interference if not the very knowledge of future human actions themselves.
[254] See Denning, Freedom Under the Law, above, note 68 at 47.
[255] See Denning, The Road to Justice, above, note 42 at 117-118.
[256] Ibid at 237.
[257] See Denning, Freedom of Religion, above, note 249 at 6.
[258] Ibid.
[259] Denning himself raises this query: see ibid.
[260] See ibid at 6-7 and 11-12. See also above, notes 254 and 255.
[261] Ibid at 9. He does in fact later state (ibid at 15) that “[i]t seems to me that the real fundamentals are those which the right thinking people of the community — the people with the right spirit within them — believe to be fundamental”. However, he is then apparently non-commital about who such people might be (see ibid at 15-16); indeed, he concludes thus (ibid at 16):
“I know no way to be sure on these matters. All that we can do is to pray to God that we may be guided aright to know what is true. I believe that all that is noble in our thought, or conduct, or worship is the work of Christ upon us and within us. It is by the Word of God that the wise men of the earth have conceived and uttered such truths as they have declared. It is ‘the true light which lighteth every man that cometh into the world’.”
It is suggested that what Denning is actually driving at is that the people with the right spirit would be people filled with the Holy Spirit; and see also above, note
[262] See the Section below entitled “The Relevance of Christian Apologetics”.
[263] And see, in this regard, RM Dworkin, “Law, Philosophy and Interpretation” (1994) Archiv Fur Rechts-und Sozialphilosophie 463 especially at 474-475 and, by the same author, “Objectivity and Truth: You’d Better Believe It” (1996) 25 Philosophy & Public Affairs 87.
[264] See eg, Scarman, above, note 175 at 446 (“He is, in his court, the most gentle, courteous, and patient of judges. He works always to help counsel, never to discourage or destroy them.”); Lord Ackner, “The Genius of the Common Law” [1995] Denning Law Journal 5 at 5-6 (this article was originally published in the New Law Journal (14 April 1995)); Lord Wilberforce, above, note 11 at 444; and Grant, above, note 8 at 359.
[265] See the main text accompanying, above, notes 31-39.
[266] See Heuston, above, note 231 at 19, where the learned author observed that “[i]t is true that Denning believed in or admired many things which the modern Englishman is reputed to dislike, eg the Christian religion …”.
[267] Professor McAuslan interestingly acknowledges the profound influence of Christianity in the context of Lord Denning’s decisions in the context of land law: see McAuslan, above, note 70 at 162. See also Devlin, above, note 112 at vii, who observed that Denning “opens the door to the law above the law”. Reference may also be made to Rickett, above, note 93 at 96 and 99-101, as well as Palley, above, note 15 at 254. In all these instances, however, no elaboration as such is to be found, save for Rickett’s article.
[268] See eg, F O’Donnell, Book Review (1982) 40 University of Toronto Faculty of Law Review 112 at 114 and Freeman, above, note especially at 109-113 (where Lord Denning’s “moral fundamentalism” is criticised). Cf also AC Hutchinson, Book Review (1982) 3 Supreme Court Law Review 565.
[269] See Devlin, above, note 1 especially at 7; but cf (in turn) ibid at 25.
[270] See Romans 2: 14©¤15.
[271] This particular Section of the article formed the basis for a separate piece published elsewhere: see A Phang, “Lord Denning and the Influence of William Temple” (1999) (No 140/141) Law & Justice 3. And see generally AM Suggate, William Temple and Christian Social Ethics Today (T & T Clark, 1987); CW Lowry, William Temple ¾ An Archbishop for All Seasons (University Press of America, Inc, 1982); and J Kent, William Temple ¾ Church, state and society in Britain, 1880 ¾1950(Cambridge University Press, 1992). Reference may also be made to the introductory essay on Temple by Canon AE Baker in William Temple, Religious Experience and other Essays and Addresses (James Clarke & Co Ltd, 1958), 1-31 as well as to the “Introduction” by R Preston to the re-issue (in 1976 by Shepheard-Walwyn) of Temple’s Christianity and Social Order (below, note 292): see ibid, 5-26.
But cf JD Carmichael & HS Goodwin, William Temple’s Political Legacy — A Critical Assessment (AR Mowbray & Co Ltd, 1963). However, the authors, while not unsympathetic to a Christian approach (and may appear even, at parts, to adopt it) espouse, in the main liberalism (see especially ibid at vii). It is no wonder, then, that they are highly critical of what they perceive as ‘bad politics and sociology’ on the part of Temple, although they think his philosophy and theology to be strong. It is suggested, with respect, that Temple attempted to adopt (and quite correctly at that) an holistic and integrated approach. Many of the problems Charmichael and Goodwin find with Temple’s political and sociological approach disappear when one views his approach from a Christian perspective. One good example relates to their critique of Temple’s emphasis on natural law (see Charmichael & Goodwin, above, at 82-86; see also below, note 301 for a flavour of Temple’s views on this topic) which, again with respect, fails to see that the purported subjectivity is actually mythical if one accepts Temple’s Christian approach since the values embodied therein are supposed to be objective in the first instance (see, further, the next Section of this essay, entitled “The Relevance of Christian Apologetics”). Indeed, Preston, above, at 10 is of the view (with respect to Charmichael and Goodwin’s book) that “the effect of their book is lessened by their naïve enthusiasm for liberalism in the narrow sense of laissez-faire and free competition; and the large number of economists who are also castigated by them leaves the reader feeling that Temple is in good company”; though cf Preston’s own views on Temple’s use of natural law: see ibid at 12-14.
In similar vein, Kent , above, at 54, is of the view that “[o]ne of Temple’s weaknesses as a Christian philosopher of religion was that he could not conceive of a serious religious alternative to Christianity”. It is suggested again, with respect, that Temple was aware of it and that his confidence was not misplaced: see generally the next Section of this essay, entitled “The Relevance of Christian Apologetics”.
[272] See eg, AT Denning, “The Traditions of the Bar” (1955) 72 Singapore Academy of Law Journal 43 at 43 and, by the same author, The Road to Justice, above, note 42 at 1 and 34.
[273] See Denning, “Influence”, above, note 36 at 107.
[274] See Denning, The Road to Justice, above, note 42 at 1.
[275] Ibid.
[276] Ibid.
[277] Ibid.
[278] Ibid.
[279] Ibid.
[280] Ibid at 2.
[281] Ibid.
[282] Ibid (emphasis in the original text).
[283] Ibid (emphasis added).
[284] Ibid.
[285] Ibid.
[286] Ibid at 3.
[287] Ibid.
[288] Ibid.
[289] Ibid (emphasis added). See also Lord Justice Denning, “English Law and the Moral Law” (1954) 51 The Listener 332. But cf the late Professor HLA Hart who (particularly in the “Postscript” to the second edition of his classic work, The Concept of Law (2nd Ed, Clarendon Press, 1994)) adopted a descriptive (as opposed to a descriptive) approach in support of his basic positivistic thesis; but cf A Phang, “‘The Concept of Law’ Revisited” [1995] Tydskrif Vir Die Suid-Afrikaanse Reg 403.
[290] See the main text accompanying, in particular, above, notes 41-42.
[291] See Denning, The Road to Justice, above, note 42 at 4.
[292] Penguin Special, 1942; Reprinted in the Pelican Series, 1956. This is, in fact, a very perceptive work that contains much food for thought — which, unfortunately, cannot be canvassed here owing to constraints of space.
[293] See ibid at 76. Cf also Denning, “Address 1977”, above, note 32.
[294] See Denning, The Road to Justice, above, note 42 at 34. See also “Valedictory Speeches”, above, note 8 at 12-13.
[295] See above, note 292 at 55, cited in Denning, “Influence”, above, note 36 at 107. See also above, note 52.
[296] See Denning, Freedom of Religion, above, note 249 at 16.
[297] See Denning, above, note 57 at 10. See also Denning, “Influence”, above, note 36 at 120. See, further, Temple himself, above, note 292 at 17, where he refers to “the principle that economics are properly subject to a non-economic criterion” (emphasis added). See also ibid at 78, where he observes thus:
“[I]n the economic field, the reason why goods are produced is that men may satisfy their needs by consuming those goods. Production by its own natural law exists for consumption. If, then, a system comes into being in which production is regulated more by profit obtainable for the producer than by the needs of the consumer, that system is defying the Natural Law or the Natural Order.”
See also ibid at 98-99 and Temple, The Hope of A New World, below, note 300 at 51. And see, in this regard, Denning’s own treatment, eg, of exception clauses vis-a-visconsumers: see the discussion above in the Section entitled “The Law of Contract”.
[298] See Denning, “Influence”, above, note 36 at 116-117. See also generally Suggate, above, note 271 at Ch 9, entitled “Economics”.
[299] And both Temple and Denning were prolific writers. Denning’s many extrajudicial writings are in evidence throughout this essay. And as for Temple, Lowry (above, note 271 at 49-50) had this to say:
“One of the phenomenal things about William Temple was his literary output. He published in his lifetime not less than 35 books and Heaven knows how many tracts, single sermons or lectures, and articles in learned and popular journals, to say nothing of the leaders and other pieces he wrote for the periodicals he edited.”
[300] See eg, W Temple, Mens Creatix (MacMillan and Co Ltd/St. Martin’s Street, London, 1st Ed, 1917; Reprint, 1949) at 36, 318-320 and 364-366 and, by the same author, Christus Veritas (MacMillan & Co Ltd, 1924) at ix and 243-244; Nature, Man and God (MacMillan and Co Ltd/Sta. Martin’s Street, London, 1st Ed, 1934; Reprint, 1953) at 184, 245, 296-297, 299-300, 306-307, 318 and 354-355; Christian Faith and Life (Student Christian Movement Press, 1931) at 24, 53 and 110; The Hope of A New World (The MacMillan Company, 1942; Reprint 1943) at 121; as well as “My Point of View” in Temple, Religious Experience, above, note 271, 97-106 especially at 106. Reference may also be made to Suggate, above, note 271 at 50-51. Temple adopted, following his mentor Edward Caird, a dialectical approach: see eg, Suggate, above, note 271 at xiii, xiv-xv and 17; Lowry, above, note 271 at 3, 21, 57-58, 88 and 97, as well as Baker, above, note 271 at 4 (and on other significant influences, see Suggate, above, note 271 at Ch 2, entitled “Temple’s Education”). And see Temple himself in Nature, Man and God, above at x, where he observed that “[s]uch method in thought as I possess, and especially such grasp of the pricniples of the Dialectic as I have acquired, I believe myself to owe to my Master at Balliol, Edward Caird”; see also ibid at ix and 57 et seq. See also his “Theology To-day” Theology, November 1939, 326-333 at 328, where he referred to Caird as “[t]he teacher who most influenced me”; indeed, Nature, Man and God, above was dedicated to the memory of Caird. And see Kent , above, note 271 at 166-167, where he disagrees with Suggate, above, note 271 (see, in particular, Ch 6), that Temple had, by the late 1930s, moved away from his Hegelian optimism into a neo-orthodox pessimism. This argument is not wholly persuasive, given a close perusal of Temple’s later works. It is of course true that Temple did not give up as such, although he did appear to move away from a purely idealistic approach but there is nothing in this that is inconsistent with Christianity which does not envisage a perfect world until the Second Coming of Jesus Christ. However, on a more general level, Temple’s methodology must necessarily overlap with the next point, viz. the role of the Holy Spirit, for it is clear that the dialectic that Temple spoke about was not the purely Hegelian one but was, rather, one that operated within the spiritual sphere and, to that end, partook also of spiritual qualities. Above all, however, Temple found the ultimate reconciliation of the universal and particular (as I do, in the next Section) as being embodied in the very Person of Jesus Christ Himself. As Lowry pertinently points out (above, note 271 at 104), “[i]n his thinking of God, Temple is constantly and consistently Christo-centric. The Incarnation is for him no abstraction. It is the heart of faith, the key to truth.” (and see Temple, Christus Veritas, above, at ix (reference to a “Christo-centric metaphysics”). See also, in similar vein, Suggate, above, note 271 at 57-58. And cf, on the general issue of the tension between universals and particulars, Denning, ibid at 31.
[301] See eg, Temple, Mens Creatix, above, note 300 at 342-343 and, by the same author, Christus Veritas, above, note 300 at 155 and Ch XV; Nature, Man and God, above, note 300 at 446; Christian Faith and Life, above, note 300 at Ch VI. Interestingly, Temple has observed (see above, note 292 at 67) that “it seems scarcely too much to say that neither individualism nor collectivism is compatible with a truly Christian understanding of man or of life”; as will be suggested below, the way forward is really via reliance on the Holy Spirit. And on Temple’s own reliance on divine guidance (which I interpret as the experience of the objective guidance via the Holy Spirit), see eg, Kent , above, note 271 at 183-185 and Suggate, above, note 271 at 48-49. Temple’s emphasis was, ultimately, on action: see Lowry, above, note 271 at 7-8 and 64; as well as (in particular) Temple, above, note 292. Apparently, Temple was supposed to have written a book on the Holy Spirit after his retirement (see Baker, above, note 271 at 29). Unfortunately, his premature demise has deprived us of a more systematic work on the Person and work of the Holy Spirit. For interesting works on the Holy Spirit, see MJ Erickson, God in Three Persons — A Contemporary Interpretation of the Trinity (Baker Books, 1995); R Swinburne, The Christian God (Clarendon Press, 1994) at Ch 8; and Lewis, below, note 307 especially at 142-143 and 152-153.
See also the next Section, entitled “The Relevance of Christian Apologetics”.
Temple also dealt with a great many other very pertinent issues of broad social import. Unfortunately, as already mentioned, constraints of space preclude further discussion. But it might be briefly mentioned that Temple did refer, from time to time, to the institution of the law, as we have already (again, briefly) seen above. Interestingly, and somewhat commonsensically, he did not view adjudication as capable of achieving even close to perfect results, at least in the eyes of the parties (in particular, one might guess, the losing party) themselves: “Here as elsewhere we have to do the best we can, using as our criterion of ‘the best’ the absolute standard of the Christian ethic. But to determine this ‘best’ is a work of reason.” (see W Temple, “Christian Democracy” in Temple, Religious Experience, above, note 271, 136-152 at 151. He then proceeds to observe, consistent with views we have already seen above (see above, note 293), that “[i]n practice this reliance upon reason works out as a positive desire to hear the best that can be said for the other side” (see ibid). He also argues that Christian charity or love must transcend justice and human love, and that “Christian charity manifests itself in the temporal order as a supernatural discernment of, and adhesion to, justice in relation to the equilibrium of power”: see W Temple, “What Christians Stand For in the Secular World” in Temple, Religious Experience, above, note 271, 243-255 at 253 (emphasis in the original text). Somewhat curiously, perhaps, he then proceeds to observe that “[t]he Christian understanding of history has much closer affinities with the Marxist view, in which all assertions about the nature of man are inseparably bound up with the dynamics of his historical existence, and with other dynamic views of history, which understand the world in terms of conflict, decision and fate, and regard history as belonging to the essence of existence, than with the interpretations of Christianity in terms of idealistic thought which were lately prevalent”: see ibid at 254; cf Denning in the main text accompanying above, notes 244-245. See also generally (and significantly, it is submitted, if nothing else, because of the subject-mater dealt with) Temple, above, note 292 at 37-49 (on rights to property, the doctrine of the Just Price and the Prohibition of Usury; see also ibid at 54 and 82, on the need to preserve order as well as the security of person and property, as to which see also Temple, Mens Creatix, above, note 300 at 217-218 and 225). Temple has also observed thus (see W Temple, “Christianity as an Interpretation of History” in Temple, Religious Experience, above, note 271 at 260; this was in fact the first William Ainslie Memorial Lecture delivered at St. Martin’s-in-the-Field on “D” Day, 6 June 1944):
“A judge who, sitting in a court of law, pronounces an an arbitrary judgment, is abusing his office. The function of the judge is to effect the complete connexion between the general law and the individual case brought before him, and there must be nothing arbitrary about it.”
It is suggested that such “complete connexion” can only be achieved via a natural law approach. This interpretation is apparently supported by Temple himself, as follows (see above, note 292 at 77-78):
“In practice, the Natural Order or Natural Law is discovered partly by observing the generally accepted standards of judgement and partly by consideration of the proper functions of whatever is the subject of enquiry. This is a task for human reason; but so far as reason enables us to reach the truth about anything in its own essence and in its relationships, it enables us to see it as it is in the mind of God. Thus it is a Natural, not a Supernatural, Order with which we are concerned; but as God is the Creator, this Natural Order is His order and its law is His law.”
Reference may also be made to Temple, The Hope of A New World, above, note 300 at 46-57. Finally, a good overview is to be found in Suggate, above, note 271 at Ch 10, entitled “Natural Law”; reference may also be made to ibid at Ch15, entitled “Love and Justice”.
[302] See eg, RJ Henle, SJ, St Thomas Aquinas — The Treatise on Law (University of Notre Dame Press, 1993) and E Gilson, The Philosophy of St. Thomas Aquinas(Translated by E Bullough, 1929, and edited by GA Elrington — Dorset Press Reprint). Cf AJ Lisska, above, note 4.
It should be pointed out that William Temple, whilst endorsing the Aquinian approach, is of the view that it can only be effectively applied if modified: see generally W Temple, “Thomism and Modern Needs” in Temple, Religious Experience, above, note 271, 229-236 (originally published in Blackfriars, a monthly review edited by the English Dominicans, March 1944); reference may also be made to Temple, “Theology To-day”, above, note 300 at 332. But cf Lowry, above, note 271 at 1-10 and 92.
[303] That Aquinas also endorsed: and see generally St Thomas Aquinas, Summa Theologica, 1a. Q2, Art. 3 (the five ways in which Aquinas states the existence of God can be proved) and 1a. Q 44. See also 1a. Q2, Art. 2 (on whether it can be demonstrated that God exists). The reference here is to the Dominican translation which was originally published in America by Benziger Brothers, and which is now available in a five-volume reprint by Christian Classics, Westminster, Maryland. For ease of reference, the citations of the main Parts of the Summa Theologica may be correlated as follows (I follow the former mode of citation, the second being in parentheses): 1a(I); 1a.2ae (I-II); 2a-2ae (II-II); and 3a (III). See also generally eg, William Lane Craig, Reasonable Faith—Christian Truth and Apologetics (Crossway Books, Rev Ed, 1994) and (by the same author) The Kal¨¡m Cosmological Argument (Wipf and Stock, 1979); JP Moreland, Scaling the Secular City — A Defense of Christianity (Baker Book House, 1987); JP Moreland & K Nielsen, Does God Exist? — The Debate between Theists & Atheists (Prometheus Books, 1993); W A Dembski, Intelligent Design—The Bridge Between Science & Technology (InterVarsity Press, 1999); and (from the perspective of biochemistry) Michael Behe, Darwin’s Black Box—The Biochemical Challenge to Evolution (Free Press, 1996). For a particularly accessible (yet nuanced) account (which comes down on the side of the existence of God), see R Swinburne,Is There A God? (Oxford University Press, 1996).
[304] See eg, Phillip E Johnson, Darwin on Trial (2nd Ed, Intervarsity Press, 1993). See also Michael Denton, Evolution: A Theory in Crisis (Adler & Adler Publishers, Inc, 1986); Behe, above, note 303; and John Ankerberg & John Weldon, Darwin’s Leap of Faith—Exposing the False Religion of Evolution (Harvest House Publishers, 1998) (the last-mentioned work constituting a very readable, albeit not simplistic, overview of the various issues concerned).
[305] See generally the works cited at above, note 303.
[306] See eg, Phillip E Johnson, Reason in the Balance — The Case Against Naturalism in Science, Law & Education (Intervarsity Press, 1995) and CS Lewis,Miracles (Fount/HarperCollins, 1947; reissue, 1974).
[307] See CS Lewis, Mere Christianity (Macmillan Publishing Company, Rev Ed, 1952; 1st Paperback Ed, 1960) at pp 55-56. Lewis’s work in support of the Christian faith went, of course, much further: see generally R L Purtill, C. S. Lewis’s Case for the Christian Faith (Harper & Row, 1981). In addition to Mere Christianity, cited above, and Miracles — A Preliminary Study (HarperCollins Publishers, 1974; and originally published in 1947), Lewis wrote numerous essays bearing on various aspects of the Christian faith and which are especially valuable even today in the context of Christian apologetics. For a very recent and comprehensive collection, see CS Lewis, Essay Collection — Faith, Christianity and the Church (L Walmsley (Ed), HarperCollins, 2002).
[308] See eg, J McDowell, Evidence That Demands A Verdict, Vols I & II (Here’s Life Publishers, 1972 & 1979; a new updated edition in one volume was recently released: see The New Evidence That Demands A Verdict (Nelson Reference, 1999)); JW Montgomery, History and Christianity (Reprint: Intervarsity Press, 1971); Sir N Anderson, Jesus Christ: the witness of history (Intervarsity Press, 1985) and (by the same author) Lawyer Amongst the Theologians (Hodder & Stoughton, 1973) as well as Jesus Christ: The Witness of History (Inter-Varsity Press, 1985) and The Evidence for the Resurrection (Inter-Varsity Fellowship, 1966); S Greenleaf, The Testimony of the Evangelists: The Gospels Examined by the Rules of Evidence Administered in Courts of Justice (Reprint: Kregel Classics, 1995); Frank Morison,Who Moved the Stone? (Faber & Faber, 1958); R Clifford, Leading Lawyers’ Case for the Resurrection (Canadian Institute for Law, Theology & Public Policy, 1st Canadian Ed, 1996); NL Geisler, The Battle for the Resurrection (Thomas Nelson Publishers, 1989); and Gary R Habermas & Michael R Licona, The Case for the Resurrection of Jesus (Kregel Publications, 2004). Reference may also be made to P Coplan & RK Tacelli (Eds), Jesus’ Resurrection—Fact or Figment? (A Debate Between William Lane Craig & Gerd Lüdemann) (InterVarsity Press, 2000). It is of no mean significance that the majority of the authors cited in the present note were or are lawyers.
[309] See eg, FF Bruce, The New Testament Documents: Are They Reliable? (Intervarsity Press, 5th Revised Ed, 1960); McDowell, above, note 308, Vol 1 at 31 (as well as the very valuable literature cited therein); AG Patzia, The Making of the New Testament—Origin, Collection, Text & Canon (InterVarsity, 1995); and CL Blomberg, “The Historical Reliability of the New Testament” in Craig, Reasonable Faith, above, note 303 (this last-mentioned essay is excellent and succinct; for more extensive work by the same author with regard to the Gospels, see CL Blomberg, The Historical Reliability of the Gospels (InterVarsity, 1987)). It should be noted that many critics have attempted to point out inconsistencies in the Bible. In this regard, the cogent resolutions in the following classic works are useful in refuting such attempts: see JW Haley, Alleged Discrepancies of the Bible (Whitaker House, nd) and GL Archer, New International Encylopedia of Bible Difficulties (Zondervan, 1982).
[310] See also above, notes 19 and 22.
[311] See generally LL Fuller, The Morality of Law (Yale University Press, Revised Ed, 1969). Cf R Henle, “Principles of Legality: Qualities of Law — Lon Fuller, St. Thomas Aquinas, St. Isidore of Seville” (1994) 39 American Journal of Jurisprudence 47.
[312 ] See Finnis, above, note 3. But cf, by the same author, a later work entitled Moral Absolutes — Tradition, Revision and Truth (The Catholic University of America Press, 1991).
[313] Cf eg, his concept of an “Uncaused Cause”.
[314] See generally Alessandro Passerin d’Entrèves, Natural Law — An Introduction to Legal Philosophy (Transaction Publishers 1994; and originally published in 1951) and J Budziszewski, Written on the Heart — The Case for Natural Law (InterVarsity Press, 1997).
[315] See eg, PE Johnson, Some Thoughts About Natural Law, (1987) 75 California Law Review 217 and, by the same author, “Do You Sincerely Want To Be Radical?” (1984) 36 Stanford Law Review 247 as well as his works cited at above, notes 304 and 306; FS Alexander, “Beyond Positivism: A Theological Perspective” in J Witte Jr & FS Alexander (Eds), The Weightier Matters of the Law: Essays on Law and Religion — A Tribute to Harold J Berman (Scholars Press, 1988) especially at 277-284; EJ Murphy, “The Sign of the Cross and Jurisprudence” (1994) 69 Notre Dame Law Review 1285; JE Maire, “The Possibility of A Christian Jurisprudence” (1995) 40American Journal of Jurisprudence 101; RF Cochran, “Christian Perspectives on Law and Legal Scholarship” (1997) 47 Journal of Legal Education 1; GV Bradley, “Catholic Faith and Legal Scholarship” (1997) 47 Journal of Legal Education 13; DS Caudill, “A Calvanist Perspective on Faith in Legal Scholarship” (1997) 47 Journal of Legal Education 19; DM Smolin, “A House Divided? Anabaptist and Lutheran Perspectives on the Sword” (1997) 47 Journal of Legal Education 28; and JT Noonan, Jr, “Posner’s Problematics” (1998) 111 Harvard Law Review 1768. The remarkable number of recent writings is not only encouraging but also significant.
[316] See D Kennedy, “The Structure of Blackstone’s Commentaries” (1979) 28 Buffalo Law Review 205 at 211-213. But Kennedy subsequently recanted the concept: see P Gabel & D Kennedy, “Roll Over Beethoven” (1984) 36 Stanford Law Review 1 especially at 15-16 and 24. Quaere whether Kennedy was expressing a tongue-in-cheek view here.
[317] See Kennedy, above, note 316 at 213.
[318] Indeed Johnson is of the view that Kennedy’s concept of the “fundamental contradiction” “sounds very much like original sin”: see Johnson, “Do You Sincerely Want To Be Radical?”, above, note 315 at 285.
[319] And cf the main text accompanying above, note 40.
[320] See the main text accompanying above, notes 84-85.
[321] See the main text accompanying above, note 263.
[322] The paradigm model, arguably at least, is to be found in the work of Professor John Rawls: see A Theory of Justice (Harvard University Press, 1971) and PolticalLiberalism (Columbia University Press, 1993).
[323] And see, in the context of the law of contract, the incisive essay by Professor Atiyah, “Contract and Fair Exchange” (1985) 35 University of Toronto Law Journal 1 (reprinted as Essay 11 in PS Atiyah, Essays on Contract (Clarendon Press, 1986).
[324] See “Valedictory Speeches”, above, note 8 at 15. The passage of Scripture he cites from is 2 Timothy 4:7.
[325] As already noted, above (in the asterisked footnote right at the outset of this essay), Lord Denning passed into glory some six weeks after his hundredth birthday. As I have further noted, however, his immeasurable legacy nevertheless lives on not only through his judgments and writings but also (and more importantly) in the lives of all those whom he touched (including mine).
And in an address delivered at the Service of Thanksgiving at Westminster Abbey on 17 June 1999 by Lord Bingham of Cornhill, the learned Law Lord observed, right at the outset of his address, thus (see “Address at the Service of Thanksgiving for the Rt Hon Lord Denning, OM” in T Bingham, The Business of Judging—Selected Essays and Speeches (Oxford University Press, 2000), pp 409¾413 at 413):
“Lord Denning is the best-known and best-loved judge in the whole of our history. There have over the centuries been judges of strong character, powerful intellect, great learning, courage, wisdom, compassion, eloquence, robust commonsense. All these qualities Lord Denning had in abundance. But he had something more: a unique gift of human warmth which endeared him to everyone who knew him and many who did not.”
