The Story of King Tex: A Modern Allegory

Dr Dug Cubie

1st February 2017

This blog presents a modern allegory (with apologies to Lon Fuller).

In Lon Fuller’s 1969 book The Morality of Law, Fuller set out the story of King Rex, as a cautionary tale of the need for clarity, consistency and predictability within legal systems. Profoundly influenced by the horrors of the 20th Century, in particular the Nazi regime in Germany and the Stalinist regime in the USSR, Fuller desired to establish certain benchmarks for legal systems based on his view of the “inner morality of the law.” Fuller argued that the inner morality of a legal system was based first on the morality of duty (the duty to provide basic rules for the ordering of society) and then the morality of aspiration (the aspiration of excellence within a legal system). Surprisingly little of Lon Fuller’s account of King Rex needs to be changed to fairly accurately reflect the start of President Trump’s administration…

So, as Fuller might have written: This story concerns the unhappy reign of a monarch who bore the convenient, but not very imaginative and not even very regal sounding name of Tex.

Eight Ways to Fail to Make Law

Tex came to the throne with the zeal of a reformer. He considered that the greatest failure of his predecessors had been in the field of law. For generations the legal system had known nothing like a basic reform. Procedures of trial were cumbersome, the rules of law spoke in the archaic tongue of another age, justice was expensive, the judges were slovenly and sometimes corrupt. Tex was resolved to remedy all this and to make his name in history as a great lawgiver. It was his unhappy fate to fail in this ambition. Indeed, he failed spectacularly, since not only did he not succeed in introducing the needed reforms, but he never even succeeded in creating any law at all, good or bad.

His first official act was, however, dramatic and propitious. Since he needed a clean slate on which to write, he announced to his subjects the immediate repeal of all existing law, of whatever kind. He then set about drafting a new code. Unfortunately, trained as a lonely property developer, his education had been very defective. In particular, he found himself incapable of making even the simplest generalisations. Though not lacking in confidence when it came to deciding specific controversies, the effort to give articulate reasons for any conclusion strained his capacities to the breaking point.

Becoming aware of his limitations, Tex gave up the project of a code and announced to his subjects that henceforth he would act as a judge via Twitter in any disputes that might arise among them. In this way under the stimulus of a variety of cases he hoped that his latent powers of generalisation might develop and, proceeding case by case, he would gradually work out a system of rules that could be incorporated in a code. Unfortunately the defects in his education were more deep-seated than he had supposed. The venture failed completely. After he had handed down literally hundreds of fabulous decisions within the confines of 140 characters neither he nor his subjects could detect in those decisions any pattern whatsoever. Such tentatives toward generalisation as were to be found in his opinions only compounded the confusion, for they gave false leads and alternative facts to his subjects and threw his own meagre powers of judgment off balance in the decision of later cases.

After this fiasco Tex realised it was necessary to take a fresh start. His first move was to subscribe to a course of lessons in generalisation. With his intellectual powers thus fortified, he resumed the project of a code and, after many hours of solitary labour, succeeded in preparing a fairly lengthy Executive Order. He was still not confident, however, that he had fully overcome his previous defects. Accordingly, he announced to his subjects on Twitter that he had written out a GREAT CODE and would henceforth be governed by it in deciding cases, but that for an indefinite future the contents of the code would remain an official state secret, known only to him and his family. To Tex’s surprise this sensible plan was deeply resented by his subjects, who took to the streets in their thousands to protest. They declared it was very unpleasant to have one’s case decided by rules when there was no way of knowing what those rules were.

Stunned by this rejection, Tex undertook an earnest inventory of his personal strengths (which were legion) and weaknesses (of which he had none). He decided that life had taught him one clear lesson, namely, that it is easier to decide things with the aid of hindsight and by reflecting on the good old days than it is to attempt to foresee and control the future. Not only did hindsight make it easier to decide cases, but – and this was of supreme importance to Tex – it made it easier to give reasons. Deciding to capitalise on this insight, Tex hit on the following plan. At the beginning of each calender year he would decide all the controversies that had arisen among his subjects during the preceding year. He would accompany his decisions with a full statement of reasons. Naturally, the reasons thus given would be understood as not controlling decisions in future years, for that would be to defeat the whole purpose of the new arrangement, which was to gain the advantages of hindsight. Tex confidently announced the new plan to his subjects over Twitter at 3am, observing that he was going to publish the full text of his judgements with the rules applied by him, thus meeting the chief objection to the old plan. Tex’s subjects received this announcement in silence, then quietly explained through their more enlightened democratic representatives that when they said they needed to know the rules, they meant they needed to know them in advance so they could act on them. Tex muttered something to the effect that they might have made that point a little clearer, but said he would see what could be done.

Tex now realised that there was no escape from a published code declaring the rules to be applied in future disputes. Continuing his lessons in generalisation, Tex worked diligently on a revised GREATER CODE, and finally Tweeted that it would shortly be published. This announcement was received with universal gratification. The dismay of Tex’s subjects was all the more intense, therefore, when his code became available and it was discovered that it was truly a masterpiece of obscurity. Legal experts who studied it declared that there was not a single sentence in it that could be understood either by an ordinary citizen or by a trained lawyer. Indignational became general; and soon a protest appeared before Tex’s gaudy palace of gold carrying signs that read, “How can anybody follow discriminatory immigration rules that nobody can understand?”

The GREATER CODE was quickly withdrawn. Reluctantly recognising for the first time that he needed assistance, Tex put a staff of experts who he hadn’t purged to work on a revision. He instructed them to leave the substance untouched, but to clarify the expression throughout. The resulting GREATEST CODE was a model of clarity, but as it was studied it became apparent that its new clarity had merely brought to light that it was honeycombed with contradictions. It was reliably reported by respected journalists that there was not a single provision in the code that was not nullified by another provision inconsistent with it. An even larger protest appeared before the golden palace, carrying signs that read, “This time the king made himself clear – in both directions.”

Once again the code was withdrawn for revision. By now, however, Tex had lost patience with his subjects and the negative attidude they seemed to adopt toward everything he tried to do for them. He decided to teach them a lesson and put an end to their carping. He instructed his remaining experts to purge the code of contradictions, but at the same time to stiffen drastically every requirement contained in it and to add a long list of new crimes such as practicing a different religion or being an immigrant. Thus, where before individuals summoned to the throne were given ten days in which to report, in the revision the time was cut to ten seconds. It was made a crime, punishable by ten years imprisonment to cough, sneeze, hiccough, faint or fall down in the presence of the king (he stressed that he was a germaphobe). It was made treason not to understand, believe in, and correctly profess that fossil fuels and human activity have no impact on climate change whatsoever.

When this GREATEST EVER CODE was sent out on Twitter a near revolution resulted. Leading citizens declared their intention to flout its provisions. Someone discovered in an ancient author a passage that seemed apt: “To command what cannot be done is not to make law: it is to unmake law, for a command that cannot be obeyed serves no end but confusion, fear and chaos.” Soon this passage was being quoted in a hundred petitions to the king.

The code was again withdrawn and a staff of experts chaired with the task of revision. Tex’s instructions to the experts were that whenever they encountered a rule requiring an impossibility, it should be revised to make compliance possible. It turned out that to accomplish this result every provision in the code had to be substantially rewritten. The final result was, however, a triumph of draftsmanship. It was clear, consistent with itself, and demanded nothing of the subject that did not lie easily within their powers. It was printed and distributed free of charge through social media.

However, before the effective date for the new GREATEST EVER CODE, REALLY had arrived, it was discovered that so much time had been spent in successive revisions of Tex’s original draft, that the substance of the code had been seriously overtaken by events. Ever since Tex assumed the throne there had been a suspension of ordinary legal processes and this had brought about a climate of uncertainty for the economy and institutions of the country. Accommodation to these altered conditions required many changes of substance in the law. Accordingly as soon as the new code became legally effective, it was subjected to a daily stream of amendments. Again popular discontent mounted; an anonymous blog appeared online carrying scurrilous cartoons of the king and a leading article with the title: “A law that changes every day is worse than no law at all.”

Within a short time this source of discontent began to cure itself as the pace of amendment gradually slackened. Before this had occurred to any noticeable degree, however, Tex announced an important decision. Reflecting on the misadventures of his reign, he concluded that much of the trouble lay in bad advice he had received from experts. He accordingly declared he was reassuming the judicial power in his own person. In this way he could directly control the application of the new code and insure his country against another crisis. He began to spend practically all of his time hearing and deciding cases arising under the new code.

As the king proceeded with this task, it seemed to bring a belated blossoming his long dormant powers of generalisation. His opinions began, indeed, to reveal a confident and almost exuberant virtuosity as he deftly distinguished his own previous decisions, exposed the principles on which he acted, and laid down guidelines for the disposition of future controversies. For Tex’s subjects a new day seemed about to dawn when they could finally conform their conduct to a coherent body of rules.

This hope was, however, soon shattered. As the online record of Tex’s judgments became available and were subjected to closer study, his subjects were appalled to discover that there existed no discernible relation between those judgments and the code they purported to apply. Insofar as it found expression in the actual disposition of controversies, the new code might just as well have not existed at all. Yet in virtually every one of his decisions Tex declared and redeclared the code to be the basic law of his kingdom.

Leading citizens from all walks of life began to hold private meetings to discuss what measures, short of open revolt, could be taken to get the king away from the bench and back on the throne. While these discussions were going on, Tex was impeached for nepotism and conflict of interests, old before his time and deeply unloved by his subjects.

The first act of his successor, President Hex, was to abolish the monarchy and introduce genuine democracy and the rule of law based on the values of non-discrimination and accountability of elected officials.

Coda: During their famous debates in the 1950s over the legality of the Nazi regime and so-called grudge informers, Lon Fuller and HLA Hart disagreed on the role of morality and the law. Hart was swift to point out that Fuller’s concept of the inner morality of the law, and his eight principles of legality, could actually uphold unjust laws. Hart argued that Fuller’s procedural natural law approach failed to engage with the substantive morality of flawed laws, as a legal system may be structurally sound yet still allow unjust laws. Fuller meanwhile countered that when people are ‘compelled to explain and justify their decisions, the effect will generally be to pull those decisions towards goodness…’ Both Hart and Fuller’s arguments have resonance today. The cautionary tale of King Rex was based on some of the most brutal regimes in history. One can only hope that these warnings are heeded over the next four years.

With thanks to my legal theory colleagues Patrick O’Callaghan and Natasa Mavronicola for their illuminating comments.

School Admissions and the Equal Status Act

screenshot Irish Times headlineI have written a short piece for the Irish Times concerning school admissions and the Equal Status Act. The article has been published here. I may in due course develop this into a longer article for a journal in which I can provide evidence for each aspect, and tease out the issues in more depth.

Some extra points:

The Supreme Court case is Stokes v Christian Brothers High School [2015] IESC 13.

My article only discusses the main judgment in the case, agreed by three judges. It does not discuss the other judgment in the case, in which two judges found that the Supreme Court did not have jurisdiction to hear an appeal in a case such as this.

The Equality Authority appeared as amicus curiae in this case. See the press release of the Irish Human Rights and Equality Commission (which replaces the Equality Authority).

Aisling Twomey writes in the Irish Examiner about how travellers would thrive if they were given the opportunity.

The earlier stages are as follows:

Commentary on the High Court stage:

  • Olivia Smith, ‘Perpetuating Traveller children’s educational disadvantage in Ireland: Legacy rules and the limits of indirect discrimination’ (2014) 14 International Journal of Discrimination and the Law 145 (Sage Journals)
  • Mel Cousins, “Travellers, equality and school admission in the High Court: Stokes v Christian Brothers High School Clonmel” – http://works.bepress.com/mel_cousins/22
  • Page at Northern/Irish Feminist Judgments Project

I previously posted on travellers in County Clare and the Equal Status Act.

Equality Tribunal Decision on Transgender: A Good Beginning Towards the Protection of the Rights of Transgender People

 

CCJHR blog is pleased to be able to repost this blog by Dr Tanya ni Mhuirthile from Human Rights in Ireland

The recent decision of the Equality Tribunal that discrimination on the basis of gender identity amounts to a breach of rights under the Employment Equality Acts is to be welcomed. It represents a huge step forward in terms of protection for those who have questioned their gender at birth.

As has been well reported (here and here), the case before the Equality Tribunal concerned a male-to-female transgender woman, Louise Hannon, who was constructively dismissed from her workplace when she revealed her preferred gender identity to her employer. A large part of the treatment for gender identity disorder requires ‘real life experience’ where the person lives in the preferred gender role without the need to revert to the gender role of birth. In this case, her employer informed Ms Hannon that she could only dress in her female identity while in the office and would need to change to her previous male identity when meeting clients. She was not permitted to use the female toilet at her workplace, even though it was not unusual for her male colleagues to use it if the male toilet was occupied. Despite a number of requests to do so, her employer failed to provide her with an email address in her new legal name. Finally, her employers requested that she relocate to new offices and, as these were not yet ready, that she work from home for a short while. When, having on a number of occasions over the ensuing months informed her employer that she was finding it impossible to work from home, Ms Hannon requested that she be permitted to return to the office she was informed that a new person had started working in the office and that there was no room for her. The Equality Tribunal found that there is a legal obligation on employers to enable people with gender identity disorder work in their preferred gender. In this case, it found that the employer’s request that the complainant switch between male and female identity was ‘clearly ludicrous’. Thus the tribunal held that the approach of her employer to the issue of Ms Hannon’s gender identity amounted to discriminatory dismissal on gender and disability grounds.

This is a historic decision as it represents the first time where the Employment Equality Acts have been successfully used to provide protection from discrimination for transgender people. This is an important step towards securing the long term wellbeing of a small but marginalised group within Irish society.

Transphobia is the fear of, or aversion to, or discrimination against transgender people or people who transgress (or are perceived to transgress) norms of gender identity or gender expression. Consequently, it has a negative impact on a person’s ability to fully participate in society. Transgender people face daily discrimination, as the facts of this case clearly illustrate. The report ‘Transphobia in Ireland’ produced by Transgender Equality Network Ireland (TENI) in 2009 identifies the wide ranging nature of transphobia experienced in Ireland. Of particular concern in this regard is the lack of express protection under equality or hate crime legislation for transgender people. Under Irish equality legislation, one of the grounds for discrimination the ‘gender ground’ is currently defined as ‘that one is male and the other is female’. Although this decision of the Equality Tribunal is to be welcomed for interpreting the gender ground as including trans identity, such protection could be considerably strengthened by a simple amendment of equality legislation to include expressly the phrase ‘ or on the grounds of gender identity and/or gender expression’ within the gender ground.

The social disenfranchisement experienced by trans people is heightened by the lack of legislative framework to enable the recognition of trans people’s preferred gender identity. Famously, in the Foy case, the High Court ruled that this absence is incompatible with the State’s obligations under the European Convention on Human Rights. (I’ve previously blogged about the introduction of such legislation here.) The Gender Recognition Advisory Group is due to report to Joan Burton, Minister for Social Protection shortly with proposals for the introduction of gender recognition legislation. Such legislation will ensure that a person is legally treated as being of the preferred gender identity from the moment of recognition onward. However, it will not guarantee protection for those people who are not yet recognised. Therefore, people who are at the most vulnerable and early stages of the transition process will not be explicitly protected by legislation. To ensure that their dignity is fully respected, the Equality Acts must be amended to account for issues of gender identity and gender expression.

The recent census represents a golden opportunity missed in terms of assessing the multiplicity of gender identities in Ireland. In response to the question on gender only two options were available on the census form: male or female. Had a third box ‘other’ with space for inclusion of one’s own identity been available, this would have been a simple and inexpensive way to research the issue of gender identity in Ireland. The failure to do so reflects the institutionalised invisibility of transgender identities. Ireland’s civil and public service is sorely lacking in policies on gender identity issues. With the notable exception of the passports legislation which will grant a passport reflecting a person’s preferred gender identity in certain circumstances, interaction with officials of the State is heavily dependent on the goodwill and understanding of the individual public servant. This situation needs to be rectified by the introduction of trans friendly policies which ensure parity of treatment with all other people irrespective of gender identity.

The decision of the Equality Tribunal is a first step towards safeguarding the rights of transgender people. However, significant gaps in protection persist. The Equality Acts should be amended to account for trans experience. Similarly, policies on gender identities should be introduced throughout the civil and public service. Finally, broad and inclusive gender recognition legislation should be enacted. Taken together, these measures will help to ensure equality and respect for transgender people. 

 

20th World Aids Day – Stigmatisation and Discrimination in Ireland

Today is International World Aids Day. Often portrayed as a health issue, it is far more complex than that involving important human rights issues in relation to such issues as discrimination, access to health services, and the provision of adequate support services.

In Ireland recent data shows that nearly 5,000 people had tested positive for HIV by June 2008, with 170 new cases being seen in the first half of the year. In the run up to the 20th World Aids Day the stigmatisation of those who live with HIV has been highlighted. In the first national report on HIV related stigma and discrimination published on November 26th by Stamp Out Stigma. Commenting on the report, Ciaran McKinney, vice-chair of the campaign stated “The studies found that people living with HIV experienced significant levels of stigma and discrimination across a wide range of areas: in families, among friends, in the workplace and in accessing health and social care services.”

Significantly, the findings include the fact that 49% of those living with HIV reported that they were discriminated against by their friends, and 28 % that they had experienced discrimination from their families. 54% of the general public and 84% of people living with HIV agreed that people with HIV are viewed negatively by society. Whilst the general public in the main felt that people with HIV should not feel ashamed of their condition, a significant proportion (23%) reported that they would worry about sharing a meal with someone with HIV, illustrating a worrying lack of understanding about the virus.

Discrimination against people living with HIV is of course illegal in Ireland under the Employment Equality Act 1998 and the Equal Status Acts 2000 and 2004. In addition, the Equality Authority has previously indicated that it would take up cases of discrimination based on HIV and AIDS although no such cases have yet been seen. What is not clear is why that is the case, although stigmatisation and the fears of people living with HIV and AIDS may well be a factor. Clearly at a minimum more education and advocacy work about HIV and AIDS is needed to promote greater awareness and understanding. But with the recent budget cutting the Equality Authority’s budget by 43% spending in this area generally is unlikely to see a large increase in the near future.

However, whatever the financial climate it is important to remember that “The promotion and protection of human rights must be at the centre of all aspects of an effective response to HIV and AIDS” (Amnesty International).

Indirect Discrimination in Denominational Schools’ Admission Policies

The Jewish Free School (JFS) is considered the best Jewish school in the United Kingdom. As a result the school is over-subscribed. As in Ireland (under s. 7(3)(c) of the Equal Status Act 2000), denominational schools in the UK are entitled to favour children of the same denomination as the school in enrollment procedures. In the case of the JFS one of the selection criteria was to “be recognised as being Jewish by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth” (JFS Admission Policy). It appears that the Chief Rabbi was, in the case of admissions to JFS, using a sub-rule for admissions that considered whether a child was ethnically Jewish (i.e. having at least one Jewish parent or grandparent), with ethnic Jews being preferred in the case of over subscription to the school.

Yesterday the Chief Schools Adjudicator ruled that the exclusion of a child whose mother (who incidentally is head of English at the school) was a convert to Judaism and not, therefore, ethnically Jewish, was “indirect” discrimination. Importantly, however, the CSA also held that there was no race-relations implication in preferring Jewish students over non-Jewish students, finding instead that this was a matter of religion.

The question of ‘indirect discrimination’ in school admission policies may become germane in Ireland as schools (particularly at primary level) continue to be oversubscribed. Can a Catholic school, for example, not only prefer Catholic children to non-Catholic children in its admission policies but then prefer some Catholic children to others if the number of applicants still out-strips the number of available places? Would it be permissible to narrow down the field of applicants based on the frequency of a child’s attendance at church services? Or based on whether their parents went to Catholic schools? Or based on whether their parents are Catholic? It is clear that the JFS admission criteria were not attempts to assess levels of genuineness of religious conviction or levels of religious conviction; Judaism is an ethnicity as well as a religion, the same is possibly not true of Catholicism (although see O’Toole, “Ethnic Catholicism in Boston” (1992) New England Quarterly 117 for an alternative view). However questions of indirect discrimination may begin to arise in Ireland, and the JFS case suggests that s. 7(3)(c) of the Equal Status Act may not allow for such admission policies on the part of denominational schools.

This story is also reported in The Guardian and Ha’aretz.

ECtHR Decision on Roma Education Rights in Czech Republic

The European Court of Human Rights last Tuesday handed down its judgment in DH & Others v Czech Republic concerning the segregated education of Roma children in the Czech Republic. The Court found that the education offered to the Roma children was substandard and was “not attended by safeguards [citations omitted] that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State took into account their special needs as members of a disadvantaged class”. The segregation of the Roma children and their provision with lower quality education constituted a discriminatory violation of their right to education (Article 14 & Article 2, Protocol One) and the respondent state was ordered to pay 4,000 Euro to each child. Interestingly, the judgment makes extensive reference to EC law, international human rights law, non-binding reports and opinions on Roma education in the respondent state, as well as the Court’s own jurisprudence.