B Academy Review 8

British Academy Review Issue 18 Summer 2011 THE BRITISH ACADEMY 10–11 Carlton House Terrace, London SW1Y 5AH Telephone: 020 7969 5200 Fax: 020 7969 5300 Web site: www.britac.ac.uk © The British Academy 2011 The British Academy Review contains articles illustrating the wide range of scholarship which the British Academy promotes in its role as the UKs national academy for the humanities and social sciences. Views of named writers are the views exclusively of those writers; publication does not constitute endorsement by the British Academy. Suggestions for articles by current and former British Academy grant- and post-holders, as well as by Fellows of the British Academy, are very welcome. Suggestions may be sent to the Editor, James Rivington, at [email protected] Page make-up by Don Friston Printed in Great Britain on recycled paper by Henry Ling Limited at the Dorset Press Dorchester, Dorset Cover image: © AP/Press Association Images Contents Thoughtfulness and the Rule of Law 1 Professor Jeremy Waldron FBA Language diversity, endangerment, and public awareness 12 Professor David Crystal FBA Tackling tipping points 21 Professor Tim O’Riordan FBA and Professor Tim Lenton How do different kinds of societies cause and mitigate environmental change? 28 The case of the lost woodlands of ancient Nasca Dr David Beresford-Jones Motivation and global justice: Philosophy and practice 31 Dr Kerri Woods Prizing the past for the present and the future 34 Professor David Lowenthal FBA in conversation with Sir Simon Jenkins Phantasmagoria 41 Professor Marina Warner FBA in conversation with Professor Hermione Lee FBA New light on ancient medicine 45 Professor Vivian Nutton FBA The British Academy 48 iii COALITION STARTS ITS WHITE-KNUCKLE RIDE Thoughtfulness and the Rule of Law PROFESSOR JEREMY WALDRON FBA British Academy Law Lecture, read 1 February 2011 1. Law’s obtuseness human artifacts. They are made by men (made by people), interpreted by people, and applied by people. Rule by law We want to be ruled thoughtfully. Or, to put it in a seems to be rule by people all the way down. And in some democratic idiom, we want our engagement in governance of those capacities human thoughtfulness is paramount. to be thoughtful and reasoned, rather than rigid or Law-making, when it is done explicitly, is a thoughtful mechanical. Thoughtfulness – the capacity to reflect and business and often it represents a paradigmatic exercise of deliberate, to ponder complexity and to confront new and reason in policy conception, in drafting, and even unexpected circumstances with an open mind, and to do (sometimes) in legislative deliberation. Though every so articulately (and even sometimes argumentatively) in legislator no doubt hopes his works will endure, the the company of others with whom we share a society – legislative mentality at its best represents the agile and these are some of the dignifying attributes of humanity, flexible application of human intellect, on a collective man at his best (men and women at their best) in the scale, to the shifting problems and challenges faced by a governance of their society. society. That’s what I have argued in The Dignity of But does the quest for thoughtfulness in government Legislation and elsewhere.2 mean endorsing the rule of men rather than the rule of Historically, though, proponents of the Rule of Law law? To be ruled by laws rather than by men has been an have tended to be suspicious of legislation for that very aspiration – indeed an imperative – of the Western political reason. It’s too clever by half, particularly in democratic tradition since the time of the ancient Greeks. But it was politics; it changes too quickly; in an assembly of the Greeks who noticed – or some of them – that rule by representatives, said Hobbes, it changes haphazardly with law might be something opposed to thoughtfulness in every variation in the political composition of the government. Law, said Plato’s visitor in The Statesman, ‘is legislature – different men, different laws.3 If the idea of like a stubborn, stupid person who refuses to allow the the Rule of Law is to be credible, law needs to be relatively slightest deviation from or questioning of his own rules, constant in the face of changes of personnel among those even if the situation has in fact changed and it turns out to who are thinking about how the society is governed. be better for someone to contravene these rules.’1 The same point was made 20 years ago by the Supreme Thoughtfulness – when we get it – is an attribute of human Court of the United States in 1992 in the great case of rulers, of people (the few or the many) participating in Planned Parenthood v. Casey.4 What would happen, said government. And maybe it is one of the things we turn our Justice O’Connor in the plurality opinion, if precedents back on when we say we want to be ruled by laws – changed as often as changes in personnel on the court? categorical, inflexible laws (laid down, in many cases, Wouldn’t people infer that this was rule by those who centuries ago) – rather than ruled by men. For the sake of happened to be judges rather than rule by law? We can’t the benefits that the Rule of Law provides, we swallow the go round overturning our past decisions too often, said the costs of a certain diminution of intelligence in government. Court, certainly not our important decisions. (They were Of course, in many ways this distinction between rule talking about Roe v. Wade 5 – which some of them had by men and rule by laws is a false contrast. Laws are previously disclosed a thoughtful inclination to revisit.) 1 Plato, The Statesman, ed. Julia Annas and Robin Waterfield (Cambridge may now in some measure become of no effect … It followes hence, that University Press), p. 59. when the legislative power resides in such convents as these, the Laws 2 Jeremy Waldron, The Dignity of Legislation (Cambridge University Press, must needs be inconstant, and change, not according to the alteration of 1999) and Jeremy Waldron, ‘Principles of Legislation’ in The Least the state of affaires, nor according to the changeablenesse of mens min- Examined Branch: the Role of Legislatures in the Constitutional State ed. des, but as the major part, now of this, then of that faction, do convene; Richard Bauman and Tsvi Kahana (Cambridge University Press, 2006). insomuch as the Laws do flote here, and there, as it were upon the 3 In many cases, says Hobbes, where legislative disagreement is resolved waters.’ – Thomas Hobbes, De Cive, ed. Howard Warrender (Oxford by voting, ‘the Votes are not so unequall, but that the [defeated party] University Press, 1983), pp. 137-38. have hopes by the accession of some few of their own opinion at another 4 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 sitting to make the stronger Party …. [They try therefore to see] that the (1992). same businesse may again be brought to agitation, that so what was con- 5 Roe v. Wade 410 U.S. 113 (1973). firmed before by the number of their then present adversaries, the same British Academy Review, issue 18 (Summer 2011). © The British Academy 1 There is … a point beyond which frequent overruling emphasise the point that one thoughtful judge may come would overtax the country’s belief in the Court’s good up with conclusions that are quite different from those faith. … There is a limit to the amount of error that can that another thoughtful judge comes up with. One man’s plausibly be imputed to prior Courts. If that limit thoughtful judge is for another man the political partisan should be exceeded, disturbance of prior rulings would of a rival set of ideals. The Rule of Law is supposed to mean be taken as evidence that justifiable reexamination of that a party coming to law can expect to have his fate principle had given way to drives for particular results determined by the law itself – the law the legislature has in the short term. The legitimacy of the Court would enacted – not by the vagaries (even the thoughtful fade with the frequency of its vacillation.6 vagaries) of whoever is wearing a wig in the courtroom he 8 With that sort of changeability, it would be less convincing happens to be assigned to. for a thoughtful court to present itself as guardian of ‘the character of a … people who aspire to live according to the 2. Clarity and certainty in the Rule of Law rule of law.’7 Law can be obtuse, rigid, stubborn and in its application In any case, whether or not laws are made and changed mechanical – but, people will say, ‘At least it is predictable; thoughtfully, there is still the issue of thoughtlessness in at least we know where we stand with a law that does not the way they are applied. Intellectual agility in the making often change and which is applied, constantly and of law is one thing; intelligence in its application is faithfully whether the subjective opinions of the judiciary.’ another. I said a moment ago that laws don’t interpret and And this, it is said, is not just an effect of the Rule of Law. apply themselves; it is people who interpret them and Many will say that it is as close as we can get to the essence people who apply them, and if we are looking for of the Rule of Law. ‘The rule of law,’ said Thomas thoughtfulness in that process, it might well seem that we Carothers, ‘can be defined as a system in which the laws are are looking for something other than the Rule of Law.

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