The limits of law

Friday, 29 November 2013

Lord Sumption, a Supreme Court judge, has argued in a speech that the 'expansion of the empire of law' has been driven by the decline in religious and moral values, The Daily Telegraph reports. Acts which previously would have been considered 'casual misfortunes' or 'governed only by principles of courtesy' were now subject to legal regulation.

The growth of law, Lord Sumption argued in a speech in Kuala Lumpur last week, is 'a response to a real problem':

'At its most fundamental level, the problem is that the technical and intellectual capacities of mankind (sic) have grown faster than its moral sensibilities or its co-operative instincts. At the same time other restraints on the autonomy and self-interest of men (sic), such as religion and social convention, have lost much of their former force, at any rate in the west. The role of social and religious sentiment, which was once so critical in the life of our societies, has been largely taken over by law.'

While describing the European Convention on Human Rights as 'wholly admirable' Lord Sumption also criticised the European Court for indulging in 'judge-made fundamental law extending well beyond the text which it is charged with applying'. He continues:

'The effect of this kind of judicial lawmaking is in constitutional terms rather remarkable. It is to take many contentious issues which would previously have been regarded as questions for political debate, administrative discretion or social convention and transform them into questions of law to be resolved by an international judicial tribunal.'

A full text of Lord Sumption's speech is available from the Supreme Court website.