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Liberty in a Culturally Plural Society

Published online by Cambridge University Press:  08 January 2010

L. S. Lustgarten
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I want to begin this paper by recalling a once-lively school of English political and legal thinking which has fallen undeservedly into neglect. I refer to the pluralists, notably the lawyer F. W. Maitland, the religious scholar J. N. Figgis, and, early in their careers, the political theorists Harold Laski and G. D. H. Cole. All were influenced by the writings of the German legal scholar Otto von Gierke, which Maitland as editor and translator had first introduced into England. The pluralists' concerns were at once political and legal; virtually alone among English writers in this century until the 1970s, their work avoided the barrenness that comes of treating political theory and jurisprudence as unrelated enterprises. I shall describe the problems that preoccupied them and some of their resultant theories, and also the way in which specifically legal doctrine was both a target of their criticism and an important element in their thinking.

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Papers
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Royal Institute of Philosophy Supplements , Volume 15: Of Liberty , March 1983 , pp. 91 - 107
Copyright
Copyright © The Royal Institute of Philosophy and the contributors 1983

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References

1 Under the title of Political Theories of the Middle Ages (1900)Google Scholar, the first fragment of Gierke's Das Deutsche Genossenschaftsrecht to appear in English.

2 In this paper I shall use the term ‘rights’ to refer to claims that are vindicated through legal institutions, especially courts, whilst reserving ‘freedom’ or ‘liberty’ for appeals to political or moral principle.

3 Maitland, F. W., ‘Moral Personality and Legal Personality’Google Scholar, in Collected Papers, IIIGoogle Scholar, Fisher, H. (ed.) (1911), 304–320.Google Scholar

4 Hence the title of the next portion of Gierke's massive work to appear in English, translated and preceded by a long and excellent introduction by Sir Ernest Barker: von Gierke, O., Natural Law and the Theory of Society (1935)Google Scholar. A good brief discussion of Gierke's analysis of liberalism may be found in Frug, , ‘The City as a Legal Concept’, Harv. L. Rev. 93 (1980), 1057, 1086–1089.CrossRefGoogle Scholar

5 Frug, , op. cit., 1090ffGoogle Scholar. See also Levin, J., The Charter Controversy in the City of London, 1660–1688, and its Consequences (1969).Google Scholar

6 Op. cit., 312–333.

7 Mill of course was not concerned only with the pressures against individuality exerted by the state, but equally if not more so with those of what he termed ‘public opinion’. This is a much more sophisticated appreciation of the obstacles to individual liberty than that evinced by most liberals, who have concentrated almost exclusively on the dangers of the state.

8 Also central to liberalism, of course, has been the protection of private property. Exploration of the connection between this value and Mill's notion of self-regarding action, though an intriguing question, cannot be attempted here. It should be said too that in Mill at any rate the older notion of freedom as participation in self-governance was not completely abandoned; see e.g. Ryan, A., J. S. Mill (1974), 202–203.Google Scholar

9 Gierke, O., Associations and Law, G. Heiman (trans.) (1977), 13.Google Scholar

10 See Nicholls, D., The Pluralist State (1975), Ch. 3, especially pp. 43–47Google Scholar, and the essay by Laski, Harold, ‘The Pluralistic State’Google Scholar, first published in 1919 and reprinted as Appendix B. of ibid.

11 For Gierke, see Barker, 's introduction, op. cit., ix–xxviiGoogle Scholar; Figgis, J. N., Churches in the Modern State (1913), 248ff.Google Scholar

12 Barker, , op. cit., xvii.Google Scholar

13 E.g. Figgis, , op. cit., 121–124Google Scholar. However, as Nicholls points out, op. cit., Ch. 5, there was considerable variation of opinion and emphasis among the various pluralists.

14 Frug, , op. cit., 1081–1090.Google Scholar

15 Maitland, F. W., ‘Trust and Corporation’, op. cit., 323–404.Google Scholar

16 Notably, Entick v. Carrington (1765) 19 St. Tr. 1030Google Scholar, and Wilkes v. Wood, (1763) 19 St. Tr. 1153Google Scholar. A similar distinction is at the root of one of the most important doctrines in American constitutional law, which permits plaintiffs to protect their civil rights in the federal courts by suing officials rather than the state: Exparte Young 209 U.S. 123 (1908).Google Scholar

17 Most spectacularly in the celebrated Taff Vale case, [1901] A.C. 426.Google Scholar

18 Notably in Bonsor v. Musicians' Union [1956] A.C. 104Google Scholar, and the comments of Lloyd (1956) 19 M.L.R. 221, and Wedderburn, (1957) 20 M.L.R. 105.Google Scholar

19 Trade Union and Labour Relations Act 1974, s. 2 which lays down that no trade un on can be treated as a body corporate, but does have the capacity to make contracts, sue and be sued in its own name.

20 E.E.T.P.U. v. Times Newspapers Ltd. [1980] 1 All E.R. 1097. A registered trade union can, however, bring such an action.

21 General Assembly of the Free Church of Scotland v. Overtoun [1904] A.C. 515.Google Scholar

22 After an outbreak of rioting, the effect of the decision was reversed by Parliament in the Churches (Scotland) Act 1905.

23 ‘Moral Personality and Legal Personality’, op. cit., 319.

24 Figgis, , op. cit., Ch. 1.Google Scholar

25 G. D. H. Cole's distinctive contribution to pluralist theory was his advocacy of participation in industry in a series of books written during and just after World War I, notably Self-Government in Industry (1917)Google Scholar and Guild Socialism Restated (1920).Google Scholar

26 See further Glazer, N. and Moynihan, D. (eds), Ethnicity (1975), passim.Google Scholar

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30 See the sensitive discussion of these questions in a pamphlet published by the Yorkshire Community Relations Committee, The Education of Muslim Girls (1975).Google Scholar

31 Panesar v. Nestlé Co. Ltd. [1980] I.R.L.R. 60.Google Scholar

32 Sikhs finally achieved exemption from the crash helmets requirement by the Motor-Cycle Crash-Helmets (Religious Exemption) Act 1976.

33 See Comment, , ‘Cultural Pluralism’, Harv. Civ. Rights-Civ. Libs. L. Rev. 13 (1978), 133, 146–168.Google Scholar

34 On political representation for ethnic minorities, see Van Dyke, , op. cit.Google Scholar, and Palley, C., Constitutional Law and Minorities (1978)Google Scholar. Employment and university admissions are of course at the centre of the celebrated ‘reverse discrimination’ question, on which see Lustgarten, L., Legal Control of Racial Discrimination (1980), 14–25Google Scholar, and sources cited therein.

35 R. v. John [1974] 2 All E.R. 561.Google Scholar

36 This was the view of Lord Scarman in the Gay News case, R. v. Lemon [1979] A.C. 617, though it was not shared by the other judges who held the defendant rightly convicted.

37 Wisconsin v. Yoder, 406 U.S. 205 (1972).Google Scholar

38 Ahmad v. ILEA [1978] 1 All E.R. 574.Google Scholar

39 R. v. Adesanya, The Times 16–17 07 1974Google Scholar discussed by Poulter, (1975) 24Google Scholar I.C.L.Q. 136.Google Scholar

40 Tay, , ‘Law, the Citizen and the State’Google Scholar in Kamenka, E. et al. (eds), Law and Society: The Crises in Legal Ideals (1978).Google Scholar

41 This difference of perspective was crucial in the divergence of opinion in the Court of Appeal in the Ahmad case, supra, n. 38. Orr L. J. took the former view, Scarman L.J. the latter.

42 In reality the issue is by no means as sharply polarized, or as clear-cut, as the text suggests. See further Lustgarten, L., op. cit., Ch. 1.Google Scholar

43 This antipathy is expressed very strongly throughout Ch. 3 of On Liberty.

44 Dunn, J., Western Political Theory in the Face of the Future (1979) 76Google Scholar. For an extended treatment of Herder, see Berlin, I., Vico and Herder (1976).Google Scholar

45 In addition to the writings of Van Dyke cited earlier, see especially Fiss, , ‘Groups and the Equal Protection Clause’, Phil. & Pub. Affair. 5 (1976), 107Google Scholar and Bittker, B., The Case for Black Reparations (1973).Google Scholar

46 This was the ground of the thoughtful and cogent dissent of Douglas, J. in the Yoder case, supra, 406 U.S. 205, 241ff.Google Scholar

47 Education Act 1944, s. 30.

48 Lord Denning M.R. who rejected cultural pluralism and joined Orr L.J. to make the majority (see n. 41) against Scarman L.J.

49 To oversimplify, it is not part of UK municipal law and cannot be used by a British court to invalidate an Act of Parliament, but the courts will use it as an aid to construction of a statute in ambiguous cases.

50 Hooker, M. B., Legal Pluralism (1975), Ch. II and III.Google Scholar

51 Pennington, R., Stannary Law (1973), passim.Google Scholar