A draft and exceptionally mis-named Abstract

There are many beginnings to any thread or theme of law and many consequences that are felt from the inclusion of political or social norms within the legal sphere in terms of behavioural values or group identity and the nature of permissible public identities.

When looking at a prejudice or set of prejudices in particular, seeking to determine a set of causes for the existence of a prejudice goes beyond a deontological explanation, since it must cross category boundaries, without bringing in categorical errors.

This work considers the area of the human rights of Lesbian, Gay, Bisexual and Transgender (LGBT) persons as they have been expanded and normalised both within international human rights law and in common law. The common law in particular is explored since it was within the laws of England and Wales that the second apparent codification of the criminalisation of homosexual sexual acts occurred. The first apparent codification by Justinian in Roman Law did not appear in most of the later criminal codes of those European nation states who follow the Roman legal tradition in their codified law; it had minimal effect in legal historic terms. The consolidation by Henry VIII in the Statute for the Elimination of the Vice of Buggery at the time of the Restoration (1533-4) however was inherited in one form or other by every common law jurisdiction derived from the laws of England, whether by legal tradition (USA) or deliberative Reception Statute (the decolonised African and Asian nations in the Commonwealth). This is the reason for selecting both a positive and normative legal method to examine the common law in parallel with international human rights law, to determine at what points the normative assumptions which underpin most legal systems differ between the common law heritage and the developing international human rights system. The approach is best summarised as that which uses positive theory as a constraint upon normative theory to go beyond mere utilitarianism, although some utilitarian theory will also be considered; particularly Bentham and Mill.

An examination of the laws of the United Kingdom and the legal history of the Buggery Act (1533) and developmental law following the various consolidation changes made by the Georgian legislature of 1824 (Offences Against the Person Act), through the Victorian modernisations of 1861 (Offences Against the Person Act) and 1885 (Criminal Law Amendment Act), and the eventual establishment of a whole category of sexual offences in 1956 is the first case study of this work. This study goes further than simply being historic, since it must also examine the “techniques of production” introduced by Leslie Moran (The Homosexual(ity) of Law)  following the partial decriminalisation of homosexuality in 1967 and the eventual influence of normative international human rights law in the shape of decisions of the European Commission and Court of Human Rights in the case of Dudgeon v UK in 1981. The criminalisation of homosexuality in common law is not the only thread relating to the lives of LGBT persons, and for that reason it is also necessary to examine the Strasbourg cases that changed the law in other areas, and the response of government in making changes through the passage of Acts of Parliament. The inclusion of the Human Rights Act (1998) and subsequent interpretation of law using Strasbourg case law as interpretative (but not binding) in certain issues affecting LGBT persons is also included in this section, since it shows the merging together of the regional legal cases and the common law cases within the common law system that originated the criminal offence of buggery. There is a further issue within the criminalisation and “technique of production” relating to the common law interpretation of the word ‘private’ and how the mechanisms of law (police, prosecution service and courts) produced in this area of criminal law a definition of private which became effectively a lex specialis in its own right. This definition leads towards a discussion of the various elements of the debate on the private/public divide which is both a philosophical and political question as well as being a legal question in human rights terms, and a question that concerned Hannah Arendt in particular throughout her work; from her Doctorate thesis on Love and St. Augustine, right through to The Life of the Mind which was published posthumously.

The second case study turns to the United States of America, which although not a commonwealth nation did inherit the common law of England, and in particular the version of it given by Blackstone in his treatise on the laws of England. Although there will be some federal-level interpretations to be made in order to determine what Constitutional weight is given to the formation of a group identity and what difference that makes in Constitutional judicial review the main focus of this work is on the ability to form legal relationships in one particular state; California.

The reason that California has been selected is that their judicial interpretation of the Constitutional position of homosexuals (and lesbians) with regards to marriage rights took place against the broader picture of the Defence of Marriage Act at federal level and found that within the Californian Constitution (in the Re Marriage cases), DOMA did not apply and Californian law included the rights of same-sex couples to register a lawful marriage. Californian law also contains the voter sponsored initiative; which is unique in US law in that it allows the bare majority of voters to sponsor and pass an amendment (proposition) that is capable of striking down a judicial decision at the highest level, effectively rewriting the Constitution. This was done in this case with the passage of Proposition 8, and the subsequent legal cases bought (Perry v Schwarzenegger) et al, are continuing to examine the passage and lawfulness of this proposition asking if the tyranny of the majority is sufficient  to overrule minority rights; given the history of the USA and in particular the civil rights movement following the passage of Amendment XIV of the US Constitution.

The third and final case study turns to Uganda and several “effects” in Ugandan law in terms of direct inheritance and legal and political inclusion of some elements of other common law systems (in particular the early inclusion of the English law criminalising homosexual sexual activity through the still-extant 1950 Criminal Code) and the recent Constitutional changes whereby Uganda followed the example of the DOMA of the United States of America, and modified their Constitution to exclude same-sex marriage by defining it purely as being between a man and a woman. By continuing this examination from a common law perspective into an African Constitutional Republic with a common law heritage we can examine both the legal and political effects (consequences) of adaptive changes made in the area of LGBT rights as civil rights (rather than human rights in international terms) to generate a better understanding of the obstacles to the true legal equality of LGBT persons. Recent rulings of the Ugandan Supreme Court and High Court on the issues of ‘outing’ homosexuals carried out by the Red Pepper and other news media and the Constitutionality of a mandatory death penalty will be examined. Also under consideration is the lack of formal prosecutions for homosexual activity in an African nation described as “the most hybrid” example of a nation state in transition between the older “Big Man” model of governance and true Republican Constitutionalism with an effective rule of law. Recent moves by a member of the Ugandan Parliament to introduce a Bill to outlaw Homosexuality and an evaluation both of the legal situation at present and the consequences both of passage and of a failure to pass this Bill will be examined.

The theoretical analysis of the outcomes given by law in the three case studies and how inter-connected the situation of civil rights for LGBT persons are in a global (international legal) sense will be carried out using the work and theories of Hannah Arendt, qualified by a Queer Legal (Moran et al) perspective and the interpretations of Arendt by Judith Butler. Arendt has been chosen as the main focus because of her almost obsessive examination of the difference between the private and the political, and her absolutism in the production of critiques of the Constitutional settlement of the United States and what that meant in civil rights terms under the XIVth Amendment. Arendt was also a consequentialist, as well as an absolutist and her examination of the banality of evil shown by Eichmann in particular and Judith Butler’s subsequent examination of Arendt’s attempts to ‘reclaim’ Kant from the followers of Nazism gives us a perspective that has not been included in international legal theory (Koskiniemi/From Apology to Utopia) until recently (Sam Moyn/The Last Utopia) and we can follow Moyn’s thoughts on the reality of international human rights as law as opposed to the rather utopian vision of international human rights in a political sense, to extract the reasons why the common law as a corpus has either failed or succeeded in including LGBT rights as human rights within domestic law. We also have Arendt’s own explanations of why utility was not sufficient (for her) and her observation (The Human Condition) that mankind is obviously both singular and plural since no human exists only in isolation and must appear to others in order to live a human life – it is this observation that lies at the heart of Arendt’s refusal to classify herself as a philosopher and her preference for the title political theorist. This observation also allows us to go beyond the absolute trap of severance between the private (social) and political that Arendt set for herself and examine the law on the fact that even if we agree that the law should never have been used to legislate against private behaviour, it was, and it is the consequences of that legislative act that lies directly against the (universal) common law acceptance of a generalised norm of human rights law that the rights of LGBT persons are included in Universal norms.

Arendt also focussed on the idea of the promise in political terms, both in critiques of hiding information (the case of the Pentagon Files) and in terms of a utopian promise that is less than universal in application (the case of Little Rock, Arkansas), and whether mere interpretative developments can be enough over time to change what was actually granted by the promise into what people actually require the promise to have been. This also is a question of interpretation of obligations under international law, and although the work cannot give full discussion of the matter of obligations as a matter of law any evaluation of Arendt must include a recognition of the actual position of law.

The explanation of why in particular the focus of the work is on LGBT rights, as opposed to any other area of human rights law that creates a difference of political opinion in terms of domestic legal obligations to international treaty law lies within the developing case law on a global scale; the first recognition of LGBT rights as human rights was by the Strasbourg court in 1981 and this was an overturning of previous Strasbourg cases on the issue of criminalisation, all of which had been struck out as inadmissible by the Commission. The refusals were given on the grounds that the qualified right to a private life could be qualified by a state for reasons of morality and that homosexual sexual activity was within the margin of appreciation granted to individual states under the principle of subsidiarity laid out in the European Convention on Human Rights and Fundamental Freedoms. Since the Yogyakarta conference passed the Yogyakarta principles in 2007 developments in this area of law have been rapid, with statements, recommendations and general Assembly discussions taking place for the first time on these matters. Recently the Human Rights Committee of the International Covenant for Civil and Political Rights also urgently determined that the issues surrounding violence towards LGBT persons required a special report to be written, and it is against this growing awareness of legal recognition that this work rests.

The purpose of the work is not to criticise the common law or attempt to create a new Utopian ideal for human rights, it is to use the developed awareness of what the common law has ‘produced’ in the three jurisdictions under consideration; to better inform an awareness of how any treaty directly relating to LGBT rights should be drafted, and what consequential flaws can be avoided using methods usually reserved for regional treaty law (ECHR/EU) and the recent developments seen with the Rome Statute of the International Criminal Court. It is contended that although the common law is capable of evolution, and of adapting to social change; the case-by-case methods used by regional arrangements when included without a principle of subsidiarity in international human rights law (as produced discursively as the correct legal position in the Yogyakarta Principles) will leave common law states in a position where they are not applying at a domestic level the developed international norms, and that the UN Charter (Article 2(7)) is inelastic, preventing lawful action to be taken against those states. Any Treaty for LGBT rights therefore, should be a new creation and should follow the principles as expanded in this section and the previous evaluation to determine the best method of creating a treaty that will actually grant full legal equality to LGBT persons in a non-Utopian sense.

Causing Offence

Since I enjoyed a piece without making any citations, I’m doing it again – this time while referring to something that I shall not actually link to at all.

It has come to my attention that someone I have followed for a long time has become momentarily famous – and in that moment of fame an analysis of his propensity to share often tasteless, sometimes offensive and (subject dependent) borderline unlawful jokes has come under scrutiny… Something that I would have warned him of, had I known that he was intending to do something that would bring the focus of the commentariat onto his life.

Much comment has been made about his attitude to ‘race’ – and in fact a page of selected jokes from his twitter stream has been created, which – if you didn’t know any better – would appear to support the contention that he is racist.

This misses, of course, the literally hundreds of other offensive jokes he’s passed on in the time I’ve followed him – homophobic, transphobic, misogynist, androgynist, ageist, ableist… well; I trust the point that comes across there is that the jokes are not selected in their offence… Like Henry Higgins from Pygmalion he treats all subjects alike and it would be possible to put together any selection of those jokes to prove a point.

This is not to say that some of the jokes he repeats aren’t intensely uncomfortable for me – certain of the gender-based (as a wider category than merely sexist or homophobic) jokes in particular annoy, irritate or upset me. What I do not do is unfollow, critique or scream blue murder about those jokes – instead I try to analyse why they make me feel the way they do.

Have we really got to the point as a Society that we cannot accept that someone might pass on jokes without actually subscribing to any animosity about the individualised subjects? If it has then we really need to get a sense of humour, and fast – the consequences otherwise are never being able to say anything at all.

Tones of Subtlety

Since the debate about the death penalty seems to be aimed at leaving the EU, let’s take a look at that…

Firstly, it is not the EU that stops us having the death penalty – it is, as previously stated, the ECHR Protocol 13.

However, if we leave the ECHR mechanism (by giving up our membership of the CoE) – something we can do, but which would leave a tail-end withdrawal jurisdiction (cases can be bought for three years, the findings are still valid and enforceable) then as a consequence, and certainly following the Interlaken procedures under Protocol 14 we would also be ejected from the EU as a consequence (note: ejection is almost certain; it’s never been done before but that’s no reason that a very serious failure of obligation, tied to our opt-out on Lisbon to apply Protocol 14 directly through EU law would not lead specifically to the most serious method available).

So… It would take three years from leaving the Council of Europe for the Death Penalty to be allowable without review by a trans-national (extra territorial) Court. from this point, even were the process started immediately once Parliament returns from the summer recess it would be late-stage 2014 before the death penalty could be considered as a ‘safe’ issue in domestic legislation – at this point we are not in the CoE or the EU and there’s an election in six months or so…

Chances of any government seeking re-election bringing in a Death Penalty Bill that can pass both the Commons and the Lords within six months, and that will enhance (remember, we’re out of Europe – the coalition is dead as a future prospect) the electoral chances of the Conservative Party?

I’d give that one a zero.

Death Penalty

I’m doing this one without links first, since I see no valid reason not to say what needs saying.

To propose, as has been done, the removal of all treaty obligations which prevent the death penalty forgets the origin of the removal.

The 1951 Homicide Act removed the death penalty*, substituting life imprisonment for those crimes (except High Treason and a couple of other offences) which still had the death penalty. This debate of removal had taken place over more than a century; from J.S.Mill onwards. This was done prior to any Treaty requiring the death penalty to be removed.

Protocol 13 of the ECHR, stopping the death penalty was introduced and ratified by the UK in 2003; we’d already removed the death penalty from any remaining crimes in preparation for this. the ICCPR Optional Protocol 2 also abolishes the death penalty, and we’ve also ratified that, although it does not have any domestic effect – our courts don’t have to follow the ICCPR.

So we removed the death penalty over a century or so, piece by piece before any Treaty required us to. It can be said therefore that the common law states that the death penalty is an anathema to the law – no sitting judge has ever wanted to use it in place of the sentencing options they had available.

It’s also worth considering the counter-effects of sentencing options on findings of guilt. Despite rose-tinted spectacles there were not fewer murders in the past, and although a murder could (if hanged) only kill once (or in a sequence) before being stopped, there were many murders that were not solved, or when taken to court, the accused were found not guilty because… What little evidence there is on Jury behaviour proves that they are reluctant to convict for serious crimes, and the more serious the punishment the higher the unlikelihood of a conviction becomes. So the death penalty would lead to a higher rate of non-conviction than the life sentence already does.

I would also like to add that I find it superbly irrational for a libertarian arguing the State cannot be trusted with taxes or health care to argue that the State can be trusted with the power of life or death over any person. Come back when your argument has fewer holes than the average seine net.

 

*Amend: the wording seems to suggest this single Act removed the Death Penalty – it was merely part of the Consolidating exercise on defences; but a step that was required in order for the Life tariff sentences to work in practice. A wording short-cut that says more than it ought.

On Beginnings

Lesek Kolakowski, Modernity on Endless Trial (The University of Chicago Press 1990, 1997 ed.) 0-226-45046-5 Chapter 1.2 ‘Looking for the Barbarians: The Illusions of Cultural Universalism.’

Jean-Jacques Rousseau, A Discourse Upon the Origin and the Foundation Of The Inequality (Kindle version)

Martin Heidegger, Being and Time (Tr. John Macquarrie & Edward Robinson, Blackwell Publishing 1962) 0-631-19770-2

H Arendt Between Past and Future: Eight Exercises in Political Thought (Penguin Books, 2006 Edition)

On Objectivity

T W Adorno and M Horkheimer Dialectic of Enlightenment (Verso Classics, 1997 Edition)

H Arendt Between Past and Future: Eight Exercises in Political Thought (Penguin Books, 2006 Edition)

A Kolnai, Ethics, Value, and Reality: selected papers of Aurel Kolnai (University of London, Athlone Press 1977) 0 485 11169 1 Chapter 2: ‘The Sovereignty of the Object: Notes on Truth and Intellectual Humility.’

B Nyhan and J Reifler, ‘When Corrections Fail: The Persistence of Political Misperceptions’ Political Behaviour <http://www.springerlink.com/content/064786861r21m257/fulltext.html> published online 30 March 2010, accessed 11 June 2010.

A Sen Identity and Violence: The Illusion of Destiny (Penguin Books, 2006) 978-0-141-02780-7

Unexpected Assistance

A part of my job as a Graduate Teaching Assistant this year is Tort Law – seminars, some undergraduate dissertation supervision and also marking essay and examination scripts. The essay this year was a piece on Campbell and the extension made to Breach of Confidence into Misuse of Private Information.

RIP HRA: Killed during birth

“That not only led, directly or indirectly, to two wars but also to conditions that tested, close to destruction, some of the key foundations of any liberal democracy.”

Quoting Jack Straw, in the Guardian

Violence in the Public arena

Haven’t blogged for a while, but I’ve been deep in thought about the presence of violence in the lives of LGBT persons – there is no part of our collective or individual existence that is not threatened by violence – from early childhood experience of bullying through to high rates of suicide, corrective rape, violent beatings, manslaughter and the “gay panic” defence, and murder.

The spheres of modernity

The concepts of freedom of speech, of opinion, of freedom from want and fear are the four keystone rights in the Universal Declaration, from which all others were derived in order to be guaranteed.