A Thought of One's Own

Inspired by the film release of Anna Karenina with Keira Knightley, I thought I'd have a read of some of the great Russian literature around. So I have recently boldly worked my way through The Brothers Karamazov by Dostoyevsky and Anna Karenina by Tolstoy. They're two very different books with very different styles, and I got on much better with the latter than with the former.

Although both writers were living in the same rough time period (from the 1820s to the end of that century), they have very different takes on writing. Dostoyevsky makes you really work, in the same way I think as Hugo does, so that you're compelled to continue reading a lot of the time not through interest in the plot but in trying to figure out what exactly it is you're reading about. It didn't help of course that Russian names are confusing at first sight: someone will have their birth name, they patronym, which tells you who their father was and is different for males and females, their family name, and their affectionate nickname used only by family and close friends. So we have Anna Karenina, who is also Anna Arkadyevna, although at least she doesn't have a nickname. Her son is Sergei Karenin, also Sergei Alexeyich, also Seryozha. That's not so hard to figure out in Tolstoy, but in Dostoyevsky you dive in and have to realise that Aloysha is also Alexey and that they're all Fyodorovich and Karamazovs. It gets you a bit tangled up if you're not familiar with it.

As for plot, again Tolstoy does it better for me. The plot in The Brothers Karamazov is convoluted and has a fair few characters, but really very little happens in it. The outcome is depressing enough, the picture of the justice system is too, but really there's not much story to get your teeth into. The long investigations into religious principles will get you thinking if you feel like it, but it seems the book is largely a vehicle for views with not much of a plot to hold it together. Anna Karenina has some elements of religious and moral investigation too: the heroine is tormented by guilt and Levin, a less vital character, does a lot of thinking about religion towards the end of the book, and leaves us with the message that it's ok to not understand life as long as you spend your life in the pursuit of goodness. But Anna Karenina on the whole is an easier read, written in a much more accessible style, and there's much more plot to get your teeth into. There are a myriad of realistic, active characters who engage in various activities and vices and the main plot is supported by a couple of smaller ones that tie in nicely.

I couldn't help thinking that Anna Karenina is pretty similar to a Greek tragedy in a lot of ways, and although I was constantly propelled to read more because the book is well written, I found it hard to really connect with Anna. She's pretty all over the place, and seems to transform completely from someone lovable and sensible to someone just a bit bonkers. There's a strong message about the dangers of social interactions in there, but really Anna's behaviour just doesn't make sense to me, although that is at least part of the point.

All in all having read both books I feel I have a better understanding of Russian culture and history at that time, which is in itself interesting, and there was something to appreciate in both books.

A more academic post than usual, I thought I'd explore my thoughts on some administrative law as a revision exercise.

Proportionality is a principle in EU and ECHR law that requires that there be a reasonable relationship between the objective which is sought to be achieved and the means used to achieve it. UK courts already use this principle when reviewing actions or legislation for ECHR or EU law compatibility but a question has arisen as to whether it is also a ground of review in domestic administrative law, or, more controversially, whether it ought to be. There are dedicated advocates on both side of the debate, with some holding that proportionality is only suitable for rights based cases, others that it could be a general head of review, and still more academics proposing a bifurcated approach using proportionality and Wednesbury unreasonableness. The back and forth between Craig, Hickman, Taggart, King etc has filled a whole special edition law journal (New Zealand Law Review, 2010) as they argue about the pros and cons of proportionality and it's proper place. The debate centres on the fact that proportionality is a more searching standard of review than Wednesbury unreasonableness, and the question of what the current situation is can hardly be separated from opinions from both judges and academics as to how it should be.

It was stated in R (Association of British Civilian Internees: Far East Region) v SSD by the Court of Appeal that they had difficulty in seeing what justification there now was for retaining the Wednesbury test, but that court was not able to abolish it. There does seem to be a fair amount of hostility towards Wednesbury around (I myself despise having to type it: you always end up with Wednesday instead). In the light of the increasing influence of comparative and international law on UK courts both in statutes such as the HRA and ECA and in judgments themselves, where judges are more inclined than before to consider international cases as 'soft law' to create a framework for their own decisions, it would seem that accepting an international test into domestic law would make sense, especially since the courts already use it in regards to EU and ECHR cases. However, some objections can be raised to doing so, and there is heated academic debate on the issue.

One objection raised to proportionality as a general ground of review is that proportionality does not translate well to non-rights based cases. Taggart argues that proportionality is useful only in certain contexts and he and Hickman argue that it would be a reversal of the current burden of proof,  thus imposing an unfair burden on administrative bodies. They argue that although Wednesbury unreasonableness is a 'safety net' test, engaged where the case is so outrageous as to not fall into other categories of review, proportionality is a starting point test to which one would automatically go. The result of this is, they would argue, that where a proportionality assessment is engaged, it is presupposed that the alleged act, rule, or decision is presumptively unfair because it infringes a right, so it must be justified by the person doing it. Contrastingly, unreasonableness review presupposes the act is lawful, putting the burden of proof on the affected party to show that it is not. If this is the case, general proportionality review is not desirable from a cost point of view, as it would encourage wasteful litigation from those trying to take advantage.

However, this view has been countered by Paul Craig, who argues that the EU has managed perfectly well with proportionality as a general head of review for forty years (Hickman rejects this argument because of the lack of precedent in UK or common law jurisdictions for using proportionality this way).

He argues that objections fail to realise that proportionality review being applicable to all administrative decisions does not mean that it would be the only head of review, and that it has better normative and practical justifications than rationality review. Furthermore, proportionality requires that the decision making body justifies its choice in response to a challenge in exactly the same way as rationality: the criteria are what differs and not the direction of the burden of proof.

Craig argues that proportionality has a threefold normative justification as a head of review. Firstly, it fits with the belief that a public body is given power for a purpose, and the court should review to ensure it keeps broadly to that purpose, ie, that administrative action requires reasoned justification. Craig further argues that there are structural benefits to proportionality because Wednesbury unreasonableness is often applied in a structurally lacking way, and that it would be more simple to have one test across the board, although critics take issue with this statement too. The point is perhaps less convincing because a pragmatic simplicity cannot form a principled basis for a legal doctrine, but it is worth keeping it in mind in terms of administrative efficiency.

The benefits of the structure of proportionality as Craig describes it may well counter suggestions that proportionality puts the burden of proof the wrong way round. Craig argues that the structural benefit is that the agency must show that the challenged action was necessary and suitable, and that it did not impose an excessive burden, whilst the court must show the opposite to quash the decision. This seems like a fair approach, and where there was no clear decision either way, as is likely to often be the case, it would be a balance of the two sides that decided the result. This balance is perhaps played down in the conception of proportionality in the British courts, as Rivers argues, whilst in Europe the balancing is the key.

Craig offers further support for proportionality as a head of review in the form of criticisms of rationality review, or Wednesbury unreasonableness. Practically, he argues, if one were to have proportionality as only a rights based inquiry, as Mike Taggart suggests, rationality review would rarely be useful in the Wednesbury form. Because of the high standard of proof, although cases of a decision that no reasonable decision maker could have made could in principle arise, in practice it would be very hard to prove such a departure from reason. Furthermore, in practice, this is not how the courts use the test: both Sedley J and the Court of Appeal have acknowledge that it suffices to show some error of reasoning that robs the decision of its logical integrity, which is not in fact the test formulated by Lord Greene.

Lord Bingham held in A v Secretary of State for the Home Department that the intensity of review is much greater under the proportionality approach. This is desirable in many ways, as it means that the court can consider alternative courses of action instead of being limited to the narrow considerations under Wednesbury, although this leads judges onto controversial ground. However, King would have it limited for that very reason, restricted to cases where there is a special reason for more intensive review, and keeping rationality review otherwise. This doesn't have the advantage of simplicity, but it does at least recognise the role proportionality can legitimately play in English administrative law.

The criticisms of the test itself in Wednesbury can be coupled with the argument that although there are normative reasons for rationality review, there are none for so strict a form of review as Wednesbury presents. Lord Cooke in Daly said as much, and suggested instead a less extreme test of whether a reasonable decision maker could have reached the decision. The need for a separation of powers and the avoidance of courts substituting judgments does not require that so narrow a category of decisions be quashed, and indeed Allan argues that there is a risk of courts showing too much deference to administrative decisions with the result that they fail to fulfil their duty in protecting administrative rights. Craig further argues that Wednesbury review can lead to the very judgment substitution it seeks to avoid because courts have enough latitude to decide whether to review on rationality or purpose and relevance that they can effectively decide what tools they will use.

Although the debate as to the theoretical desirability of proportionality as a general head rages, the courts thus far have shown little inclination to adopt it as such. The House of Lords held in Brind that they would not accept proportionality as a separate head of review in domestic law. This does not mean that there is not still some momentum for the change: both Lord Cooke and Lord Slynn in R v Chief Constable of Sussex ex parte ITF ltd and Alconbury respectively have recognised that proportionality and rationality review can in fact result in the same outcome, resulting in a question arising of whether they even need to be kept separate, and whether it makes sense to do so. Despite this, proportionality is not at present a separate head of review in English law, despite the convincing arguments that it may be a desirable move for the law to take. It is conceivable that in the years to come, if the UK continues to adopt large portions of European law, that the courts will reconsider the decision in Brind, but it seems at present that there is not a great enough momentum for such a change.

Personally, I don't feel all the fuss is justified. The Wednesbury test is messy, uncertain, and the whole thing is just a bit all over the place since all our ultra vires reasons seem to overlap: being unreasonable is also sometimes acting on irrelevant considerations and it might be completely absurd too, etc etc. Lord Greene recognised that when he 'devised' the test in Wednesbury itself. So why not sweep up a bit, get rid of the strange test we have (which isn't really 'traditional' because it's only been around since 1948) and adopt something we're already using, we already have rules for, and have a nice clear test across the board? I don't really see a problem with more searching standards: we don't control the government enough, and all the arguments for deference seem a bit, well, pointless. Democratic mandate doesn't mean you can start doing nonsensical things, and although some politicians are lawyers, they aren't all, and they probably don't have the same level of expertise as a Supreme Court judge to know what the law they're making is doing. Yes, there's going to be a line somewhere between leave the administrative body alone and interfere for the general good, but I think really we can trust judges to figure out what they're doing by and large. It's not as if Parliament can't pass legislation to reverse decisions anyway. All of this makes me a contextual institutionalist, by the way, according to King's rather long article.

There is a lack of variety in the law degree. Although the law is a time consuming and hugely varied topic of study, it can be frustrating sometimes to be stuck with a choice of this law or that law and nothing else. I find this especially noteworthy when I talk to friends who study the sciences, who get so much choice in what they study. This is at least partly because they're all doing four year courses instead of the standard three that a law degree takes, but I still find it hard to see how Spanish studies are particularly relevant to a Chemistry degree.

Admittedly, the reason we have such limited scope for choice is because we do a qualifying law degree and that means we have to do the units that every law has to know a bit about like Criminal, Tort, Contract, etc, but when it comes to choosing the two units I do get a say in, the range seems pretty limited. There's one non-law topic on the options list, a couple of historical types of law, and the rest boils down to international law, which is not yet compulsory but probably will be one day, and company and commercial type law. Oh, and family law, but how many people are going to take that, with it's huge content of depressing and misery inducing divorce cases?

There's the further question of whether taking a non-commercial option is going to do your employment prospects any harm, although somehow I doubt the employer really cares as long as you've got your 2:1 or better and not failed any of the compulsory modules.

But still, would it really be so hard to offer a bit of economics in the law course? A touch of politics? A sliver of sociology? I mean, learning all about the law is a bit useless if you have no idea about the context. You learn briefly about habeas corpus and how important it is, but don't really look at where it came from historically. You hear about the government trying to control terrorism but are expected to have enough of your own background political knowledge to grasp what exactly the government was/is doing. Plus it would be nice to slow down every now and again and really look into something. But alas, it seems for now that the choice looms between company and commercial law units...