BY SEAN WALSH
The amusingly Dickensian Lord Sumption, doubtless still writing that final ruling on the perduring Chancery matter of Jarndyce vs Jarndyce, has temporarily removed his wig in favour of a clerical collar, to better sermonise on the state’s treatment of Lucy Connolly.
“I shall not waste any sympathy on Mrs Connolly” he reassured us last week, as if “sympathy” were some auditable or countable thing – like Jaffa cakes or MAGA baseball caps, and not the infinitely self-replenishing spiritual resource more nuanced preachers take it to be.
Why do they do it, these judicial types? Why do they fight shy of normal human feeling? Why are so many of them so taken with how a legal argument is constructed, and yet so indifferent to its overall aesthetic?
You aren’t going to convince anyone with eyes-to-see that the Shard is beautiful by referring him to the wonderful intricacy of the original building plans; you aren’t going to persuade anyone with ears-to-hear that Schoenberg is melodious by pointing to the shape of the musical notation; and you aren’t going to persuade those “sympathetic” to Lucy Connolly’s tragic situation that they are wrong to feel that way by praying in aid what Shakespeare called the “quiddities, quillities, tenures and tricks” of the lawyers who insist on keeping her locked up.
People are too impressed by formal reasoning, and the people – logicians, scholastic theologians and, yes, even judges – who waste years of their life practising it. A deductively valid argument doesn’t tell you anything new in that its conclusion will necessarily be tucked away in its premises. It is an exercise in conceptual housekeeping.
This is not to say they lack value. Just that formal arguments, like people, can be too clever by half. They’re fine but only when we’ve all agreed what their place is.
If you reason your way into the belief that it is just, legally or morally, to separate a child from her mother by sticking the latter in prison for a social media post of ambiguous intent, then perhaps you’ve gone a bit wrong at some point. Pace Lord Sumption this isn’t really about sympathy as much as logic, something a medievalist such as himself must appreciate. The political imprisonment of Lucy Connolly – and let’s be honest, that’s what it is – is the reductio ad absurdum of the legal argument that put her there.
Because, again, there is more to logic than formal validity. There is something attractive about consistency, but not necessarily consistency for its own sake. A body of thought, an argument, a piece of music might convey something outside itself, or it might instead settle for a purely internal integrity or wholeness. But this could be a pleasing consistency of nonsense, like the poem Jabberwocky, or even an entertaining mutually affirming collection of untruths, such as The Alastair Campbell Diaries.
This is what can happen with the law: that it finds sufficiency in consistency and surrenders to the seductive charms of the syllogism. If you become Jesuitical about process you end up justifying one bit of legal text in terms of another then rinse and repeat. When this happens, the law becomes curved inwards and ceases to speak of anything beyond itself.
Chesterton made a similar point when he wrote that “reason in the void” is the chief mark and element of insanity. And the valorisation of reason for its own sake, unattached at every moment in the inferential sequence from the everyday contingencies of life, leads to such meretricious and maddening theorising. Chesterton’s target was the “materialist scientist”, but the same insight applies to the legal Jesuit. Thus, the most recent madness: the case of Hamit Coscun, found guilty of a public order offence on the grounds that he provoked his own attempted murder. A genuinely vicious example of circular legal reasoning, which ought to be interpreted as a cry for help on the part of the presiding magistrate, who managed to pass sentence with a worryingly straight face.
There are too many judges and barristers who are clever but in a tragic, cryptic crossword sense, and who prefer the well-crafted syllogism over robust common sense. They should be reminded that there is another way of looking at common sense: as intergenerational knowledge, which survives because it has not yet been found wanting – the kind you get when you step out of Chambers and allow yourself to be roughed up by real life.
There is a reason for the traditional trappings and fripperies of our legal system – they are intended to remind us all that lawyers often work on the fringes of ridiculousness and must therefore work hard so the rest of us don’t laugh at them. The obscene persecution and prosecution of Lucy Connolly shows they need to work harder.
The Heath Robinson legal justification for separating a child from her mother in this case amounts to spitefulness sanctioned by the tyranny of process. Nastiness is nastiness even – especially – when dressed up in the polite language of the Inns of court; and irrespective of the rationed sympathies of Lord Sumption.
Sean Walsh is a former university teacher in the philosophy of mind. That was a while ago – but he keeps up with the subject. 2015-2017 he was slightly homeless. He now writes and is the very proud father of a wonderful child. He is grateful for everything he has.