This post has been contributed by Prof Jill Marshall, Module Convenor for Jurisprudence and legal theory.
In mid-November, the BBC and other news media reported the decision of the Oxford Dictionaries to name ‘post-truth’ as the word of the year.
What is ‘post-truth’? This is an adjective defined as ‘relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.’
Oxford Dictionaries saw a sharp rise in the frequency of the word’s use this year in the context of the European Union referendum in the United Kingdom and the presidential election in the USA. In both of these, we saw the rise of incorrect information and untruths, false reports and fictional accounts portrayed as ‘true’. At the same time, many politicians appeared to discredit experts who were seeking to use concrete facts based on real accurate information. Use of the word ‘post-truth’ has thus increased by a reported 2,000% (source: The Guardian and The Oxford Dictionaries).
We are living in changing times. This has been a momentous year. Some historians have made comparisons to 1914, others to the late 1920s in Europe. The New Statesman recently published an article saying that ‘democracy depends on division…[but] also…on unity: a shared commitment to basic norms and principles, and a vision of the common good.’ A variety of news reports point to deep political divisions in many societies. The elections mentioned show close results in terms of percentage points but often deeply divided positions between the ‘winners’ and ‘losers’. The New Statesman says that one of the themes of the new times we are living in is a crisis of liberalism.
This issue raises interesting ideas for the Jurisprudence module: for example in relation to feminism, Marxism, natural law and its notions of the common good, as well as Ronald Dworkin’s work on equality, integrity and making the law the best it can be.
Throughout the study of the subject, we need to question and critique views that are presented. We need to think about the nature of law, its purpose, including what the subject matter of law ought to be and its political and social context.
But mention of ‘post-truth’ particularly brings to my mind liberalism and law.
Law, and the legal system, is generally viewed as seeking to bring some notion of justice as impartiality, objectivity and fairness, with all people equal before the law. The liberal democratic state provides a backbone to enable that system of the rule of law to function. At the same time, it enables each of us – who are all considered to be of equal moral worth – to live our own lives, each different from the other, depending on our idea of the good life.
HLA Hart, in his debate with Patrick Devlin in the 1960s, followed John Stuart Mill’s harm principle:
‘The only purpose for which power may rightfully be exercised over any member of a civilised community against his will is to prevent harm to others.’
On this view, private morality is not usually the law’s business. It has generally been accepted that the twin ideals of liberty and equality have been the hallmark of the last 500 years. Are these now currently under threat if we are living in a period of ‘post-truth’ politics?