Jury Nullification: The Short History of a Little Understood Power

Richard Marshall is a PhD student in History at the University of Plymouth. His doctoral research explores the place of trial by jury in the politics, culture and society of late eighteenth-century English radicalism. He is supervised by Dr James Gregory and Dr Claire Fitzpatrick.

Keywords: Juries, Nullification, Legal History, Popular Justice, Repression, Liberties, Rights

Jury nullification (or Jury Equity) is perhaps the greatest safeguard against unjust laws or excessive punishment to exist in Britain. It is the practice whereby a jury delivers a verdict contrary to the evidence, law and judicial directions by acquitting a defendant they believe beyond a reasonable doubt guilty by the letter of the law, but on grounds of conscience think should not be punished.

This little understood power has existed since a 1670 ruling declaring that no juror could be punished for a ‘wrong’ verdict, which when coupled with the double jeopardy rule leaves the door ajar for juries to essentially override laws.

For centuries it was considered a critical element of the constitution, a check against tyrannical government and unfair laws but above all a mechanism that permitted the people to directly influence, comment upon and force reform of laws they deemed morally suspect. What’s more, it was widely understood and discussed as a normal part of the legal process. The idea a jury of ‘freeborn Englishmen’ could not deviate from a judge’s charge or the legal letter was an almost universally rejected one. Indeed, it was not uncommon for jurors to be encouraged to ignore or reject judicial guidance and actively consider not just the evidence but the interests of their community, religion, nation, and constitution.^[1] When an English juror entered the jury box in the eighteenth century, he was expected to act for his country and discretion was the norm. Granted not everyone accepted the idea but none denied the existence of nullification nor the rights and powers of jurors as the ultimate arbiters of justice. Most today though will never have heard of this power. For too many in the modern legal fraternity nullification is a dirty word, with a myriad of objections raised against it.^[2] Most notably, they argue it is ineffective at procuring meaningful change and encourages prejudice among jurors.

I was brought to think about the history of this murky power by the recently introduced Police, Crime, Sentencing and Courts Bill, the politically interested attempt to attack freedoms of protest, speech and the rights of the traveller community all at once. Regarding protest, it seeks to lower the legal test required for police to act against otherwise legitimate protest, with its most egregious element being the new offence of ‘public nuisance’. This will carry a maximum ten-year prison term and is defined as causing ‘serious harm’ to the public through ‘serious annoyance, serious inconvenience or serious loss of amenity’. Meanwhile the Bill also proposes to criminalise trespass, an effort to attack the freedoms of the traveller community opposed by the majority of policing bodies including both the National Police Chiefs Council and the Association of Police and Crime Commissioners.

The backlash has been immense. Politicians, lawyers, civil rights organisations, charities and many others have spoken out against the Bill, as have many thousands in mass demonstrations across the nation. It would not be unfair to suggest that a significant minority, perhaps more, oppose the provisions of this Bill as infringements on liberty. This was the very sort of legislation radicals of the past would have hoped and indeed encouraged jurors to nullify.

But does this mean we should today? For me, the answer is an unquestionable yes. Nullification exists for just these circumstances, to frustrate legislation passed or enforced spuriously or for political reasons. And the past provides plentiful justifications and precedents for its use.

In the first instance, our national history is littered with cases where juries, in spite of evidence and judicial direction, acquitted defendants to the benefit of society. Arguably the most well-known is that of Clive Ponting, the British civil servant who leaked documents relating to the sinking of the General Belgrano during the Falklands Conflict. His trial for allegedly breaching the Official Secrets Act was a cause célèbre and his unexpected acquittal, contrary to the judge’s direction, caused enough consternation for the Conservative government to remove the ‘Public Interest Defence’ Ponting relied on from Official Secrets legislation in 1989.

But the Ponting case is an outlier. For one, the acquittal had a basis in law thanks to the Public Interest Defence. A true act of nullification occurs where the law does not provide an adequate escape route and its provisions are thus arbitrary. The new Policing Bill promises to be such a law. To justify employing nullification against such an Act, there are a myriad of examples where jurors have acquitted in the face of such legislation. Take for instance the case which established the practice, the trial of two Quakers William Penn and William Meed in 1670.

The pair were charged under the Conventicle Act which restricted non-Anglicans to meetings of no more than five people. Meed and Penn were arrested preaching to several hundred.

Despite overwhelming evidence and threats from the judge, the jury refused to convict, believing the law to be morally wrong. The subsequent legal ruling that no juror could be punished merely for their decision still reverberates today and is even commemorated at the Old Bailey. This commemoration strikes me as almost a burlesque given the staunch opposition of the courts and Crown to jurors being permitted to understand the ramifications.

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Bibliography

Primary Sources

Hawles, J., The Englishman’s Right: A Dialogue between a Barrister at Law and a Juryman &c. (London, 1680).

Secondary Sources

Darbyshire, P., ‘The Lamp that Shows that Freedom Lives—Is It Worth the Candle?’ Criminal Law Review (1991), pp. 740–752.

Handler, P., ‘Forgery and the End of the “Bloody Code” in Early Nineteenth-Century England’, Historical Journal, 48/3 (2005), pp. 683–702.

Harling, P., ‘The Law of Libel and the Limits of Repression, 1790–1832’, Historical Journal, 44/1 (2001), pp. 107–134.

McGowen, R., ‘From Pillory to Gallows: The Punishment of Forgery in the Age of the Financial Revolution’, Past and Present, 165 (1999), pp. 107–140.

Wharam, A., The Treason Trials, 1794 (Leicester, 1992).

Notes

[1] Guides for jurors often encouraged them to remain independent of the judge and emphasised that they represented their fellow citizens in court. A powerful and frequently reprinted example was J. Hawles, The Englishman’s Right: A Dialogue between a Barrister at Law and a Juryman &c. (London, 1680).

[2] See P. Darbyshire, ‘The Lamp that Shows that Freedom Lives—Is It Worth the Candle?’ Criminal Law Review (1991), pp. 740–752.

The Problem with Prison – From an Academic Who’s Been There

Gary F. Fisher is an inter-disciplinary teacher and researcher in the liberal arts tradition. He received his doctorate in Classics from the University of Nottingham in 2020 and has published research on a variety of subjects, ranging from the history of education to twentieth-century travel literature. He is currently employed by Lincoln College.

The National Records of Scotland recently released their much-delayed statistics concerning the number of drug-related deaths that occurred during the year of 2019. They revealed a continued rise to a record high, firmly cementing Scotland as the drug deaths capital of Europe. This, combined with the fact that Scotland also boasts the largest prison population per capita in Western Europe, has prompted a slew of articles proposing various types of reform. So far, so familiar. ‘Prisons in this country are a mess’ is one of the few sentiments that appears to be shared on both sides of the political aisle in the UK. It is a sentiment that you can find in both the New Statesman and The Spectator. As the Oxford History of the Prison has noted, it is a sentiment that has persisted for over two centuries, at least since the prison reformer John Howard roundly criticised the condition of eighteenth-century Britain’s criminal justice system in his 1777 The State of Prisons.

That, sadly, is where the unity ends. While Britons can collectively agree that they are not happy with the state of our prisons, we differ wildly in our proposed solutions. More than that, we cannot even agree on precisely what the problem is. On the one hand, there are those who believe prisons have become too soft, that they are limp-wristed holiday camps in which society’s foulest enter through a revolving door to be waited on hand and foot before being released all too quickly upon an unsuspecting public. On the other hand, there are those who view prisons as brutal and draconian institutions, in which cruel and oppressive restrictions on individuals’ human rights serve to entrench and reinforce criminal behaviour to no palpable social benefit. The former will question what punishment or deterrent is offered by giving potentially violent and dangerous criminals free access to entertainment resources and educational courses, luxuries that law-abiding citizens would only be able to access at personal expense. The latter will appeal to examples of ‘humane incarceration’, typically exhibited in Scandinavian countries, and cite the reduced rates of re-offending associated with a more rehabilitative approach. Representatives of these two broad camps regularly spar on the airwaves, yet these clashes rarely serve to advance the dialogue. One can watch two daytime television debates entitled ‘Are we too soft on prisoners?’, one from ten years ago and one from only last year, and see almost the exact same points and rebuttals being made, with no significant innovations in reasoning having being made in the intervening decade. Neither side will engage with, let alone be convinced by, the arguments of their opponents. In fact, it’s questionable whether they even hear each other. 

Courting one of these two sides has become something of a prerequisite for elected office in the UK. Upon his election in 2019, Boris Johnson immediately sought to placate the ‘tough on crime’ crowd by introducing reforms to expand sentence durations and prison numbers. On the other side of the debate, since her election as Scottish First Minister in 2014 Nicola Sturgeon has consistently cultivated favour amongst those who favour a progressive approach to criminal justice by introducing reforms to move the focus of Scottish criminal justice away from punishment and towards rehabilitation. This politicisation of debate has hardly helped matters and, frustrated by the fruitlessness of dialogue on the subject, one criminal defence lawyer recently penned a plea in Scottish Legal News. Iain Smith implored legislators to ‘move beyond tokenistic, meaningless terms like being “hard” or “soft” on crime’, and instead adopt a ‘smart’ approach that focuses on achieving the goal of reducing offending through solutions that occur outside the walls of a prison. As well intentioned as Smith’s plea may be, it seems unlikely to gain traction. 

Highly conscious of this fatalistic public attitude towards the prison system, I first passed through the gates of a category C men’s prison at the beginning of 2020. I should stress that I entered voluntarily, joining the staff as the manager of the prison’s library. It was not long into my career as the librarian that I found the same two broad camps that occupied public dialogue had carried through into the four walls of the prison. There were those staff who pined for the days of ‘proper prison’ and suggested that the modern officer ought to be renamed the ‘custody butler’ for the amount of waiting on their charges that they were increasingly expected to perform. Drawn against them were those who embraced the sector’s increased emphasis on supporting rather than simply securing their residents, and quietly derided those individuals they believed to be insufficiently ‘pro-prisoner’ in the execution of their duties. The incompatibility of these two schools was driven home to me when the library found itself in possession of several copies of a workout guide that could be completed in a cell with no equipment. One of my colleagues was excited by the prospect of distributing this to the men in their cells so that they could continue to exercise while the ongoing pandemic limited their yard time. The other asked ‘why would we want to help them get stronger?’ 

This was more than a simple difference in methods: it was a disagreement as to what the fundamental goal of prisons actually was. To some, their goal was to punish, and anything other than Dickensian horror would represent a betrayal of that goal. To others, their aim was to reform and support, and any interruption to their counselling sessions and wellbeing workshops constituted a frustration of that aim. No wonder these two sides are unreceptive to each other’s arguments: they’re arguing from different pages. They don’t merely disagree on what is wrong with prisons, they disagree on what a ‘correct’ prison would look like.

The reality is that the punitive and rehabilitative approaches, while not necessarily completely mutually exclusive, are at the very least highly counter-productive. It is somewhere between hard and impossible to adopt one without at the very least undermining the other. During my time in the prison library, I witnessed how these two approaches played against each other, with the prisoners caught in the middle. To illuminate this, consider a few examples. Upon being sentenced, a newly convicted offender will be transported to their holding facility in a secure transport vehicle, colloquially known as a ‘sweatbox’. Inside the sweatbox the offender is crammed into a tiny cubicle smaller than an airplane bathroom. So small is this space that taller offenders are unable to properly sit down within them, instead having to half-stand, half-sit for the duration of their indeterminately long journey from court to prison. The transport’s blacked-out windows make the prisoner invisible to the world outside and he is assigned his number and stripped of all personal effects. With this removal of identity completed, the prisoner is then assigned a counsellor and mental health support worker to help him explore the roots of his criminality and come to terms with the very personality that has just been stripped from him. 

A prisoner is encouraged to explore his faith and has regular contact with a large team of professionally-trained chaplains from a variety of religious denominations. But if he indulges too deeply in this faith he will find himself earning the attention of counter-extremism professionals who will monitor him and his reading habits closely and reprimand him or extend his sentence if they deem it appropriate. 

He is given a wide variety of learning opportunities and encouraged to attain qualifications that will hold him in good stead upon his return to the outside world. But he is also barred from accessing the greatest source of learning and information ever created: The World Wide Web. He instead has to make do with the finite materials that the already overstretched library and education services are able to provide and risk a revocation of his learning privileges should a book be returned delayed, damaged or dog-eared.

Of course, those who believe their job is to punish and those who believe their job is to rehabilitate are frustrated with each other. They are not merely pursuing different objectives, they are actively cancelling out each other’s efforts. I am not the first to have noted the incompatibility of these goals. In 2019 James Bourke, the governor of H.M.P. Winchester, was reported in The Daily Telegraph criticising the culture of ‘fantasy’ surrounding what prisons are able to achieve, and how the present attempt to achieve both punishment and rehabilitation has left both goals unfulfilled. Although conditions in prison may be a horrifying deterrent for the ‘nice, white middle-class’ people who legislate for them, Bourke claims their structure and security means they can act as a ‘place of refuge’ for those from more troubled backgrounds. Meanwhile, the idea that a five-week prison sentence is enough time to successfully rehabilitate a convicted criminal after years, if not decades, of accumulated suffering and habitual criminality is derided as a ‘fantasy’. In attempting to both deter criminal behaviour  through harsh punishment and rehabilitate convicted criminals through reformative support, prisons seem doomed to fail both goals.  

This leads back to the condition of public debate about criminal justice reform. Despite the great amounts of ink spilled and spittle launched debating the conditions of our prisons, we never seem to have actually tackled this most fundamental of issues: what do we actually want our prisons to achieve? Do we want to rehabilitate, or do we want to punish? Neither goal is palpably ridiculous, but we can’t have our cake and eat it too. As it stands, the same arguments will continue to be repeated, drug-related deaths will continue to rise, and the one thing that we’ll all be able to agree on will be that we’re not happy with the state of our prisons.

In the BBC’s recent political thriller Roadkill, the Prime Minister, played by Helen McRory, informs Hugh Laurie’s Justice Minister that,  ‘We lock people up. We’re famous for it. We like locking people up. It’s in our character’. For the foreseeable future, that seems unlikely to change. 

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Contemporary Scottish Diplomacy: Some Recent and Distant Parallels

The Scottish government under the SNP has frequently employed diplomacy to help secure its strategic goals. In response to this prevalence, this article explores how contemporary Scottish diplomacy compares to three other related forms of diplomacy, drawn from both the recent and the distant past, in the hope that these might pave the way for increased understanding of the Scottish government’s actions.

Keywords: Diplomacy, Paradiplomacy, International Relations, Scotland, Medieval, Modern, Brexit, Scottish Independence.

Biography: Jamie Smith is a fourth-year PhD History student at the University of Nottingham. His research explores Anglo-Scottish and Anglo-Welsh diplomacy between 927 and 1154, using comparative and interdisciplinary methods.

Scots went to polls this May for the Scottish parliament election, re-electing the pro-independence Scottish National Party (SNP), which first came to power in 2007. Within the SNP manifesto was a section on ‘Scotland in the World’, outlining their foreign policy plans: increased funding for international development, the adoption of a feminist foreign policy, and closer ties to European countries. Diplomacy is nothing new for the Scottish government. On its website you will find a section on international relations, outlining ongoing policies. These include engagement strategies with numerous countries, ministerial visits, a strategic review of Scoto-Irish relations, the promotion of arctic cooperation, running offices abroad, and a commitment to a UN agreement. Yet this enthusiasm for diplomacy seemingly runs contrary to the Scottish parliament’s actual powers. When this devolved parliament was established in 1998, international relations were reserved, remaining under Westminster’s remit. The existence of contemporary Scottish diplomacy has drawn both academic and non-academic comment. Writing for the website UnHerd, for example, Henry Hill has highlighted the tension between Scottish diplomacy and Westminster’s powers. Regardless of whether it is right or wrong, Scottish diplomacy is happening, and therefore we should look to debate its objectives, methods and outcomes, not just its existence. Hardly unusual, the SNP’s diplomatic actions share common features with other case studies, from both the recent and distant past. Here I highlight three such parallels, exploring diplomacy conducted by other sub-state governments, governments in exile, and medieval figures. These comparisons present innovative ways of interpreting Scottish foreign policy, which future scholars can utilise and build on, paving the way for increased understanding of present-day Scottish politics.

Diplomacy conducted by other sub-state governments and entities is one obvious, relevant comparison. The Scottish government is certainly not unique in having foreign policies. Scholars have taken an interest in the diplomacy of towns, regions and other sub-state nations, such as Wales, Macao, US states and Japanese islands, to name but a few examples.[1] Whilst there are many potential routes to explore, the theme of differentiation might prove particularly fruitful. This is where a sub-state administration pursues diplomatic actions that contrast or counter the foreign policy of the state that the sub-state sits within. For example, during the 1960s the Quebecois government was concerned that the Canadian foreign ministry was unrepresentative of French speaking people and overlooking the Francophone world. Consequently, the government of Quebec addressed this deficit, forging its own ties with French speaking countries, notably signing an agreement on education with France which they hoped would help overhaul their own education system.[2] Alternatively, in the 1980s the US government intervened in Nicaragua, supporting forces that were attempting to oust the ruling Sandinista government. To demonstrate opposition to their own government’s foreign policy and to show solidarity with Nicaragua, US cities and towns began twinning with Nicaraguan ones.[3] Today, 32 Nicaraguan municipalities are stilled twinned with a US counterpart.

The Scottish government under the SNP has pursued a similar policy in relation to the European Union (EU), following the Brexit referendum in 2016, which saw the UK collectively vote to leave the EU, but the majority of Scots vote to remain. Whilst the UK government spent the past few years negotiating the state’s exit from the supranational institution, the Scottish government has sought to strength its ties with the EU. For instance, the Scottish 2020-21 budget declares that the government’s goals include ‘ensuring Scotland remains a valued and well-connected nation, despite the UK’s decision to leave the EU’ and to ‘demonstrate our ambition for independent membership of the European Union.’ Several types of diplomatic practices complement these goals, such as meetings between members of the Scottish government and European figures. In 2018 and 2019, Scottish ministers made 80 diplomatic trips to European capitals, with Nicola Sturgeon, the current Scottish first minister, meeting with the EU’s Brexit negotiator, Michel Barnier. They have also used the Scottish government’s international office in Brussels to network with European officials. One of the last events hosted there prior to the COVID-19 pandemic was a Burns Night VIP supper, attended by representatives from Croatia and Germany, ‘as well as MEPs and other high level EU contacts.’ Given the focus on the EU, it is perhaps no coincidence that, with a budget of £2,079,000 a year, the Brussel’s office receives more funding than any of Scotland’s other international offices. Reaching out to the EU, both through rhetoric and diplomatic actions, is intended to smooth an independent Scotland’s accession into the bloc. Whilst the EU was cool towards Scottish membership during the referendum on independence in 2014, the SNP hopes that its overtures will encourage the EU to take a more positive stance on the issue. Regardless, their diplomacy can be seen as another example of sub-state differentiation, which seeks to counter the UK government’s Brexit policy, and work to ensure that Scotland can resume its membership of the EU in the near future.

Another comparison can be made with governments in exile, and the common desire for legitimacy. As noted above, establishing international offices and meeting foreign dignitaries are two tranches of Scottish diplomacy. Including the aforementioned Brussels office, there are eight of these based around the world, often in strategically important locations such as Beijing and Washington. They operate as pseudo-embassies, advocating Scottish interests and strengthening ties with host countries. As for the summits and conferences that Scottish officials have taken part in, these have not only been with representatives of the EU and its member states. A joint heritage initiative involving the Scottish government and five global heritage sites provided Alex Salmond, at the time first minister of Scotland, with the opportunity to meet key Chinese officials and the then Indian prime minister, Manmohan Singh.[4] Likewise, during a trip to North America in February 2019, Nicola Sturgeon met with UN officials as well as the governor of New Jersey.

These tactics echo those employed by governments in exile. One such example of this is the Tibetan Government in Exile, set up in northern India by the Dalai Lama in 1960, with the goal of restoring independence to Tibet following its annexation by China. Like the SNP, it has made diplomacy a central part of its policy plan, establishing pseudo-embassies in eleven cities and organising pseudo-summits between the Dalai Lama and foreign leaders.[5]

Whilst outwardly different, the SNP controlled Scottish government and the Tibetan Government in Exile have similar goals. Both groups seek to assert themselves as the legitimate government of a nation that is currently controlled by another government (although even the most hard-line SNP member would struggle to make the case that Scotland’s position within the UK is exactly comparable to the Chinese occupation of Tibet). Thus, these groups appropriate the symbols of statehood. Since diplomacy is traditionally seen as under the remit of state governments, these groups increase their legitimacy by practicing it.[6] The significance of their diplomatic acts are perhaps best demonstrated by their opponents’ responses. After Prime Minister David Cameron met the Dalai Lama in 2012, the Chinese government condemned the meeting, stating: ‘We ask the British side to take the Chinese side’s solemn stance seriously, stop indulging and supporting “Tibet independence” anti-China forces [sic].’ Similarly, the UK government has attempted to curtail or limit Scottish diplomacy. For example, then foreign secretary Jeremy Hunt stopped the foreign office from providing consular support for Sturgeon’s trips abroad on the grounds she was using them to drum up support for independence. The overlap then between these groups, their goals, and the responses to their diplomatic actions suggest that comparisons between Scottish diplomacy and governments in exile could provide important insight.

Finally, modern Scottish diplomacy warrants comparison with examples of medieval diplomacy. Contrary to more traditional views, scholars argue that diplomacy in the modern world is no longer the sole preserve of the state. Rather, globalisation has caused diplomacy to fragment, with numerous non-state entities forging their own foreign policies. This includes the sub-state governments and governments in exile mentioned above, as well as supranational institutions, such as the EU, and both legitimate and illicit NGOs, such as multinational corporations and terrorist networks. In line with this, scholars such as John Watkins and Jakub Grygiel have called for comparisons between the increasingly “post-state” diplomacy of the modern world and interactions in the pre-state period.[7] Medieval diplomacy was similarly multifaceted, not solely restricted to kings, but involving popes, bishops, magnates, heirs, claimants and exiles, amongst many others.

Whilst there are many possible comparisons, medieval earls are perhaps the most relevant to the modern Scottish government, and particularly the strategy of counterbalancing. Earls were the medieval equivalent of sub-state governments, ruling over territory but subordinate to another sovereign power, in their case a king rather than a state. One such example, who is discussed in my thesis, is Earl Ælfgar of Mercia, a prominent magnate during King Edward the Confessor of England’s reign (1042-66). This was a period of instability within England, involving both intra-noble division, and disputes between the magnates and the king. In 1055, Ælfgar, who at the time was earl of East Anglia, was outlawed by the English court. In response, he went to King Gruffydd ap Llywelyn of Wales, and together they led a joint attack on Hereford. The English court caved into this military pressure, and reinstated Ælfgar as an earl.[8] K. L. Maund suggests Ælfgar had already reached out to Gruffydd prior to 1055.[9] Whether the alliance had been prearranged or not, Ælfgar certainly built on it, marrying his daughter to Gruffydd, an event usually dated to c. 1057.[10] This seemingly put him in a good position. When Ælfgar, now earl of Mercia, was outlawed once more in 1058, we are told he was later reinstated, thanks again to Gruffydd’s military backing.[11]

During a period of intra-England disunity, Earl Ælfgar tied himself to a neighbouring king, securing a military ally and safe haven, to counterbalance the domestic division he faced. The Scottish approach to the EU follows a similar rationale. Independence would politically and economically divide Scotland from the rest of the UK, with the potential for a decline in trade being a major cause for concern. The SNP’s solution is EU membership. Fiona Hyslop, the Scottish Cabinet Secretary for Economy, Fair Work and Culture, responds to concerns about independent Scotland’s trade by pointing to the Republic of Ireland: ‘Through membership of the EU, independent Ireland has dramatically reduced its trade dependence on the UK, diversifying into Europe and in the process its national income per head has overtaken the UK.’ The aforementioned Scottish diplomacy with EU leaders aims to secure Scotland’s future membership of the EU, and thus another market that will counterbalance losing access to the UK one. The main difference between this and Ælfgar’s diplomacy is that he was forced to seek foreign help due to intra-English disputes, whilst the SNP wants a self-imposed division with the UK, which they will need to counterbalance.

Evidently, whether we like it or not, Scottish diplomacy is a prominent feature of the contemporary international landscape. Consequently, I have highlighted here three relevant comparisons which could improve our understanding of it: the diplomacy of other sub-state governments, governments in exile, and medieval individuals, such as earls. Other modern sub-state governments, such as the Quebecois government, are perhaps the most applicable to the Scottish government given their similar constitutional positions. Although, all three approaches could prove useful for scholars of politics and international relations over the next few years. Having been re-elected, Nicola Sturgeon plans to call another independence referendum once the COVID-19 pandemic has passed, meaning that Scottish diplomacy will likely remain an important subject of analysis, both during a future referendum campaign and in the early days of an independent Scotland.

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Bibliography

Primary Sources

‘Anglo-Saxon Chronicle’, in English Historical Documents: c. 1042-1189, ed. by D.C. Douglas and G.W. Greenaway (London, 1953), pp. 107-203.

Orderic Vitalis, The Ecclesiastical History, ed. and trans. by M. Chibnall, 6 vols. (Oxford, 1969-80).

Secondary Sources

Clarke, A., ‘Digital Heritage Diplomacy and the Scottish Ten Initiative’, Future Anterior: Journal of Historic Preservation, History, Theory and Criticism, 13 (2016), pp. 51-64.

Criekemans, D., ‘Regional Sub-State Diplomacy from a Comparative Perspective: Quebec, Scotland, Bavaria, Catalonia, Wallonia and Flanders,’ The Hague Journal of Diplomacy, 5 (2010), pp. 37-54.

Grygiel, J., ‘The Primacy of Premodern History’, Security Studies, 22 (2013), pp. 1-32.

Jakubec, P., ‘Together and Alone in Allied London: Czechoslovak, Norwegian and Polish Governments-in-Exile, 1940-1945’, The International History Review, 42 (2020), pp. 465-84.

Maund, K. L., ‘The Welsh Alliances of Earl Ælfgar of Mercia and his Family in the Mid-Eleventh Century’, in R.A. Brown (ed.) Anglo-Norman Studies XI(Woodbridge, 1988), pp. 181-90.

McConnell, F., Moreau, T., & Dittmer, J, ‘Mimicking State Diplomacy: The Legitimizing Strategy of Unofficial Diplomacies,’ Geoforum, 43 (2012), pp. 804-14.

Paquin, S., ‘Identity Paradiplomacy in Québec,’ Québec Studies, 66 (2018), pp. 3-26.

Tavares, R., Paradiplomacy: Cities and States as Global Players (Oxford, 2016).

Watkins, J., ‘Toward a New Diplomatic History of Medieval and Early Modern Europe’, Journal of Medieval and Early Modern Studies, 38 (2008), pp. 1-14.

Williams, A., ‘Ælfgar, earl of Mercia’, Oxford Dictionary of National Biography, 23 September 2004.

Notes

[1] D. Criekemans, ‘Regional Sub-State Diplomacy from a Comparative Perspective: Quebec, Scotland, Bavaria, Catalonia, Wallonia and Flanders’, The Hague Journal of Diplomacy, 5 (2010), pp. 37-54.

[2] S. Paquin, ‘Identity Paradiplomacy in Québec’, Québec Studies, 66 (2018), pp. 19-21.

[3] R. Tavares, Paradiplomacy: Cities and States as Global Players (Oxford, 2016), pp. 234-35.

[4] A. Clarke, ‘Digital Heritage Diplomacy and the Scottish Ten Initiative’, Future Anterior: Journal of Historic Preservation, History, Theory and Criticism, 13 (2016),  p. 56.

[5] F. McConnell, T. Moreau and J. Dittmer, ‘Mimicking State Diplomacy: The Legitimizing Strategy of Unofficial Diplomacies’, Geoforum, 43 (2012), pp. 806-08.

[6] P. Jakubec, ‘Together and Alone in Allied London: Czechoslovak, Norwegian and Polish Governments-in-Exile, 1940-1945’, The International History Review, 42 (2020), pp. 468.

[7] J. Grygiel, ‘The Primacy of Premodern History’, Security Studies, 22 (2013), p. 2; J. Watkins, ‘Toward a New Diplomatic History of Medieval and Early Modern Europe’, Journal of Medieval and Early Modern Studies, 38 (2008), p. 5.

[8] ‘Anglo-Saxon Chronicle’ (Henceforth ‘ASC’), in English Historical Documents: c. 1042-1189, ed. by D. C. Douglas and G. W. Greenaway (London, 1953) (Henceforth EHD II), pp. 132-34.

[9] K. L. Maund, ‘The Welsh Alliances of Earl Ælfgar of Mercia and his Family in the Mid-Eleventh Century’, in R. Allen Brown (ed.) Anglo-Norman Studies XI (Woodbridge, 1988), p. 185.

[10] Orderic Vitalis, The Ecclesiastical History, ed. and trans. by M. Chibnall, 6 vols. (Oxford, 1969-80), 2, pp. 138-39: A. Williams, ‘Ælfgar, earl of Mercia’, Oxford Dictionary of National Biography, 23 September 2004: https://doi-org.ezproxy.nottingham.ac.uk/10.1093/ref:odnb/178. Accessed 13 April 2021.

[11] ‘ASC’, EHD II, p. 136.

Value and Values

Dr David Civil is a Research Fellow at the Jubilee Centre in the School of Education at the University of Birmingham. His PhD research explored the concept of meritocracy in post-war Britain’s intellectual politics.

Since their inauguration in 1948, the BBC Reith Lectures have provided historians with an annual window into the intellectual preoccupations of the post-war world. From the impact of quantum and atomic theory in 1953 with Robert Oppenheimer’s Science and Common Understanding to questions of racial, gender and national identity in 2016 with Kwame Anthony Appiah’s Mistaken Identities. A potential Reith lecturer, searching for a topic to explain the contemporary moment would be spoilt for choice: the Covid-19 pandemic, the climate crisis, rampant economic inequality and social injustice, the rise of populism, big tech, the existential challenge to democracy etc. The list, it seems, is endless. On the surface then, the selection of Mark Carney, the Canadian central banker and former Governor of the Bank of England, feels like an odd choice. Carney has sat at the apex of a financial system assailed on all sides and held responsible, by a wide variety of politicians, commentators as well as large swathes of the public, for creating or exacerbating many of the problems listed above. The title of his series however, ‘How We Get What We Value’, unites the vast majority of these crises and, in doing so, like all good Reith Lectures, touches on one of the fundamental issues of the post-Cold War age.

At the heart of Carney’s thesis is the idea that financial value has trumped human values as developed nations morph from market economies into societies where the market rules. The free market, Carney claims, has become the organising framework not just for economies, but for broader human relations as its reach extends further into civic spaces and family life. Across a variety of sectors ‘citizens’ have been replaced by ‘service users’, with perilous consequences for our civic sphere. Whether manifested in concerns about the outsourcing of public services to private providers or the growing privatisation of public spaces, the so-called ‘invisible hand’ has come to exercise a visible and forceful grip.

Within these market societies the idea of subjective value is now hegemonic. Whereas in the past thinkers as diverse as Aristotle, Karl Marx and Adam Smith felt the value of a product derived from how that product was produced, neo-classicist economists in the early twentieth century shifted the axis of value theory away from labour and towards the consumer. A product or service was no longer deemed valuable because of the costs that had gone into making or providing it, instead value was to be decided by whether individual consumers were willing to pay for it. Value was no longer thought to lie in the sweat of the labourer but in the eye of the beholder. In many ways this was a democratic shift: value was to accrue to those who could satisfy millions of individual preferences as reflected in the free market place.

It was not, however, without consequences and Carney identifies a number of risks associated with this rise of subjective value. For example, individuals are not always the rational decision-makers assumed by neo-classicist economic theory and often value the present more than the future. This ‘tragedy of the horizon’ has made solving issues like climate change more difficult. The catastrophic costs of a global issue like the climate crisis are felt beyond the traditional time horizons of most actors – imposing a cost on future generations that the current generation have no direct incentive to fix. As Carney has noted elsewhere, the ‘horizon for monetary policy extends out to two or three years.’ For ‘financial stability it is a bit longer, but typically only to the outer boundaries of the credit cycle – about a decade.’ In others words, once climate change becomes a defining issue for financial stability, it may already be too late. More worryingly, Carney claims, is the ‘drift from moral to market sentiments.’ This ‘flattening of values’ corrodes those which have tended to exist outside of the market (e.g. civic virtues) and in the process has undercut the social foundations upon which any economic activity fundamentally relies. In short, anything not priced, not deemed financially valuable, in our society is not valued. Nowhere is this fact more starkly visible than in the essential work of the care sector where, because the value of care is difficult to measure, pay remains low and conditions poor. Care workers, therefore, remain the victim of a damaging tautological spiral: because their labour has been historically undervalued they are not paid a lot and because they are not paid a lot their labour is not seen as valuable.

The message and the messenger of the 2020 Reith Lectures is emblematic of the growing intellectual consensus in favour of a ‘social reset’. Whether embodied in Prime Minister Boris Johnson’s rather vague slogan of ‘Build Back Better’, the World Economic Forum’s ‘Great Reset’ or the progressive Left’s ‘Green New Deal’, the desire for a fundamental reappraisal of the global economy is shared, admittedly to differing degrees and to varying ends, across the ideological spectrum. While Carney’s lectures serve as a symbol of this particular conjuncture, his concerns are nothing new. The idea of a parasitic free market is a common theme of communist and socialist texts, while the more Carney-like warnings are found in a variety of liberal and social democratic positions. Even more surprising, perhaps, is to find traces of Carney’s thesis amongst some of the neoliberal thinkers whose intellectual output in the early-to-mid twentieth century did so much to economically and philosophically support the rise of the market in the 1980s.

For example, Friedrich von Hayek, the Austrian economist, philosopher and author of the influential tract The Road to Serfdom, argued in 1960 that

A society in which it was generally presumed that a high income was proof of merit and a low income of the lack of it, in which it was universally believed that position and remuneration corresponded to merit, in which there was no other road to success than the approval of one’s conduct by the majority of one’s fellows, would probably be much more unbearable to the unsuccessful ones than one in which it was frankly recognised that there was no necessary connection between merit and success.[1]

For Hayek, in any free society income should reflect the value of an individual’s goods and services and have nothing to do with merit, virtue or the moral importance of their contribution. In a similar vein Frank Knight, the American anti-New Deal economist and later Hayek’s teacher, argued in the early 1920s that an individual’s income or market value should not be associated with their social contribution.[2] Serving demand in the market is simply a matter of satisfying the wide range of tastes and desires people happen to have at that particular moment in time. The ethical significance of satisfying them, however, depends on their moral worth.

Evaluating this worth involves making contested moral judgements which go beyond the discipline of economics. The philosopher Michael Sandel illuminates this distinction by considering the character of Walter White, the teacher, father and drug-dealing kingpin of the Emmy-award winning drama Breaking Bad. Most viewers would agree that White’s contribution as a teacher far exceeds that of his contribution as a drug dealer. ‘Even if meth were legal’, Sandel argues, ‘a talented chemist might still make more money producing meth than teaching students.’ But this does not mean that a ‘meth dealer’s contribution is more valuable than a teacher’s.’[3] In a similar vein, few would have argued that Captain Sir Tom Moore’s fundraising efforts, reaching £33 million in total, would have represented less of a contribution had he only met his initial target of £1000. In this sense the value of his effort was recognised in the civic or moral character of his actions rather than because of their monetary value.

Context is important here. Hayek, for example, had little influence in 1960, the start of a decade where technocratic desires to rationally plan economic activity reached fever pitch and the free market remained a marginalised concept. Hayek’s primary concern in distinguishing between merit and value was to secure the legitimacy of free market inequalities. This legitimacy, he claimed, would be tarnished if those at the top were not only rich but also considered morally superior. As Carney’s lecture makes clear, however, these warnings went unheeded as price and value increasingly became conflated. Those individuals with high incomes also came to possess greater status, power and, perhaps most damagingly, moral superiority. It does not therefore require much of an intellectual leap to consider how Hayek’s concerns have played out in the last decade of political destabilisation. Amidst the Covid-19 pandemic, however, it is clear that these market generated inequalities are suffering a legitimation crisis. In this sense Carney’s intervention has fired the starting pistol on what Mariana Mazzucato has described as a great contested debate about value.[4]

It is clear that this debate can not be overly reliant on the discipline of economics, a discipline where the moral questions highlighted by Knight have been subsumed beneath technical exercises in applied rationality. The market appealed to politicians and policymakers precisely because it eschewed these contested judgements, pushing questions of ‘who gets what?’ onto an abstract, impersonal force. There was no longer a contested debate about the morally right or wrong course of action but a mechanistic discussion about the economic costs or benefits of a particular policy choice. In its place the debate will be heated. As David Robinson has outlined in this journal, in its worst form it will descend into an irrelevant culture war. Yet it appears that a tentative consensus is forming as those across the political spectrum recognise that key workers deserve pay, status and conditions beyond those assigned by the market.

A great debate about values entails radical consequences for the shape of higher education in Britain, a sector which has too often, in the words of David Manning, disengaged ‘from the virtues of scholarship to perform research for market value.’ This is particularly true of disciplines like the Humanities where value is difficult to measure and demonstrate. Shifting away from crude metrics, however, should not, be used as an opportunity to completely dismantle mechanisms designed to deliver accountability and ensure fairness. Instead it represents an opportunity for all of us in the Humanities to illuminate the issues, challenge long-standing assumptions and help to construct a new social contract which places human, rather than merely financial, values firmly at the centre.

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Bibliography

Hayek, F. A.,The Constitution of Liberty (London, 1960).

Knight, F. H.,  The Ethics of Competition (New Brunswick, NJ., [1923] 1997).

Mazzucato, M., The Value of Everything: Making and Taking in the Global Economy (London, 2017).

Sandel, M. J., The Tyranny of Merit: What’s Become of the Common Good? (London, 2020).

Notes

[1] F.A. Hayek, The Constitution of Liberty (London, 1960), p. 98.

[2] F.H. Knight, The Ethics of Competition (New Brunswick, NJ., [1923] 1997), p. 46.

[3] M.J. Sandel, The Tyranny of Merit: What’s Become of the Common Good? (London, 2020), pp. 138-39.

[4] M. Mazzucato, The Value of Everything: Making and Taking in the Global Economy (London, 2017)