Turning on Turtles

Stephen Sedley

  • Fundamental Values edited by Kim Economides et al
    Hart, 359 pp, £40.00, December 2000, ISBN 1 84113 118 0

About ten years ago, bans were imposed by two French municipalities on local funfairs where, for a few francs, revellers had been permitted to shoot a dwarf from a cannon. The official reason was the maintenance of public order, but the regional courts which initially overturned the bans pointed out that the shows were entirely orderly. The real issue was human dignity; but the people whose dignity was being compromised were the dwarfs who made their living from the spectacle and were among the chief opponents of the ban. The Conseil d’Etat, the final appeal court, restored the prohibitions, deciding that public order included public morals and that these were violated by assaults on human dignity even in cases where the victim was willing.

Once, before the onset of middle-class morality, the English courts had taken a similar line to the French regional courts. Chief Justice Holt, the first great judge of the Bill of Rights era, throwing out the indictment against a bookseller named Read for publishing a dirty book called The 15 Plagues of a Maidenhead, said: ‘This is for printing bawdy stuff that reflects on no person . . . If there is no remedy in the spiritual court, it does not follow there must be a remedy here. I wish there were, but we cannot make law . . . As to the case of Sir Charles Sedley’ – fined in 1663 for an offence against public morals – ‘there was something more in that case than shewing his naked body in the balcony; for the case was quod vi et armis he pissed down upon the people’s heads.’

That is the trouble with fundamental values. Whichever one you take with you as a guide, another one is waiting round the corner with a sock full of sand. The fundamental value of personal autonomy finds itself ambushed by the fundamental value of public decency, and the contest is made no clearer when both claim their derivation from the fundamental supervalue of human dignity. And why should human dignity be the bedrock? John Alder’s essay on environmental values in this volume cites a recent American article entitled ‘Should trees have standing?’ Alder examines the heterogeneity of the foundational arguments for environmental protection: do we support it because conservation will assist human survival, or because we like trees, or because we accept that other life-forms have as full a right to life as we have? Whichever it is to be, a still deeper foundation than human dignity has to be found; and finding it is in the end an act of faith, secular or otherwise.

I don’t mean this at all in a negative sense. Societies, or segments of societies, reach temporary spoken or unspoken agreements on what matters most to them, and for as long as the agreement lasts it is possible at least to orient dispute-resolution in relation to these reference points. Calling them fundamental values clothes them with a specious durability and universality which a moment’s historical reflection will dispel; but it also performs the legitimate task of seeking to limit for the time being what a society’s institutions can decently do. Even so, the point is well made by Alder that lawyers’ talk about striking the balance between competing interests is largely misplaced in a field (environmental law is only one example) in which success for either side inexorably involves damaging knock-on effects – for instance, the effect on the urban poor of planning decisions which protect beauty spots from pollution by concentrating it in factory belts, or the legislative ethic which sets out, as he puts it, ‘to minimise the suffering of animals but without too much inconvenience to ourselves’.

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