RTE Latham and Change in the Ultimate Rules of a Legal System

Abstract

This article was presented and is written in honour of Professor Richard Kay and in great admiration for the body of work that he has so impressively produced over his career. That body of work displays great breadth and depth, and it travels through time to make sure that we do not forget the ideas and legacy of constitutional writers who came before us. I present here another life that in my view illustrates many of these same themes. It is a life that was cut short in active service in World War II at the young age of 34, at the outset of a career that had already displayed a brilliant command of constitutional law and theory. This article and the presentation which preceded it take their inspiration from one of Richard Kay’s more recent articles, a piece of legal intellectual history, in which he explores the influence of HWR Wade’s famous 1955 Cambridge Law Journal article, “The Basis of Legal Sovereignty”. This article discusses the life, work and legacy of RTE Latham. I have written before on Latham’s life and work. In this article, I focus on Latham’s legacy, a topic that I unfortunately gave short shrift to in my earlier study. Here are some of the tools that Latham set out in his work: • Dicey’s version of continuing sovereignty is asserted rather than grounded in judicial authority. (Two cases decided in the 1930s – Vauxall Estates and Ellen Street – would come to be viewed as authority for continuing sovereignty, although they represent at best very weak obiter dicta.) • Stating that Parliament is sovereign says nothing about whether that Parliament can or cannot limit itself. (This is what HLA Hart later referred to as the equally credible “self-embracing” and “continuing” sovereignty.) • Despite the undoubted importance of an ultimate rule or Grundnorm such as that regarding Parliament’s sovereignty, there can be uncertainty in the rule or Grundnorm (as Hart discussed in Chapter 6 of the Concept of Law under the heading “Uncertainty in the Rule of Recognition”). • While it is natural for constitutional scholars and ardent observers of the constitution to speculate as to how the uncertainties just referred to should be resolved, such questions are not resolved until they are presented before the courts for authoritative resolution. (Hart referred to the tendency to provide clear answers in place of uncertainties as a common “formalist error”.) • What Hart was to say regarding uncertainty in the rule of recognition, Latham had already said with respect to its functional Kelsenian equivalent, the Grundnorm: “Clearly in such a system (the English system of case law) there is no certainty that the most fundamental principle, the Grundnorm, will be reached and declared by the courts. It may be that no case will arise which necessitates resort to the ultimate rule. Yet at any time such a case may arise …”. • If one were to ask, then, according to which factors the Grundnorm shifted or became more determinate, Latham’s apparent answer would be what we would later recognize as Dworkinian on the one hand (the importance of the basic beliefs of judges charged with interpreting the law) and context-based on the other. Latham’s context-based considerations were both legal and non-legal. In terms of legal context, Latham noted (as Hart would later regarding the pathology of a legal system) that local courts sometimes adopt different legal takes than UK courts regarding the same legal event: enactment of independence legislation for instance. Whatever one’s view of the quality of the local courts’ reasoning it is hard to deny its legal effect, especially where the legal system in question is now independent of the former metropole. In terms of factual context, Latham acknowledged the force of revolutionary realities, as Kelsen himself had done. To my mind, this is already a highly impressive list of insights. Despite their “brilliance”, to use the noun (or the adjective “brilliant”) most favoured by later readers of Latham, I cannot help but feel that, with a few nudges provided by later theoretical inquiry, Latham’s original set of assumptions could have been taken creatively and helpfully further. I set out a few suggestions here.