Over the summer, one of the articles I read as an introduction to the Law of Tort was about Aristotle’s creation of corrective justice. In my opinion, Aristotle gets far too much credit for coming up with the idea that a wrong can be compensated to equality through the justice system.
This is just one of the many thoughts that have popped into my head while endlessly reading for my degree. Don’t get me wrong, I love studying law and it has a beauty in the way that something so complex makes a lot of sense; other times it never makes sense.
I engaged with the case R v McNally [2013] EWCA Crim 1051 in my first year while studying criminal law. Possibly, this was one of the most controversial cases of the year, even more so than the famous R v Brown [1993] UKHL 19 which is about homosexual sadomasochists. McNally was a teenager who identified as man, but was biologically a woman and had not undergone any sexual reassignment surgery. McNally entered a relationship with a girl of a similar age, but did not tell her that he was transsexual. They entered into sexual relations, after which it became known that McNally was biologically a woman. Eventually, McNally was accused of rape due to the fact he had ‘deceived’ the girl as to the nature of his gender. The judges concluded that this was enough to evidence to decide that consent could not have been present.
“At his best, man is the noblest of all animals; separated from law and justice he is the worst.” – Aristotle
Now readers may believe that this is an abhorrent thing that McNally did. He lied and denied someone their autonomy to make a decision about who they sleep with. However, to categorise person who is transsexual, as someone who is perpetually deceiving those they are around, is dangerous. It is offensive and degrading to the Transsexual community so portray them as liars when they haven’t had any gender reassignment surgery. Gender dysphoria is state of mind, physical surgery is a way of treating that mindset to ensure those people can live happier lives.
In contrast to this injustice, law can be implicitly refined. Another module I studied last year was Public Law which encompasses the realm of judicial review. Judges have an incredibly difficult job to strike the balance between keeping the government from breaching human rights and stepping outside their jurisdiction by rewriting legislation. However, a reason for striking down an action made by the executive branch of government is by proving it is ‘Wednesbury unreasonable’. You can find this term in any public law textbook after 1948 (although you may want to look 1970s onward, as judicial review wasn’t really a thing until then). It basically means that the judges can find actions unlawful if they make absolutely no sense. There is a sliding scale that means it is difficult to know when something is Wednesbury unreasonable, but it’s okay. It comforts me to know that the common law would never let the Government do something so ridiculous and get away with it.
Now, this is purely me geeking out over how studying law is probably the most interesting thing I could do with my time. In the future. I will be making more technical posts about my studies that will get you forming opinions about whether I’m right or completely wrong. However, I hope this blog helps people engage with law at some point in their life. With the climate of Brexit and the government trying to rewrite over 46 years of law to their taste, no one should be so ignorant.
So, in the spirit of any law degree. Just keep reading.
Doing Hard Time - The Life of A Law Student 