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Enemies of the People?: How Judges Shape Society
This book offers readers a fascinating insight into actual cases that the UK courts grapple with on a daily basis. Drawing on the cases that are changing the way we think about issues—from discrimination and family life to religion and freedom of expression—this book reveals the dilemmas that exist at the heart of the law and our society.
- GenresLawNonfiction
176 pages, Paperback
Published May 14, 2020
10 people are currently reading
117 people want to read
About the author
Joshua Rozenberg
8 books7 followersJoshua Rozenberg QC (hon) is Britain's best-known commentator on the law. He is the only full-time journalist to have been appointed as Queen's Counsel honoris causa.
He is an honorary Master of the Bench (bencher) of Gray's Inn and a non-executive board member of the Law Commission.
After taking a law degree at Oxford he trained as a solicitor, qualifying in 1976. He holds four honorary doctorates in law.
For more than a decade he has written a twice-monthly column for the Law Society Gazette. He now writes a monthly column for The Critic magazine.
His latest book, Enemies of the People?, looks at how judges make law and asks whether they can maintain public confidence while balancing conflicting interests.
He is an honorary Master of the Bench (bencher) of Gray's Inn and a non-executive board member of the Law Commission.
After taking a law degree at Oxford he trained as a solicitor, qualifying in 1976. He holds four honorary doctorates in law.
For more than a decade he has written a twice-monthly column for the Law Society Gazette. He now writes a monthly column for The Critic magazine.
His latest book, Enemies of the People?, looks at how judges make law and asks whether they can maintain public confidence while balancing conflicting interests.
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Displaying 1 - 11 of 11 reviews
April 8, 2020
This book explains, with lucidity and accessibility, why in a world in lock-down we are so fortunate in our senior judiciary, who have grappled so successfully with issues which threaten to overwhelm our society. The comparison with judicial attitudes from half a century ago when this reader started in the law is embarrassingly pointed. It should be on the reading list of every law student; the would-be informed non-lawyer; and it is de rigueur for those who aspire to pupillage at the English Bar!
January 11, 2021
The coronavirus pandemic has over the last year certainly run it close but it is still arguably the case that the UK's battle to come to terms with what the Brexit referendum of 2016 means for the UK has been the most significant constitutional/legal challenge of the UK government and Parliament have faced in the twenty-first century.
The result of the 2016 referendum, in which 52% of voters opted expressed the view that the UK should leave the European Union, was a surprise - at least it was to me. It was of course Parliament, not the Government, who had incorporated EU law into domestic law by passing section 3 of the European Communities Act 1972.
The widespread assumption at the time was that the UK would trigger Article 50 - the mechanism by a State resigns its membership - was expected to follow shortly after that vote but in the event, the then PM (May) did not do so but she did make clear that she considered this was something the Government could do of its own volition and did not require Parliament to authorise that course of action.
It was this belief that was the basis for the pivotal Miller case that was decided by the Supreme Court in 2017. However, before the decision of the Supreme Court the matter had been subject to deliberation by the High Court and it was in the aftermath of that decision - which found the UK government did not have the power it sought to reserve to itself under the royal prerogative - that the basis of of the titular "Enemies of the People". National Media, and especially the the Daily Mail, used the event to launch an attack on the independence of the judiciary and, in so doing, cast the decision as a decidedly political anti-Brexit decision in which the judiciary purposely sought to obstruct the will of the people as seen in the referendum result. For most legal commentators that vitriolic response did not just belie the legal reasoning of the judgment (either at the High Court or in the Supreme Court) but also an attack upon a core constitutional principle: the Rule of Law.
In what is the centrepiece of Enemies of the People? Rozenberg explains and interprets the decision in Miller and the later related decision on proroguing Parliament in (2019) and shows that the decision far from being a radical departure is quite a conservative espousal of a modern Diceyan constitutionalism that places the sovereignty of parliament (as distinct sovereignty of government) at the centre of its decision.
In my view Rozenberg is certainly right in respect to the principle 2017 decision. I think he is right in respect to the proroguing of Parliament case as well but it is slightly more arguable. Written in an accessible but rigorous way Enemies of the People? offers an excellent introduction through the lens of these two cases of the relationship between the judiciary and the other pillars of the State, namely the executive (government) and legislature (Parliament).
As an aside, I think there has some tentative movement towards an entrenched constitutionalism focused on the rule of law and fundamental rights to the detriment of Parliamentary Sovereignty, as evidenced (among other examples) in the obiter comments of of Lord Hope in AG v Jackson [2015] that the court could fail to enforce Primary Legislation. Such a movement, while not directly relevant to the cases in issue, does potentially detract from the thrust of Rozenberg's apology for the current status quo.
The book is not just a survey of how the courts assess constitutional questions, however, but also addresses the question and oft repeated criticism of that the judicary is composed of a cadre of 'activist judges' advancing a particular social agenda. This is a criticism one sees with some regularity from the Tory benches in particular but also in the work of the Judicial Power project. By a survey from the key areas of law (e.g., Human Rights, Family Law, Access to Justice, Crime, Press freedom) Rozenberg directly addresses, in the main successfully, his central thesis that the Judiciary is a conservative institution and that criticisms it is a activist reforming institution are false, and that where there are common law developments these are cautious and tend to reflect societal trends rather than promote them.
Overall, I thought this was an excellent book. It will I am sure (rightly) become a fixture on many undergraduate law reading lists but, more than that, it deserves to be read more widely as a very good primer on both how courts reach their decisions and the place the Rule of Law has in the British Constitution.
The result of the 2016 referendum, in which 52% of voters opted expressed the view that the UK should leave the European Union, was a surprise - at least it was to me. It was of course Parliament, not the Government, who had incorporated EU law into domestic law by passing section 3 of the European Communities Act 1972.
The widespread assumption at the time was that the UK would trigger Article 50 - the mechanism by a State resigns its membership - was expected to follow shortly after that vote but in the event, the then PM (May) did not do so but she did make clear that she considered this was something the Government could do of its own volition and did not require Parliament to authorise that course of action.
It was this belief that was the basis for the pivotal Miller case that was decided by the Supreme Court in 2017. However, before the decision of the Supreme Court the matter had been subject to deliberation by the High Court and it was in the aftermath of that decision - which found the UK government did not have the power it sought to reserve to itself under the royal prerogative - that the basis of of the titular "Enemies of the People". National Media, and especially the the Daily Mail, used the event to launch an attack on the independence of the judiciary and, in so doing, cast the decision as a decidedly political anti-Brexit decision in which the judiciary purposely sought to obstruct the will of the people as seen in the referendum result. For most legal commentators that vitriolic response did not just belie the legal reasoning of the judgment (either at the High Court or in the Supreme Court) but also an attack upon a core constitutional principle: the Rule of Law.
In what is the centrepiece of Enemies of the People? Rozenberg explains and interprets the decision in Miller and the later related decision on proroguing Parliament in (2019) and shows that the decision far from being a radical departure is quite a conservative espousal of a modern Diceyan constitutionalism that places the sovereignty of parliament (as distinct sovereignty of government) at the centre of its decision.
In my view Rozenberg is certainly right in respect to the principle 2017 decision. I think he is right in respect to the proroguing of Parliament case as well but it is slightly more arguable. Written in an accessible but rigorous way Enemies of the People? offers an excellent introduction through the lens of these two cases of the relationship between the judiciary and the other pillars of the State, namely the executive (government) and legislature (Parliament).
As an aside, I think there has some tentative movement towards an entrenched constitutionalism focused on the rule of law and fundamental rights to the detriment of Parliamentary Sovereignty, as evidenced (among other examples) in the obiter comments of of Lord Hope in AG v Jackson [2015] that the court could fail to enforce Primary Legislation. Such a movement, while not directly relevant to the cases in issue, does potentially detract from the thrust of Rozenberg's apology for the current status quo.
The book is not just a survey of how the courts assess constitutional questions, however, but also addresses the question and oft repeated criticism of that the judicary is composed of a cadre of 'activist judges' advancing a particular social agenda. This is a criticism one sees with some regularity from the Tory benches in particular but also in the work of the Judicial Power project. By a survey from the key areas of law (e.g., Human Rights, Family Law, Access to Justice, Crime, Press freedom) Rozenberg directly addresses, in the main successfully, his central thesis that the Judiciary is a conservative institution and that criticisms it is a activist reforming institution are false, and that where there are common law developments these are cautious and tend to reflect societal trends rather than promote them.
Overall, I thought this was an excellent book. It will I am sure (rightly) become a fixture on many undergraduate law reading lists but, more than that, it deserves to be read more widely as a very good primer on both how courts reach their decisions and the place the Rule of Law has in the British Constitution.
January 26, 2025
Re-reading (last read around 2020-1). About judicial overreach. Goes through many cases, each chapter focussing on a different area of law/type of case.
*Takeaways:
-> Sumption 2019 Reith lectures claim: the courts had "edged towards a concept of fundamental law trumping even parliamentary legislation"
-> Denning's 'purposive' approach labelled "palm-tree justice" by Stephen Sedley (judge/professor) [strange metaphor...]
-> 1966 'practice direction': move from the "legal literalism" & "narrow formalism" of Viscount Simonds to recognising judges' discretion in making law; "too rigid adherence to precedent may lead to injusitce in a particular case and also unduly restrict the proper development of the law"
-> section 3 of the HRA 1998 gives judges the power to 'read down' (i.e. interpret) legislation so that it complies with the ECHR [option not obligation...]
-> Judicial review applications (generally) heard in the administrative court (specialist court within the KBD of the HC)
-> Judges should focus on procedure rather than the merits of the decisions to avoid overstepping into the political sphere (23)
-> Wednesbury principles: decision makers must act reasonabley and fairly (19)
-> Judicial review of John Worboys's (black cab rapist) parole board (59-64)
-> 1990 development of the common law: "idea that a wife by marriage consents in advance [...] no longer acceptable"
-> The ECtHR is run by the Council of Europe. The Council has nothing to do with the EU (80)
-> Cabin boy cannibalism: necessity is not a defence to murder (91)
-> Sumption on woman who helped her relative travel to Dignitas: "I don't think there is necessarily a moral obligation to obey the law" (!)
-> Law of privacy developed by the 2004 Naomi Campbell SC case (139); previously, was the law of confidence
-> Upper Tribunal: 'a judicial body with the same status as the High Court' (144)
*Phrases
-> "a situation where there is no ideal solution but only more or less unsatisfactory ones" - Sumption (110)
*Takeaways:
-> Sumption 2019 Reith lectures claim: the courts had "edged towards a concept of fundamental law trumping even parliamentary legislation"
-> Denning's 'purposive' approach labelled "palm-tree justice" by Stephen Sedley (judge/professor) [strange metaphor...]
-> 1966 'practice direction': move from the "legal literalism" & "narrow formalism" of Viscount Simonds to recognising judges' discretion in making law; "too rigid adherence to precedent may lead to injusitce in a particular case and also unduly restrict the proper development of the law"
-> section 3 of the HRA 1998 gives judges the power to 'read down' (i.e. interpret) legislation so that it complies with the ECHR [option not obligation...]
-> Judicial review applications (generally) heard in the administrative court (specialist court within the KBD of the HC)
-> Judges should focus on procedure rather than the merits of the decisions to avoid overstepping into the political sphere (23)
-> Wednesbury principles: decision makers must act reasonabley and fairly (19)
-> Judicial review of John Worboys's (black cab rapist) parole board (59-64)
-> 1990 development of the common law: "idea that a wife by marriage consents in advance [...] no longer acceptable"
-> The ECtHR is run by the Council of Europe. The Council has nothing to do with the EU (80)
-> Cabin boy cannibalism: necessity is not a defence to murder (91)
-> Sumption on woman who helped her relative travel to Dignitas: "I don't think there is necessarily a moral obligation to obey the law" (!)
-> Law of privacy developed by the 2004 Naomi Campbell SC case (139); previously, was the law of confidence
-> Upper Tribunal: 'a judicial body with the same status as the High Court' (144)
*Phrases
-> "a situation where there is no ideal solution but only more or less unsatisfactory ones" - Sumption (110)
April 7, 2021
In the context of various politicians and news outlets complaining about "activist lawyers", this book explores the extent to which courts are making judgements that augment laws made by parliament. The general conclusion appears to be that it is very rare for courts to pass a judgement that would contradict any statute act passed by parliament.
There are cases where the court states that a new law is required (in particular in the area of assisted death) but the court does not attempt to set any precedent in such a contentious area. In such cases, the courts expect parliament to pass new laws or modify existing laws although that doesn't always happen.
In other cases where the law is unclear or contains gaps the court will pass a judgement that effectively extends the reach of the law. This has mostly happened in human rights cases. In some cases, the court may decide that common law established long ago does not match current day thinking and consequently set a precedent that becomes the new law, for example in the case of marital rape.
There are also cases where a court may declare that a law is "incompatible" with human rights law, effectively instructing parliament to amend existing law.
I have no legal training so I found some parts of the book quite dense with closely argued legal points. Nevertheless, I enjoyed reading it and understood sufficient to appreciate the general thrust which was that courts are doing the best job that they can to uphold existing law and only reluctantly extend the legal framework or set precedents.
The argument is well presented in the light of various recent cases, most of which were high profile.
There are cases where the court states that a new law is required (in particular in the area of assisted death) but the court does not attempt to set any precedent in such a contentious area. In such cases, the courts expect parliament to pass new laws or modify existing laws although that doesn't always happen.
In other cases where the law is unclear or contains gaps the court will pass a judgement that effectively extends the reach of the law. This has mostly happened in human rights cases. In some cases, the court may decide that common law established long ago does not match current day thinking and consequently set a precedent that becomes the new law, for example in the case of marital rape.
There are also cases where a court may declare that a law is "incompatible" with human rights law, effectively instructing parliament to amend existing law.
I have no legal training so I found some parts of the book quite dense with closely argued legal points. Nevertheless, I enjoyed reading it and understood sufficient to appreciate the general thrust which was that courts are doing the best job that they can to uphold existing law and only reluctantly extend the legal framework or set precedents.
The argument is well presented in the light of various recent cases, most of which were high profile.
April 9, 2020
I loved it. Brilliant. Multi-layered, something for everyone at every level, and a particular pleasure to read at such a dark time. Still lol at the ref to "the Eadie way out". It deserves to be both the primer and advanced manual bestseller on judicial power that Bingham's book has become on the rule of law.
Ian Caplin (Former British lawyer and legal commentator)
Ian Caplin (Former British lawyer and legal commentator)
July 27, 2020
A compelling insight into the fine balance between on one side the pragmatic and incremental development of the law and, on the other hand, the careful and justified deference to parliament.
Great read for those interested in the profoundly important constitutional question contained in the title of the book.
Great read for those interested in the profoundly important constitutional question contained in the title of the book.
February 16, 2023
Brilliant read - Joshua Rozenberg is a fantastic author who writes in a very accessible manner, clearly breaking down concepts, explanations, and occasionally his own opinion. Covers a wide range of areas of law, whilst coming to a comprehensive conclusion, and provides a wide analysis from various perspectives.
November 27, 2021
A highly accessible book on the important role the UK's judiciary plays.
July 23, 2022
It was alright I wish it got to the point earlier though. Chapters 8 and 9 could have been much more concise.
January 5, 2025
An absolutely brilliant book. It gives a great run through of some of the best and most interesting decisions by members of the judiciary and their impact on our daily lives - often without us even realising it - but also the lesser known decisions. And Joshua Rozenberg writes fantastically, asking questions of the reader throughout.
March 18, 2021
Don’t read Law, read this instead. Much more humorous, covers the same cases and quite a bit cheaper too. Highly recommended, a really enjoyable read.
Displaying 1 - 11 of 11 reviews