Picture credit: Panos Karapanagiotis
Artillery Row

Let’s get teleological

Another way to look at morality and law

Teleology is the process of explaining things in terms of the purpose they serve rather than of the cause by which they arise. In classical philosophy, teleology is the belief that every object and every act is directed towards some ultimate higher purpose. It was Aristotle who gave us the word “Telos” to describe an ultimate aim or raison d’être.  

For most of us, focusing on intent is intuitive. A terrorist who attempts to detonate a faulty bomb is still a terrorist. A soldier who risks his life to rescue a comrade only to discover they are already dead is still heroic.

In the current environment, teleology is our greatest bulwark against the nihilism of “cancel culture”. For years, most people dismissed cancel culture as attention-seeking nonsense. But it is now dawning on us that separating intent from culpability is both destructive and cruel. Cancel culture involves defining people by their failures and ignoring their achievements.

Teleology, by contrast, allows us to appreciate everyone’s best efforts. Edward Colston can be remembered for his immense philanthropic and architectural legacy. Eric Gill can be appreciated for his craftsmanship and creativity. Ironically, many of cancel cultures’ fiercest proponents are neo-Marxists. Marx was a racist. His personal conduct was also pretty shocking. Yet many on the left still lionise him rather than cancel him. To do so is to undermine cancel culture, because it demonstrates a willingness to separate a person’s best work from the rest of their lives. 

But where teleology gets really interesting is in its contribution to the rule of law. The rule of law is the idea that the law should be explicit and knowable; and that it should apply equally to everyone. The teleological interpretation of law is a long established principle, particularly in European Law.  When interpreting laws, a teleological interpretation requires judges to look at the intent of the lawmakers at the time they made the law. 

To give an example: imagine a Victorian law specifying tough criminal sanctions for bank heists. Clearly, Victorian lawmakers could not have envisaged cyber-theft. Yet you could still apply that law today, on the grounds that the lawmakers were clearly intending to punish and prevent theft from banks. Conversely, if I stole the bank manager’s wallet, that law specifically would not apply. 

Teleological interpretations are quite easy to divine

In practice, teleological interpretations are quite easy to divine. Laws are not drafted in a vacuum. When legislation is passed, there are parliamentary debates, press releases and media presentations. New statutes invariably come with accompanying notes and examples. You can also look at the zeitgeist of the time. For example, was the law passed to ease a terrible recession, or in response to a horrific criminal case? All of this can be used to determine the intent of the lawmakers.

By limiting legal interpretation to the original intent of the lawmakers, teleology preserves the rule of law. Laws cannot be radically reinterpreted, ex post facto, by unelected judges. Thus, as well as combating the excesses of cancel culture, teleology can restrain the excesses of judicial activism. For all the partisan handwringing, this is what the US Supreme Court’s overturning of Roe vs. Wade was really about.

In 1973, the US supreme Court justices ruled that unduly restrictive state regulation of abortion was unconstitutional, effectively creating a constitutional right to an abortion in the first trimester (and beyond in specific cases). The judgement relied on the 14th Amendment which prohibits any state from depriving persons of ‘Life, liberty, or property, without due process of law.” From the right to liberty, the court inferred a constitutional right of privacy, and in turn, a right to abortion.  

The 14th Amendment was passed in 1868, in the aftermath of the American civil war (which ended in 1865). It was designed to prevent Southern states from restricting the rights of newly emancipated slaves. From a teleological perspective, can it reasonably be argued that the male and Christian legislators of 1868 intended their statute to guarantee access to abortion? It seems implausible. 

And that was the problem with the original Roe v Wade judgement. Unelected judges were making up laws that the executive had not. Personally, this leaves me in an odd position. I am pro-choice, but I also agree with the Supreme Court’s decision to overturn of Roe v Wade.  It is possible to sit in both camps: I believe in abortion rights, but I also believe they should be set by voters via their elected representatives acting under legislative scrutiny.

Senior Judges are unelected and unaccountable. Their pronouncements are not subject to public debate or parliamentary oversight. Moreover, they are a homogenous bunch. The very nature of the job means senior judges are invariably wealthy, elderly, highly educated and metropolitan. On the issue of abortion, none of the US Supreme Court judges are likely to have needed one for at least a decade. And it is inconceivable any of them have ever had to consider an abortion on financial grounds. 

Restricting judicial activism is ultimately about deciding who makes our laws: judges or elected representatives. The latter may have faults, but the former are in an even more invidious position. 

We saw exactly this tension in the cases brought against the UK government by Gina Miller, in her efforts to stop Brexit. Both judgements were heavily criticised, devoid of a coherent explanation grounded in legal precedent. They were yet another example of an elderly, wealthy and metropolitan elite playing politics.    

Judges have their own personal agenda

And as the Miller cases demonstrated, judges have their own personal agendas. The legal profession was entirely set against Brexit and for good reason. For lawyers, EU law had provided a forty year gravy train — proffering a steady torrent of poorly drafted and often contradictory laws, all of which needed enacting, interpreting, litigating and adjudicating. Naturally, lawyers were happy to oblige for a healthy hourly fee. For judges, there wasn’t just more casework, but a feast of job opportunities, conferences, trips abroad, speaking engagements and so on. Not only was our Supreme Court a homogenous and unrepresentative bunch, they also had a massive conflict of interest. The Miller cases were literally asking the chief turkeys to vote on Christmas. 

But it is in the field of human rights law where the scourge of political activism has reached its most dangerous, and where teleological constraints are desperately needed. The overreach of human rights lawyers has been widely reported. Every judgement seems to go way beyond what those who drafted and ratified the European Convention on human Rights (ECHR) could have ever intended. 

The ECHR was drafted in 1949, and the UK was the first to ratify it in 1951. It was written in the aftermath of the Second World War, and designed to ensure such atrocities could never happen again. 

There was plenty of discussion around the ECHR. We have a good idea of what the treaty’s founders intended. As Nazi hunters scoured the world to bring evil to justice, it seems implausible that the ECHR was ever meant to to prevent their extradition or deportation! Again and again, human rights lawyers have been willing to ride roughshod over the rule of law and democratic accountability in favour of their own political whims.   

In cases like these we are not saying the judges’ opinions are wrong. But these are matters for democratically elected representatives in dialogue with their voters. In overturning Roe v Wade, Justice Samuel Alito opined, “It is time to heed the constitution and return the issue of abortion to the people’s elected representatives.” Unaccountable judges with their own biases should not be making really important (or really controversial) laws.  

One of the saddest things about the Roe v Wade result was the entirely predictable and self-indulgent response of liberal celebrities, inevitably led by Meghan Markle. Livid with moral outrage, they promised to lawyer up and go back to the Supreme Court. Isn’t this is exactly the problem? Across the West there is growing anger over how our democratic rights have been replaced by an elitist plutocracy that has conveniently rigged the game. Judicial activism is just another strand of this democratic theft. In effect it allows government to be played out in gated palaces by vested interests, tech billionaires and celebrities with millions to blow on legal fees. In this elite-on-elite dialogue, the vast majority of people (the very ones who are affected) are locked out. 

In the wake of Roe v Wade, what no member of the elite suggested doing was going to the public. Where is the Nigel Farage of abortion? If Harry and Meghan feel so strongly, why don’t they come out from behind the barricades of their California mansion, buy a cheap microphone, jump in a pick-up and tour the country, making their case in dingy town halls over coughs and heckles. This is how democracy is supposed to work. It involves everyone: ugly people, elderly people, unwashed people and even people who do not share your views or care about your feelings. For California’s wokest, democracy must look like hell.      

Fortunately this democratic groundswell may happen anyway. Kansas has already voted in a referendum to protect abortion rights. According to The Spectator, 67% of US voters favour a right to abortion during the first trimester. Perhaps people do not need the elite to dictate to them after all. 

Another option is legislative compromise. Contrary to popular belief, abortion does not neatly spit down the line of Republican and Democrat. There are Republican supporters of abortion rights, particularly in the first trimester. If the Democrats really wanted, they could probably horse-trade their way to twelve week abortion rights nationwide, with some extensions in exceptional circumstances. But that would mean sacrificing those incendiary outbursts and partisan politics. And it would mean they could no longer employ abortion rights as an electoral stick (if you women want your abortion rights you must vote us in with a supermajority). Sorry sisters, it seems your rights matter, just not that much.  

But at least Roe v. Wade has thrown down the gauntlet. It is up to those we have elected to snap out of their malaise and to stop running from uncomfortable subjects. It is hitting the ball back into the democratic court. 

We in the UK must now go the same way. Specifically, we should pass a teleological duty on judges to apply law only insofar as it was intended when that law was made. Further, we should slap a teleological derogation on every international treaty, including the ECHR. In other words, treaties should only be applicable to the UK if it can first be shown that those who assented to the treaty intended it to be used in that way. That way, if governments want to change the rules, it is up to them to pass new laws, subject to the full force of democratic accountability.   

Teleology can take us one step back from elitist autocracy and one step towards representative democracy. We should embrace it.

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