Professor David Feldman

by | Jul 14, 2017 | Education / Academia, Interview, Legal profession and judiciary | 0 comments

David FeldmanHow would you describe your personal religious beliefs and identity?

I would say a fairly secular Jew.

Was that the tradition you were brought up in?  What made you decide to either adopt or retain it?

I was brought up in an Orthodox family, although not as Orthodox as some.  I’ve become steadily less Orthodox over time.

Would you describe Great Britain as an equal and a tolerant society, especially in relation to religion and belief?

I don’t think there is such a thing as an equal society. I would have regarded it as tolerant until a few months ago, but now I’m not sure that it is actually.  There has been a considerable flowering of intolerance, religiously offensive language, which pains me.

Would you say that there were particular moments when that has been apparent with events in the media over the past few months, anything which particularly springs to mind?

There has been a great deal of Anti-Islamic, Anti-Jewish feeling, a mixture in the case of Jews….a confusion of ideas which tend to dress up in my view Anti-Semitism as Anti-Zionism, and I find quite worrying that more general social acceptability of xenophobia which the Brexit campaign has brought out.  It’s made things a great deal worse.  I also think that there are serious problems in other parts of the world.  I don’t think that the UK is in any way extraordinary.

How easy do you find it to live in accordance with your own personal beliefs here?  Are there any challenges, and if so, are they legal, social or political in nature?

I find it fairly easy to live in accordance with my own personal belief system, but that’s because I am extremely selfish and have become good at fairly ignoring other people, so it’s not particularly problematic.  But then because I am fairly secular, my needs aren’t great.  I have a Synagogue of which I am a member and I can use it when I feel the need.  I don’t keep a seriously Kosher kitchen, so that doesn’t provide questions of access to Kosher meat for example.  No, I don’t find it difficult.

Do you feel that the Human Rights Act has been a positive, negative or a neutral development for our society?

In some ways I think it has been positive.  It has been a useful tool for addressing some of the more egregious problems which come up.  On the other hand, it has been resisted politically and socially in many quarters and has not yet resulted in a general social commitment to human rights.

How in your view does Judaism regard human rights?

I think that what it’s done is always to focus on the practical treatment of people, you know, treat people well.  That’s something which is a very basic part of the religion.  If it’s had an effect, and I’m not sure how much on an effect it’s had, I think that is probably the major contribution.  Doctrinally, there’s a sense of duty to God to treat one’s fellow humans and animals actually with respect.  I think that’s very important.  I don’t know how far it’s contributed to anyone else’s culture, but it’s very strong in Jewish culture.

Do you think that living in a Parliamentary democracy is a positive thing?  Is there any system of government which you would prefer?

Parliamentary democracy, when it works, works very well.  I don’t have experience of living in other systems, but I think that it depends on the nature of society.  I don’t think that it is necessarily better, because you need really quite deeply rooted social and political traditions to make parliamentary democracy work, and you also need a highly educated class of administrators to make the system work.  It’s a difficult question, because I think that it assumes that you can transplant our system onto other societies.  I don’t think that we could have had Parliamentary democracy without the several hundred years that came before it.  Parliamentary Democracy wasn’t exactly planned, it happened as a natural outpouring of the society which developed over six or seven hundred years.  I think that it would be artificial and unsuccessful to get societies with a different background in some cases to operate parliamentary democracy.

Do you feel that you have a personal moral responsibility to vote?

Yes

Was your religious perspective is a contributing factor to that?

No, I think that I would feel a moral duty whether I had a religion or not.  I think that it is part of being citizen.  I think that it has nothing to do with religion.

Do you find it problematic that members of the House of Lords have some role in the law-making process, even though they are not elected?

No, I don’t find that problematic.  There are different forms of what is sometimes called legitimacy.  The House of Commons has elected members, and their legitimacy basically comes from the way in which they get there.  It doesn’t really depend on what they do while they’re there, or what they produce, although there may be political implications later.  The House of Lords has a representative role in a different way.  It reflects a wide range of interests and fields of activity, and they by and large work extremely well.  And I think that their legitimacy comes from the quality of the work which they do, the reports and outcomes which they produce.  So it’s a different sort of legitimacy.  And I think that it is good that we have a chamber where people are actually pretty good at what they do.

How do you regard the presence of senior Church of England bishops in the House of Lords?

I have no problem about spiritual representation in the Lords.  There are members of a wide range of religions in the House of Lords.  I think that it is a little bit odd to have compulsory representation, as it were, of one particular strand of one particular religion, with a fixed number of representatives.  I think that’s a little bit odd, but then our Houses of Parliament are a little bit odd.  If you are worried about principles, you could say that that is not a very principled thing to have.  But I’m actually more worried about whether things work, and I don’t think that, at the moment anyway, the representation of the Church of England stops the House of Lords from working.  That analysis may be a religious thing, thinking about it.  It may be because Judaism is really practical,  There are principles, but I want things that work.  I’d rather have a chamber in which people will do the job properly and thoroughly than have a load of people who are elected and representing a very wide range of interests, or whatever that may be, where they are not really up to it.

Do you regard it as positive or problematic that some decisions which affect the UK are still taken by institutions of the EU?

No.  That supposes that for some reason I ought to?

No, the question was written before Brexit, and was originally do you regard our membership of the EU as good or bad, but that particular horse has probably bolted now.

Probably.

How do you regard the devolved administrations in Wales and Scotland?

I think that in Scotland it has probably been positive.  I don’t know enough about Wales and how it seems to be working.  I think, from the little I do know, that it seems to be working rather better than it was at the start.  It’s one of those strange things: the more authority that bodies have, the better they’re likely to work.  They seem to have operated responsibly and done a pretty good job within the sphere of their authority.  If that’s what you’re asking?  If you are asking whether I think devolution is a good thing, then I think that it is an essential thing, given the very loose and contested nature of the United Kingdom, simply because the cultures of the United Kingdom are different and the histories are different, and it seems to me that there are forces always trying to pull states apart.  One way of trying to hold states together is to release enough power to the different nations to make them feel that they can pursue their own destinies without leaving the umbrella.  So if one thinks that the United Kingdom is a good thing, and on the whole I do, for me it follows that devolution is necessary at the moment.

What responsibilities does your faith tradition teach come with power and its exercise?

I think the lesson is that power is dangerous but sometimes necessary, and usually inevitable. So if you accept the inevitability of people having power, you have to think seriously about who has what power.  But the tradition, the religious tradition, is deeply ambivalent about things like kingship.  God didn’t want kings.  The process by which God was eventually persuaded to allow the Israelites to have a king made it clear that kingship was something which wasn’t favoured by God or the priests.  And that is partly to do with the inherent tension between giving authority over your life to a secular figure, and one’s duties to one’s fellow people, creatures and God.

So my instinct when it comes to separation is that one wants to give as little power to any one person, whether religious or secular, as you can, except insofar as is absolutely necessary in order to enable them to do fulfil the task which they have been given.

Would you say that the current political leadership of society reflects society reasonably one in terms of gender, race, social class etc.?  And if not, is there anything which we can or should do to address this?

I think that the answer is probably that it doesn’t, although I don’t have statistics at my fingertips.   But again, I’m not sure that it’s a high priority.  I’m not so much worried about who our representatives are, as the fact that they don’t seem to be doing a very good job.  But I’m not sure that people who replaced them just on the basis of race or gender or whatever would necessarily do a better one.  I’m a meritocrat, I want the best people to govern and I don’t really care who they are.

Have you ever felt so strongly about a particular political or social issue that you have wanted to take action to change it?  If so, what did you do?

I used to be a member of the Liberal Party, back in the days before the merger with the Social Democrats, and I did feel strongly about the need to maintain freedoms and to support the least favoured members of society, and in a relatively non-doctrinaire way.  And I did all of the usual things, going round stuffing things through letter-boxes and knocking on doors at election time and that kind of thing.  On specific issues, I was strongly opposed as a very young person to the progressive abolition of grammar schools, I got quite aerated about that. I am, and was, quite irritated about a lot of other things that have happened, but not to the point where I got excited enough to jump up and down in public about it.  I think that most of my campaigning, if you can call it that, my least unsuccessful campaigning, tends to happen behind closed doors.  I tend to think that the grandstanders are good for publicity but not terribly good for persuading people of thing.  I don’t grandstand any more.

In your experience of dealings with public authorities, has there been an appropriate level of understanding and respect towards your religious beliefs, and any needs which might flow from them.

I’ve never felt in any way disadvantaged on religious grounds by any institution I have dealt with.  I’ve found that in the very best of them, they haven’t even been concerned about it, they haven’t even asked.  If I say that I can’t do this because…, they said, all right, well let’s find some other way of doing it.  It’s never been an issue.  I’ve worked with police, courts, magistrates and occasionally the civil service, and I just don’t think that it’s been an issue.

Is it important to you always to act within secular law, why or why not?  Are there circumstances which justify or necessitate breaking human law?

I’ve never felt a need to break to the law.  There are laws and laws.  I think that I’ve sometimes been guilty of speeding, although I’ve yet to be caught.  I’ve had a couple of tickets for parking on yellow lines and things like that.  But that’s been a matter of convenience rather than need, so I’ve been very lucky and I’ve never been in the position where I had to choose.  And actually, I’m not sure what I would do if I did, on anything serious.  By and large it’s quite important for people to keep the more important bits of the law.  Part of the problem is, of course, who knows what the law is?  I certainly don’t!  I can guess, but there is too much law.   I’m sure that most people just walking through the centre of Cambridge will have broken several laws in doing so without even being aware.

In your view do you feel that the Rule of Law is applied equally in UK society, or are there some groups which experience either prejudicial or preferential treatment?

Well, I think that it’s very difficult to say.  I am quite concerned for example about the way that allegations of child sex abuse are investigated.  It seems to me that if you have,,, Some Forces go out of their way to target high profile people, and I think that high profile people in criminal cases have a very difficult time compared with others.  On the other hand, I think that, if you are looking at stop and search on the street, it’s quite clear that young black men are much worse off than old white women.  I think that is observably true.  I suppose it’s worrying, but then it comes back to the question of power.  If you give power to officials, the use of the power will only be as good as the people it is given to.  However you try to change the law or put in place oversight, scrutiny, regulatory bodies and all the rest of it, in the end it comes down to people.  If you give people power, they will exercise it.  If they’re good people they will exercise it well, or at least try to.  If they’re not good people they will exercise it less well.  If they’re good but incompetent people, they’ll do their best to exercise it well but probably won’t quite manage it, but that’s life.  I think one wants to try to get people in positions of powers to exercise it as fairly and efficiently as possible, but I’m not sure that making rules and things will get you all that far.

How do you feel about the general trend over the last 15 years for the State to increase police powers and surveillance?  Has that been a necessary evil or an unnecessary infringement of civil liberties?

I think it has been an unnecessary curtailing of people’s liberty, and I think it’s often a legislative reaction which gives power to officials because they say that, without it, it increases the risk to the general public from terrorism and so forth.  And I have a rather unorthodox view of this, which is that you can’t make society safe from people who want to do harm.  If you intrude too much on people’s freedom in order to provide a higher level of safety or a lower level of risk, then you need to be very careful that you don’t end up destroying the things about society that make it worth defending.  If you give powers to the police and security service then you risk undermining the liberal part of a liberal democracy.  I would go as far as to say that in a liberal democracy, every citizen has a duty to risk being killed in order to preserve the liberal part of liberal democracy.  I regard myself as having a duty to accept a heightened risk of being killed or seriously injured, if that helps to keep society as liberal as possible.

Is there anything else on this topic which you would like to add?

The thing that most is pressing on my mind at the moment, related to the Rule of Law, is that I don’t see the Rule of Law being exclusively or even principally about citizens obeying the law.  It seems to me to be an attitude of mind of the part of politicians and the people with power in society, which accepts that they need to be governed by law and subject themselves voluntarily to legal control.  And part of that involves being subject to an independent judiciary.  One of the most worrying things about the whole Brexit controversy is that the judiciary are presented as having done something wrong if they say something which is inconsistent with the government’s short term objectives.  That is destructive of a liberal democracy.  It isn’t strictly religious, but it does relate to the suspicion which I have as a Jew of governments with power.  Governments should be subject to the law, and I fear that the present government and more particularly political demagogues are tending to forget that.

David Feldman is Rouse Ball Professor of English Law in the University of Cambridge, and a Fellow of Downing College, Cambridge. He previously taught at the Universities of Bristol and Birmingham, and held visiting positions at Nottingham University, the Australian National University and the University of Melbourne. He was the first Legal Adviser to the parliamentary Joint Select Committee on Human Rights (2000-2004), and a Judge of the Constitutional Court of Bosnia and Herzegovina (2002-2010). He is a Queen’s Counsel honoris causa, and Fellow of the British Academy. He has written extensively, mainly on public law, civil liberties, and related topics.

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