An intellectual Mann
Lord Sales talks of purpose in law and in interpretation
November is the month for legal lectures and their intellectual pinnacle is named after Dr FA Mann CBE FBA QC (hon) (1907-1991).
The 45th FA Mann lecture was given last night by Lord Sales, a justice of the UK Supreme Court since 2019. It is sponsored by Herbert Smith Freehills, initially in honour of — and subsequently in memory of — one the law firm’s distinguished partners. Another partner in the firm, Lord Collins of Mapesbury, preceded Sales at the Supreme Court.
Collins has contributed to a new collection of essays, “FA Mann: The Lawyer and His Legacy”, which sums up Mann’s achievements:
This book traces the life and legacy of a German-Jewish lawyer… who moved to the UK in 1933, fleeing racial persecution in Germany, and later became one of the best-known legal minds of his age, equally versed and experienced in legal practice and legal scholarship.
His book The Legal Aspect of Money, first published in 1938, opened an entire area for legal scholarship. His numerous publications — in particular, on public international law, conflict of laws, commercial law, procedural law, and arbitration — eclipse those of many full-time academic lawyers.
As a solicitor and partner at the law firm Herbert Smith, he was instrumental in transforming a legal profession in England which traditionally had left litigation to its clerks and instructed barristers to become the experts in international litigation for which London solicitors have become famed.
Purpose in law and in interpretation
“The whole point of an FA Mann lecture is that you have to go away and read it afterwards to understand what it meant,” I was told one year after sitting through an extempore harangue delivered by someone who clearly hadn’t seen the memo. It was a rare exception.
Although I wasn’t able to attend last night’s lecture, I had the advantage of being able to read it in advance. Lord Sales called it “Purpose in Law and in Interpretation”.
I cannot do justice to his elegant, intense arguments in a summary. Instead, I am going to quote from just two paragraphs, the first and the last:
Francis Mann was highly respected as a jurist and was very influential. One example of this is relevant to my theme this evening.
In the seminal case of Oppenheimer v Cattermole, the House of Lords considered whether the English courts should recognise a Nazi nationality law depriving Jews of their German citizenship.
The law lords had already heard the argument and were preparing to give judgment when they learnt that Francis Mann had published an article on the case.1 The article criticised the lower courts for failing to acknowledge that the post-war Federal Supreme Court had consistently held Nazi nationality laws as void — indeed as not law at all — du e to their being arbitrary and lacking the necessary qualities of law.
The House convened a new hearing to consider the article and it changed the course of the appeal, with the majority relying heavily on his analysis.
And this is how Sales concluded his lecture:
The common law tradition has always been sceptical of philosophy, prioritising the importance of practical experience in real world cases over abstract general ideas.However, I hope that in this lecture I have shown how the ideas of two philosophers — Fuller and Wittgenstein — help to explain the widespread use of the notion of purpose in real-world case law.
Fuller’s conception of law as the enterprise of subjecting human conduct to the governance of rules illuminates the common law’s respect for the agency of legal subjects, whether that be respecting parties’ purposes in making a contractual bargain or using purpose as a basis for limiting liability in tort.
Similarly, Wittgenstein’s conception of language demonstrates the necessity of resort to purpose in interpretation, as the open-textured nature of words means that legal rules only become determinate when used in specific contexts for specific purposes.
Update December 2024: The full lecture has now been published.
FA Mann, “The Present Validity of Nazi Nationality Laws” (1973) 89 Law Quarterly Review 194.
Many thanks, as ever, Joshua. I have to write something soon on a recent Lord Sales asylum and child wishes Supreme Court judgement. I’ll look out for the link to his speech to see if I need to make any mention of it in my piece.