Is the Law Resilient?

What Counts as a “Difficult Condition” for the Law?

Two categories stand out. First, immorality or inequality embedded within the law. Second, gaps in the law that allow injustice to flourish or create difficulty by their very existence.

Historical examples illustrate both. In R v R [1991] UKHL 12, the House of Lords finally abolished the marital rape exemption. Many would agree that the exemption represented a profound moral failure. In Re Sigsworth [1935] 1 Ch 98, the court upheld the principle that a person cannot benefit from their own wrongdoing.

Historical Resilience: Genuine or Superficial?

The decision in R v R is often cited as evidence of legal resilience. Yet the law was not resilient to the decades of cases that preceded it. Marital rape was common, and the refusal to criminalise it perpetuated state‑sanctioned inequality. If resilience requires the ability to withstand difficult conditions, the law failed for centuries.

However, if resilience includes the ability to recover, then R v R represents a delayed but meaningful correction. Still, the change depended on evolving social attitudes. When inequality stems from societal norms, the law cannot be resilient. It becomes a vessel shaped by the legislature and public sentiment.

By contrast, Re Sigsworth demonstrates a different kind of resilience. The maxim that one cannot benefit from one’s own crime was already embedded in doctrine. The law did not need to recover from a difficult condition. It simply applied an established principle. The difference is stark. When the law relies on social change, resilience falters. When it relies on entrenched maxims, resilience is swift.

Why Social Change Undermines Legal Resilience

Recent legislation illustrates this tension. The Nationality and Borders Act and the Rwanda Asylum Partnership have raised concerns about access to justice, including reduced opportunities for solicitors to work effectively with clients and the removal of judicial review for Upper Tribunal cases under the Judicial Review and Courts Act. The law has not resisted these pressures. It has bent to legislative will.

The underlying issue is societal attitudes toward refugees. Just as R v R required society to recognise women as autonomous individuals, resilience in refugee law requires society to view asylum seekers as people fleeing crisis. Without this shift, the law cannot correct its own inequalities.

Brexit and the Gaps in Self‑Regulation

Brexit exposed significant gaps in UK law. Leaving the European Union required reintegrating areas previously governed by Union law. Advocates of Brexit emphasised self‑regulation as a way to strengthen domestic law. Yet has self‑regulation made the law more resilient?

Worker health and safety law provides a telling example. The Robens philosophy, rooted in the Health and Safety at Work Act 1974, promotes self‑regulation but requires strong oversight from courts and legislators. Without EU supervision, the UK risks a race to the bottom.

International obligations remain unchanged, including the ILO Convention No.81 on Labour Inspection, the 1961 European Social Charter and the International Covenant on Economic, Social and Cultural Rights. Yet the UK has ratified only 6 of 35 ILO health and safety protocols, the same number as Mozambique, which ranks 181 out of 189 on the UN Human Development Index.

The promise of self‑governance has not produced resilience. Instead, gaps in oversight have weakened the law’s ability to withstand international scrutiny.

COVID‑19 and the Limits of Emergency Lawmaking

COVID‑19 required rapid legal responses. At first glance, the law appeared resilient. Regulations were passed quickly to impose social distancing and stay‑at‑home rules. Yet the manner of implementation reveals fragility.

Two problems emerged. First, the spread of COVID “guidance” through press conferences and ministerial speeches. Second, the use of legal powers in ways that bypassed legitimate law‑making processes.

The Coronavirus Regulations 2020 permitted exercise “alone or with other members of the household” but did not define duration or type. Ministers attempted to clarify through speeches. Michael Gove suggested “1 hour for a walk, 30 minutes for a jog”. Boris Johnson later allowed “sitting in the park”. None of this appeared in the Regulations.

People were fined for conduct that was not unlawful. Guidance was mistaken for law. Parliamentary scrutiny was sidelined. Emergency gaps cannot be filled by illegitimate processes. The law cannot be resilient when its procedural integrity is compromised.

Conclusion

The law reflects the attitudes, priorities and ambitions of the legislature and society. It can correct injustice, but only when social conditions permit. It can apply established maxims swiftly, but only when those maxims exist. It can respond to emergencies, but only when proper processes are respected.

The law is not inherently resilient. It is a product of its time. Its resilience depends on the people who shape it.