The Faith of a Romantic

‘There’s a famous slogan in the United Kingdom…From after the Second World War -

That is that we have to "win the peace"And that's what we must do now'

Sir Keir Starmer, at the press conference after his meeting with Donald Trump

 in the White House February 27th 2025

This is the third of a short series looking at how the peace was won after the Second World War through the eyes of David Maxwell Fyfe, a Nuremberg prosecutor who went on to champion and draft the ECHR. These blogs look forward to commemorative performances of Sue Casson’s Dreams of Peace & Freedom, which will remember its birth from the ashes of a decimated Europe and celebrate the protections of the Convention in this, its 75th anniversary year. In this final blog Tom Blackmore looks at how his grandfather's belief in natural law was shaped by his upbringing, and how its influence on his thinking is seen at different stages in his life.

Lord Kilmuir addresses the American Bar Association 1957

The American Bar Association came to Britain in the summer of 1957, principally to dedicate the temple that they had constructed at Runnymede to commemorate the Magna Carta. During their stay they were addressed by the Prime Minister Harold MacMillan who shared this thought with them:

I am told that the English common law has normally been best looked after by Scotsmen... We have had our fair share of Lord Chancellors; Lord Erskine and Lord Campbell, and in more recent times, Haldane who was Lord Chancellor in 1924 on the first occasion when the American Bar visited London. And now, another Scot, loved and respected by us all, Lord Chancellor Kilmuir.

A few days earlier they had heard from Lord Kilmuir when he addressed them in

Westminster Hall. Time magazine reported that when he concluded his address:

The Americans first were completely hushed, then they burst into applause.

How had the Lord Chancellor addressed them to provoke such a response?

He had first told them that the Americans and British lawyers ‘spoke the same thoughts,’

derived from a shared heritage of the law.

He had talked about the horror in the world in the thirty-three years between one visit of

ABA, and the one he was addressing, which he viewed as a ‘terrible period of trial’:

I most fervently pray that those years will show some improvement on the thirty-three

years that have just passed, which have been perhaps the most grievous that have

afflicted the civilized world since that period which we are still bold enough to call the

Dark Ages.

In 1924, a young lawyer such as I thought of the rule of law as something unassailable: we imagined that the horrors and sacrifices of the First World War had not been futile, and that mankind had at last learnt its lesson and would henceforth live in accordance with reason and with that need for harmony and peace which is instinctive in us all. What happened to these fond imaginings? Every single belief which we held was furiously assailed; hope that we nursed was disappointed; reason was once more dethroned; one brutalizing dogma after another was propagated and bore dreadful fruit. The house that we thought to be empty, swept and garnished, was entered by seven other devils more wicked, and the last state of man appeared indeed worse than the first. In those times, many felt with the great Irish poet that, 'The best lack all conviction, while the worst Are full of passionate intensity'. In this situation some lost their nerve and in the years of tyranny that seemed to have been loosed upon the world took comfort in doctrines that exalted authority. They lost confidence in the free legal and political systems which are the heritage and pride not only of our two nations but of the Western World.

Then into this desperate situation he introduced some grounds for cautious but practical

optimism:

However, as it turned out, there was no need to have been so alarmed, or so doubtful about democracy's power to survive. One fact that has been made abundantly clear is that (to put it at its lowest) a tyrannical society is much less efficient than a society which is free.

Many had forgotten, he said, or were unaware of ‘the inherent weaknesses of authoritarian rule’ that he had forensically studied as a prosecutor at the Nuremberg War Crimes Trials. He changed tack to describe the Norman influence on the building of Westminster Hall and peopling it with Courts and lawyers, before focussing on the main theme of his speech, the law of nature.

All this great past we share with you, yet there is a doctrine which we both share with a wider community even than that of the common law, but which has, for various reasons, become a little dusty and old-fashioned in recent years, and which I myself should like to see refurbished and restored to the position which it once used to occupy. I refer to the doctrine of the law of nature, one of the noblest conceptions in the history of jurisprudence.

To describe the law of nature he adopted the definition written by James Bryce, a late

nineteenth century Liberal intellectual, diplomat and politician:

“The Law of Nature represented to the Romans that which is conformable to Reason, to the best side of Human Nature, to an elevated morality, to practical good sense, general convenience. It is Simple and Rational, as opposed to that which is Artificial or Arbitrary. It is Universal, as opposed to that which is Local or National. It is superior to all other law because it belongs to mankind as mankind, and is the expression of the purpose of the Deity or of the highest reason of man. It is therefore Natural, not so much in the sense of belonging to man in his primitive and uncultured condition, but rather as corresponding to and regulating his fullest and most perfect social development in communities, where they have ripened through the teachings of Reason.”

Natural law, Kilmuir argued, operated beneath the surface, often not perceived but

underpinning all legal exchange. At the same time, he said, natural law demands that ‘the

law cannot stand still,’ because

Our laws are not static any more than society or human nature is static. Their roots, well-grounded in history and watered by wisdom, are constantly putting out fresh branches and leaves for the comfort of mankind.

The character of the law of nature evoked by Bryce, allied to the need for the mobility of law identified by Kilmuir gave, he believed, grounds for hope against the backdrop of his

description of the twentieth century 'Dark Ages'.

Therefore, let us be of good heart. The ideals which underlie the laws of our two countries have outlasted many tyrannies and have seen the decay and death of many specious theories. The reason why that anvil has broken many hammers is (once more in Bryce's sober words) that these ideals are "conformable to the best side of Human Nature" and an "expression of the highest reason of man".

Sir David Maxwell Fyfe and the aftermath of war 1945 – 1950

Sir David Maxwell Fyfe had been living his faith in the law of nature very publicly since the war ended. At that time, he was Attorney General in Winston Churchill’s post-war government. He was given the job of convening and chairing the London Conference which established the Nuremberg Trials.

Later, he described the choices faced by those attending the Conference.

A number of choices were open to us – one was to select the defendants and give them a hearing. In such event, natural justice demanded that we should inform them clearly what charges were against them, produce to them the evidence in which these charges were based, and give them a full opportunity of answering them.

This was the choice that was made by the Allies. After the election Sir David was still in

parliament, but no longer in office, he was asked by Hartley Shawcross, the new attorney

general, to lead the British prosecution team in Nuremberg. Here Sir David found a great ally in Robert Jackson, the American Chief Prosecutor, who opened the Trials so memorably, evoking the ‘Reason’ which was the foundation of the law of nature:

That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.

So the law of nature was a foundation of the War Crimes Trials. And it was the cost to

humanity that stirred Sir David throughout, the evidence that ‘reason had... been

dethroned’

I went to a pre-view of the Russian film in Auschwitz concentration camp. When one sees children of Mo's age and younger in this horrible place and the clothes of infants who were killed, it is worth a year of our lives to help to register for ever and with practical result the reasoned horror of humanity.

In his closing speech at Nuremberg he aired the repeated need for the law to live to

accommodate the demands of natural law.

The law is a living thing. It is not rigid and unalterable. Its purpose is to serve mankind and it must grow and change to meet the changing needs of society.

And concluded with a statement of the universality of the dignity of all humanity and their entitlement, every one of them, to own certain rights and freedoms within the law of nature.

It might be presumptuous of lawyers who did not claim to be more than the cement of society to speculate or even dream of what we wish to see in place of the Nazi spirit, but I give you the faith of a lawyer some things are surely universal: tolerance, decency, kindliness. When such qualities have been given the chance to flourish in the ground that you have cleared, a great step will have been taken. It will be a step towards the universal recognition that: ‘sights and sounds, dreams happy as her day, And laughter learnt of friends, and gentleness, In hearts at peace.’ Are not the prerogative of any one country. They are the inalienable heritage of mankind.

Returning from Nuremberg he grappled with describing its impact in a world still packed

with jeopardy:

In the world of the atomic bomb mankind is at the crossroads that leads either to sanity or destruction. In one sense Nuremberg did express a triumph of the human spirit - to the extent that it stated what humanity could not tolerate and more gropingly some things for which humanity stands. Yet I am haunted by some words from a song to which we used to listen in more carefree days : 'On fait des serments, et simplement, on les oublie’ Having propounded high ideals in defeated Germany I feel the responsibility for doing my part to see that they are not forgotten by the victors.

One risk was the speed at which humanity turned its head away from the horrors of war:

There is in each of us a sundial factor of our mentality. We are inclined only to count the sunny hours. Moreover after exhausting wars men tend to suffer a weariness of mind. This lassitude can make them shrink away from facing the limitations of human nature. It can produce a facile scepticism about their evil deeds. New generations dislike reading the history of the gas chambers, and so the fact that men claiming to be civilized put millions to death in the gas chambers slip from history.

However, at the same time, he began to make out from his year in Nuremberg the

emergence of what he saw as the next manifestation of the law of nature:

Most people approach the subject of War Crimes Trials fundamentally either as cynic or idealist. This is, I think, because in essence the case for or against trying war criminals depends on that controversial subject which has become succinctly known as human rights. Your cynic says, "Human Rights? There are none." Your idealist, however, takes the view that there are certain rights and freedoms not created by lawyers but to which mankind as such is heir and which cannot be alienated. It is a conception akin to the idea of the Law of Nature which had such a wide influence on relationship in past centuries, although now somewhat outmoded. The idea of fundamental Human Rights is one in which I firmly believe.

And in the five years after the trials Sir David was to translate that faith into concrete action. This time he was riding alongside Churchill in the United Europe Movement. Churchill expressed very clearly his plan at the Congress of Europe at The Hague:

The Movement for European Unity must be a positive force, deriving its strength from our sense of common spiritual values. It is a dynamic expression of democratic faith based upon moral conceptions and inspired by a sense of mission. In the centre of our movement stands the idea of a Charter of Human Rights, guarded by freedom and sustained by law.

And he evoked his dream of:

A happier sunlit age, when all the little children who are now growing up in this tormented world may find themselves not the victors nor the vanquished in the fleeting triumphs of one country over another in the bloody turmoil of destructive war, but the heirs of all the treasures of the past and the masters of all the science, the abundance and the glories of the future.

Once the Parliamentary Assembly convened Churchill promoted the idea of a court:

Once the foundations of human rights is agreed on (sic) ...we hope that a European Court

might be set up, before which cases of violation of these rights in our own body of twelve

nations might be brought to the judgment of the civilised world.

Each of these are coursed through with a sense of natural law and justice, of a law and order beyond the practical.

To Sir David fell the detailed work of realizing the Convention and the Court, but this

provided him with the opportunity to influence the first drafts of the Convention. He was

happy to undertake the work as he described his response to Churchill’s invitation:

I had always been anxious to do something positive after the part I had played in destroying Nazi ideology, and I accepted with enthusiasm. I wanted to do something about human rights.

He described early progress in this way:

Our draft had as its basis security for life and limb, freedom from arbitrary arrest, freedom from slavery and compulsory labour, freedom of speech, freedom of religion, freedom of association, freedom of marriage, the sanctity of the family, equality before the law, and freedom from arbitrary deprivation of property. I was very anxious that we should get an international sanction in Europe behind the maintenance of these basic decencies of life.

When signed, the Convention protected the rights to life, liberty, security, marriage, privacy, a family life, a fair trial and effective remedy. Protocols were added in the early days to protect the rights to education and property. The Convention offered freedom from torture, slavery, forced labour, discrimination and punishment without law, and freedom of thought, conscience, religion, expression, assembly and association.

Why then this selection? Sir David understood the core problem of the interpretation of an understanding of natural law to something more practical:

The difficulty of course is, that, as human lawgivers are not the creators but only the codifiers of those fundamental rights, opinions differ widely as to their precise definitions.

What does the selection that was made tell us about the intention of those that drafted it? The Convention empowers the civilian within the state and encourages the state to uphold a respectful governance of their people and those on their land. Sir David described his ambition and that of those who worked with him as:

Our lunatic century is looking for a way of guaranteeing ordinary people a quiet life.

Given the 'Dark Ages' from which humanity had just emerged this was a revolutionary

democratic sentiment. Churchill said much the same thing:

I have the feeling that after the second Thirty Years' War, for that is what it is, through which we have just passed, mankind needs and seeks a period of rest. After all, how little it is that the millions of homes in Europe represented here today are asking. What is it thatall these wage-earners, skilled artisans, soldiers and tillers of the soil require, deserve, and may be led to demand? Is it not a fair chance to make a home, to reap the fruits of their toil, to cherish their wives, to bring up their children in a decent manner and to dwell in peace and safety, without fear or bullying or monstrous burdens or exploitations, however this may be imposed upon them? That is their heart's desire. That is what we mean to win for them.

The Convention speaks for the millions and the ordinary people, of whom Sir David thought he was one after his working family life in Liverpool and his childhood in Scotland.

David’s childhood

David was a scion of the Scottish Enlightenment which had flourished in Edinburgh in the two centuries before his birth. For him this movement embodied romanticism, rigour, and the law of nature. He wrote in his autobiography:

I have always been a romantic, and for me the past is peopled with brave and generous spirits.

Elsewhere he wrote that:

By romance I don’t mean sentimentality or foolish optimism, but some idealism, an imaginative perception, a pervading sense of tradition, and a strong sense of the adventure of living.

Fuelled with this philosophy he described his Edinburgh childhood:

The cobbled, dimly lit alleyways of the old town, the symmetrical splendour of the great streets, the aloof and enthralling majesty of the Castle. The sunshine and laughter on Blackford Hill where I played and dreamed. The glorious vistas from Arthur's Seat and Salisbury Crags. All are etched indelibly on my memory.

His family circumstances, both his parents being teachers, were stretched

We were always poor, but self-contained and happy.

He described the rigour in his education, and how he maintained his place at George

Watson’s School, one of Edinburgh’s great private schools, without the benefit of sufficient wealth:

Scholarships were only given for one year and I won my first at the age of eight, subsequently winning one each year which paid my fees for the forthcoming year. It was perhaps a hard system, but it undoubtedly made one work and fostered both ambition and a certain amount of self-confidence. It is not a bad thing for a small boy to have to work for his education rather than having it provided by an indulgent parent or state, even if he isn’t convinced of that at the time.

His parents contributed to his efforts by moving regularly to different rental houses around the Meadows.

There had been much debate of the law of nature throughout the Scottish Enlightenment. There were many schools of thought and individual characters who held different views. Dispute was not just encouraged but was the lifeblood of the city, and that dispute was conducted in a complex web of language. There were few broad lines of distinction, but one in particular is important to David’s understanding and enthusiasm.

From the earliest days, from classical times, natural law (described as 'jus') was, as Knud

Haakonssen wrote: ‘something which an action or state of affairs is, when in accordance

with the law’. It was a means of describing and reinforcing what is, and how humanity

should acquiesce in being content for the purpose of the common good. This interpretation supports authority, and a slow and settled model of law making.

In the seventeenth century an alternative understanding of natural law began to emerge.

Many see Hugo Grotius as a turning point. He was a Dutch philosopher whose influence has spanned the centuries to the present day. Importantly he wrote about the conduct of war and the transition to peace, alongside his observations on natural law. Here he put his emphasis on the individual with rights being something that a person has, a power, a moral quality.

Nature was no longer a description of a frozen state of things, a state that held up that which already was, and the power of those who held it. It became a dynamic force protecting universally through the respect of all, and an expectation of a perception of freedom.

The Scottish Enlightenment featured exponents of both views, but many of the most

reverberant voices, including Hume and Adam Smith, echoed and developed the ideas of Grotius. It was these voices of natural law that David heard, and interpreted them as human rights. As we have seen, these, for David, would be protected by a dynamic living law, and would be a list of freedoms interpreted by a Court and enforced by case law.

If Edinburgh equipped David for his work in Nuremberg and Strasbourg it was his mother

Isabel’s home in Dornoch that inspired him. Each year for his summer holidays, he would

visit her family. Partly of course it was the impact of nature itself on a young man in this

staggering beautiful corner beyond the Cairngorms:

To the imagination of my boyhood the countryside ... had a magic of its own. I shall never forget the joy of walking over the heather, finding a place to bathe and later pulling a heavy boat in half a gale on Loch Shin and watching its length fade into the hills or further west seeing the mass of Ben Mohr Assynt climb into the clouds.

But there was more to it. Later he wrote:

To me the old stories are very close.

One of these was a tale of injustice that was exacted on his mother’s family during the late Clearance of the Skibo estate in 1877. The eviction was recorded in detail by Gladstone’s Napier Commission report. Isabel’s uncle Donald committed suicide on the day the family left the mill at Migdale where the family had lived for nearly a hundred years. When he had moved in, in 1785, John Fraser had negotiated a ‘perpetual’ tenancy, but this was watered down by subsequent landlords, and in the end the most recent of a number of owners Evan Charles Sutherland-Walker did not make any payment to recognising the improvements made to the mill and its land by the Frasers.

Isabel was in her late teens at the and the tragedy had a huge impact on her life. It set her

on course for a life as a teacher and it was only twenty years later that she became

reacquainted with William Fyfe, then a widower with four children, married him and had her only child, David, at the age of forty. She ensured that to her son the old tales of injustice were very close.

Later when at university he wrote carefully as a young Conservative about the need to learn from the past:

We must and do frankly admit that there was injustice in time past which must be rectified, and losses that must be cut; but the traditions and ideals of Toryism remain able, as few things are, to keep us a united country. As the Gaelic proverb says, ‘The heather has, mayhap been on fire, but who for that reason would uproot it from the hills.’

As well as reiterating his knowledge of injustice, this illustrates the manner in which he used the deep knowledge as a cloak. There was no proverb. It was of his own making. When appointed Lord Chancellor, he wrapped Dornoch, Creich, and Kilmuir around him as statements of his identity, faith and awakening forged in his childhood.

Conclusions

Of the Scots David wrote:

For better or for worse we as a people have a present sense of history. I believe it is of the utmost value because you cannot understand the present except in the light of the past.

This blog, the third in a series about David Maxwell Fyfe’s role in Winning the Peace after the Second World War, was always going to be about what the law of nature meant to him. To David, natural law was the expression of rightness and justice for, and the rights and freedoms that protected every member of humanity and give them the confidence that they need not fear authority.

Although he recognised the law of nature as emerging from classical times, he did not

subscribe to a classical legal approach, which sought a common good and morality which was governed into citizens.

The rights and freedoms enumerated in the Convention echo Grotius, Hume and Adam

Smith, believing that free citizens will strive to create strong communities. For example, by actively contributing to a democracy. In such a society, law will be a lively force, constantly changing, to meet the constantly changing needs of the citizens. Like the constantly changing light on Dornoch Firth, surrounded by the history of the Struie, the banked road that runs alongside it to the turning for Migdale. As David wrote:

It is necessary to remember the traditions and example of the men of past ages in confronting the future. This does not mean blindly following the methods of past years, but endeavouring to realise the ideals of those who made the position which as a nation we occupy today.

One group who is failing in this task are Oxford’s Policy Exchange, who have occupied

themselves with the task of questioning the Convention as part of Maxwell Fyfe’s and indeed Churchill’s legacy. In their recent publication, Revisiting the British Origins of the European Convention on Human Rights they are turning their back on ‘the ideals of those who made the position that we occupy today’.

In their passion to disassociate Churchill in particular, they work themselves into a muddle. For example they write:

Arguments that the ECHR is a part of 'Churchill’s legacy', the handiwork of British jurists like Maxwell Fyfe and Dowson, 'an impeccably Conservative document' steeped in venerable 'British common law traditions', may have been sound in the first two decades of the Convention. Today, however, they lack any plausibility.

You cannot shrug off a legacy once it is established. And once they agree that the

Convention was for a time Churchill’s legacy, then it is for all time. You can 'not like' what

happens next, which may colour the legacy, but does not obliterate it. There is no time-out on a legacy. It either is, or it is not. They state that it was - and therefore it still is. They also offer this argument:

Those supportive of how the Convention has developed over the last 75 years might well argue that the intentions and aspirations of the drafters should not control how the Convention is understood and interpreted today, and that the way the Convention has shifted in its objectives and methodology are welcome developments. But one cannot maintain this argument whilst simultaneously saying that leaving would betray the legacy of Britain’s involvement in the Convention’s formation and drafting, because this original legacy has long been abandoned by the ECHR and its jurisprudence.

In this they are simply wrong. These two arguments sit very comfortably alongside one

another. This is most easily understood by returning to David’s faith in the law of nature: that it would empower and protect all people, and that it would be supported by a living law/quicksilver law.

The drafters, including David, wrote the words. They could not possibly have foreseen, and very probably would not have understood, the revolution in society that has occurred over the past seventy-five years. They are not here to speak, but they would have understood the law would have to match up to these changes, and to seek to protect and empower all. Leaving the Convention would mean abandoning the endeavour 'to realise the ideals of those who made the position which as a nation we occupy today.'

Post-war economists forged out the future in Bretton Woods. Meanwhile those involved in shaping and implementing law passed through Robert Frost’s yellow wood. In it were the two paths. One led to a return to tyranny under the guise of strong government. This would be supported by the school of natural law now called 'the classical law tradition' that draws its inspiration from the world before Grotius, in which people should know their place ordained by those in power.

The path the Western world took however, was the alternative path, of democracy, human rights and the rule of law. From Franklin D Roosevelt’s 'Four Freedoms', through the Universal Declaration on Human Rights, to regional instruments like the ECHR. Along the way this path has led to equality, a concerted opposition to discrimination, and finally a grasping respect for the identity, choices, and opportunities for all.

There are those who simply don’t like the path that was taken. And a number who don’t like it today. In recent years the classical Law School of Human Rights has created a Common Good project which proposes a return to natural diktat. Elsewhere the Dark Enlightenment movement has touched and changed the President of the free world, and not for the better. Too many of Churchill’s ‘ little children who are now growing up in this tormented world', having enjoyed living through 'a happier sunlit age', are now complicit in creating profound uncertainty. They have forgotten ‘the inherent weaknesses of authoritarian rule’ And they should be ashamed. Where is their gratitude?

Having just performed in Dornoch and planning to spend the summer celebrating the ECHR protections at the Edinburgh Fringe Festival (another Enlightenment Project of the past 75 years) I am satisfied that my grandfather was Scottish to his core and would for be for enlightenment over darkness, freedom over proscription.

As John Edward, Head of Operations at the Scottish Council on Global Affairs has remarked, there are some things that can only happen in Scotland.