Qatada shows that it isn’t only injury we have to quiet; it’s our sense of the preposterous, too

Our subject today is Dr Johnson’s hypothetical highwayman. For readers who have forgotten him, here’s a reminder.

Boswell and Johnson are drinking tea at the home of Dr Taylor, Prebendary of Westminster. Johnson is uncharacteristically silent, “reading in a variety of books”, according to Boswell, “suddenly throwing down one, and taking up another”. Twenty more triumphant years of Kindling and we will wonder how that would be possible.

Johnson mentions that he means to go to Streatham that night, probably to call on Mrs Thrale. This might explain the agitation of his manner. “You’ll be robbed if you do,” Dr Taylor warns him, “or you must shoot a highwayman.” Perhaps catching a murderous glint in Johnson’s eye, he goes on to say he would rather be robbed than shoot a highwayman.

Human rights hindering direct action, even then.

Johnson is more pragmatic. “I would rather shoot him in the instant when he is attempting to rob me,” he says – raising the interesting side question of whether the author of Rasselas and Lives of the Poets went about with a pair of pistols concealed in his waistcoat – “than afterwards swear against him at the Old Bailey.” There is less chance of mistaken identity, that way, he explains. Shoot him in the act and you can be sure you have the right man. “Besides, we feel less reluctance to take away a man’s life, when we are heated by the injury, than to do it at a distance of time, by an oath, after we have cooled.”

“So, Sir,” puts in Boswell, taking the role of Shami Chakrabarti, “you would rather act from the motive of private passion, than that of publick advantage.”

Comes back Dr Johnson, never a man to miss a joke that punctures high-mindeness, “Nay, Sir, when I shoot the highwayman I act from both.”

I would have that line framed and placed behind the chair of every judge in the land.

It will now be apparent that while I evoke the hypothetical highwayman, I am looking at Abu Qatada. Not that mistaken identity, or fear that there might be mistaken identity, has played any part in this long-running smash hit comedy of errors – “The funniest play on in London: don’t miss it!” It’s to his credit that he has made no attempt to disguise or soften his appearance. He looks what we accuse him of being. Indeed he looks so what we accuse him of being that it’s hard to avoid the conclusion that he means to mock us with our melodramatic imaginings.

I trust I will not be construed as suggesting that someone should have taken Abu Qatada’s life when he was caught in the act, whatever the act was. But it would certainly have saved time and money. And maybe made the world a safer place. Whoever chose the quick way of silencing Osama bin Laden made a wise decision. It was not a moral decision, but sometimes wisdom must prevail. It could even be argued – and Johnson is on the way to arguing it – that there are times when wisdom, all things considered, seizes the high ground from morality. Whoever saves mankind by an immoral act performs a greater good than he who would see it perish in the name of principle.

The absurdity of giving principle precedence over the humanity which principle exists to serve – because where there is no life there is no call to distinguish between right and wrong – was demonstrated last week by the Court of Appeal’s insistence that the possible risk Abu Qatada poses to national security has no relevance to the law on whether sending him home would infringe his human rights. Since the logic of this entails weighing the consequences to Qatada, it breaks down in the matter of not weighing the consequences to us. The key word is “relevance”. If risk is irrelevant to the letter of a specific law, then there’s something wrong with that specific law. For the letter killeth.

As for human rights, we have been round the houses on the subject. Even liberals lacking Johnsonian robustness look uncomfortable when human rights are invoked in the case of Qatada. But a principle is a principle. And there’s the problem. Sometimes one overriding principle makes a dog’s dinner of another. Human rights is not the first concept to have originated in the highest and most disinterested motives, that compels every civilised person’s allegiance, but that falls foul of the contradiction at its heart. “What about my human rights?” is a banal, dog-in-a-manger plea, but it asserts a fundamental truth – rule on behalf of one person’s rights and you violate someone else’s. In this instance, those to whom, by the court’s admission, Qatada might very well pose a risk.

Geoffrey Robertson QC argued eloquently on Newsnight for the rule of law and the independence of the judiciary, and we agree with him. Something must be set above our private interests, the fury of our passions, the common reasoning of the marketplace and the will of Theresa May. In the end, the cacophony must be silenced. Left or right, bloodthirsty or forgiving, we must all submit to the judgement of those we appoint to reason dispassionately in cases where we, forever “heated by injury”, cannot.

But it isn’t only injury, or apprehension of injury, we have to quiet; it’s also our sense of the preposterous. And to be told we must protect an advocate of violence and hatred from the risk of torture in the country of his birth outrages both. Principle is a fine thing, but so is common sense. Boswell was a lawyer. The distinction he makes between acting from the motive of private passion and the motive of public good is the law’s. And that’s the distinction Johnson refutes. “Nay, Sir, when I shoot the highwayman I act from both.”

Sometimes we just have to shoot the highwayman.