Sunday, 8 February 2015

The Letters of the Law

English law has spawned not only a vast body of technical writing but also a body of what can more convincingly be called literature.  In this post, I want to survey some of the most outstanding examples of English legal literature.

1.  Sir William Blackstone, Commentaries on the Laws of England

This is the most famous law book in English history, and deservedly so.  Smooth and lucid, and written in an inimitably 18th century style, it is still regarded as a work of authority across the common-law world, including the United States.  It is none other than Blackstone's Commentaries that Jimmy Stewart uses to try to to bring law and order to the Wild West in The Man Who Shot Liberty Valance.

Blackstone's approach to the law was systematic and methodical.  He was something of a philosopher and historian as well as a lawyer.  He sought to make the essentially unsystematic provisions of English law seem logical; and he acted as an apologist for the laws of his day as well as a describer of them.  His opinions were orthodox rather than radical, but he was a great friend of traditional English freedoms, which he traced back to three primary foundations: security of the person; liberty of the person; and ownership of property.

It was Blackstone, of course, who was responsible for the best known quotation in English law, one known far beyond the boundaries of the legal profession:
All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer.
("Better for whom?" has been the response of successive authoritarian smartarses over the years.)

2.  Lord (Tom) Bingham, The Rule of Law and other works

Everyone says they believe in the "rule of law", but not many people attempt to explain what it is.  The Rule of Law is a very good layperson's introduction to the idea, written by Lord Bingham, one of the great judges of the last hundred years.  Bingham was not only a considerable legal mind but a skilful writer too.  His book has accordingly been both a critical and a commercial success, winning the Orwell Book Prize in 2011.  Bingham defined the idea of rule of law as follows:
....that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.
He laid down eight specific principles which he felt fleshed out this concept.

Lord Bingham has also left us two collected volumes of his lectures, The Business of Judging and Lives of the Law.  These are meticulously researched and frequently fascinating, ranging over subjects from human rights to youth justice to how judges decide what evidence to believe to the workings of the Supreme Court of India.  Lord Bingham's lectures were mostly intended for legal audiences, and they are likely to be appreciated more by the lawyer than the interested layperson, although they have much to teach both.

3.  Lord Denning, Various works

Lord Denning, the former Master of the Rolls (1962-82), is still revered by lawyers for his instinct for fairness, his belief in individual freedom and his refusal to be bound by what he considered outdated legal rules.  This is in spite of some less big-minded comments which he made in his advanced old age.

Denning was a master of language: some of his judgments might count as literature in themselves ("It was bluebell time in Kent....").  In his books, he was writing for a mass audience, and his style is sometimes in danger of falling into banality.  Nevertheless, they are eminently readable, and give a unique insight into the mind of one of the most influential senior judges of the last century.

Denning was essentially an Edwardian figure who somehow ended up surviving into the days of the Sex Pistols.  Here is a classic Denningian passage from What Next in the Law.  The context is a technical discussion of tortious liability for road traffic accidents:
When I was a boy, all movement on the roads was by horse or on foot.  There were the farm wagons going slowly along - with loads of hay - or bags of corn - drawn by two horses.  There were the tradesmen's vans going more smartly - with one pony - but stopping every few yards to deliver their wares.  There was the occasional gentleman's carriage driven by his coachman.  There was the man on his horse coming to do business.  So far as I remember there were rarely any road accidents.  I never heard of anyone in our parts being injured or killed.

4.  Lord Campbell, Lives of the Chief Justices of England

Lord Campbell was a Victorian-era judge and politician.  In this four-volume work, he describes the lives and careers of our various Chief Justices in warm and copious Victorian prose.  He records, not always flatteringly, their personal characteristics, their political opinions, their religious beliefs and their jokes.  There was Ranulf de Glanville, the author of the first English law book, who was killed on crusade; Sir Francis Pemberton, who learned his law while in prison; the Stuart-era legends Coke and Jeffreys; Lord Tenterden, a barber's son made good; and Lord Kenyon, whom Campbell knew personally and clearly despised.

Reading Campbell truly takes one back into another world, as shown by this anecdote told of the Greek scholarship of Lord Mansfield (served 1756-1788), a talented but cold man:
So completely had he retained his mental faculties, that, only a few days before his last illness, his niece, Lady Anne, having in his hearing asked a gentleman what was the meaning of the word psephismata in Mr. Burke's book on the French Revolution, and the answer being that it must be a misprint for sophismata, the old Westminster scholar said "No, psephismata is right;" and he not only explained the meaning of the word with critical accuracy, but quoted offhand a long passage from Demosthenes to illustrate it. 
Campbell also published a series of Lives of the Lord Chancellors in similar vein.

5.  Sir Robert Megarry, A Miscellany-at-Law, A Second Miscellany-at-Law and A New Miscellany-at-Law

These three collections of legal trivia, anecdotes and eccentrica compiled by the great chancery judge Sir Robert Megarry appeared over half a century between 1955 and 2005.  Quirky and variegated, they will appeal primarily to lawyers.  They are the sort of thing that one can imagine Denning reading in the toilet.

6.  Lord (David) Pannick, Advocates and Judges
Judges do not have an easy job.  They repeatedly do what the rest of us seek to avoid: make decisions....
These are two books by the leading barrister David Pannick QC on the bar and the bench.  In them, Pannick discusses the people, processes and conventions which have shaped the English and other legal systems.

Filled with interesting quotations and anecdotes, the books were written with something of a polemical purpose (some of their contents had previously appeared as articles in The Guardian).  Pannick was advocating for reform, and he was doubtless deliberately provocative in some of his criticism of the English system.  One need not agree with everything he says to find his writings stimulating and informative.

7.  Geoffrey Robertson QC, The Justice Game

Geoffrey Robertson is a well-known Australian émigré and human rights barrister.  He has written a series of books, of which this one is perhaps the most wide-ranging and interesting to the general reader.  In it, he describes his involvement in a series of well-known legal dramas, from the Stonehouse affair in the 1970s to Neil Hamilton and "Cash for Questions" to the disorientating experience of litigating in Lee Kuan Yew's Singapore (the robing room looked just the same as in London, except that it was bugged by the secret police).

Robertson's style is a little rhetorical at times, but he is interesting and evocative.  We hear how Mary Whitehouse thought that God inspired his speech for the defence when she prosecuted Gay News for blasphemy; how he got Alan Clark to admit to being "economical with the actualité" in the witness box; and how Lord Widgery decided to go soft on the defendants in the Oz case when his clerk privately showed him what real hardcore pornography looked like.

8.  Richard Du Cann QC, The Art of the Advocate

First published in 1964, this book has become essential reading for barristers and anyone else engaged in courtroom advocacy.  It provides an eminent barrister's survey of the techniques, rules and history of advocacy, illustrated with plentiful examples from trials of the past.

9.  Sir Stephen Sedley, Ashes and Sparks

Stephen Sedley was an eminent public lawyer who ended up on the Court of Appeal bench and was for a time tipped for a place on the Supreme Court.  This collection brings together selections from his journalism, speeches and other writings from a period of around 30 years.

While at the bar, Sedley was one of the pioneers of modern British administrative law.  He also found time for writing and speaking, and kept up these activities when he ascended to the bench.  He is an intellectual heavyweight, and his writings can be very thought-provoking.  There are occasional amusing anecdotes, such as Sedley's youthful appearance before Lord Denning on behalf of Mad Frankie Fraser ("'Ah', said Denning, 'I don't think this will take us long....'").  He is unusually interested in philosophical theory for an English jurist, and he has an unusually radical political background.  As a former communist, his ability to write sensibly undergoes a perceptible falling-off the closer the subject gets to God or Margaret Thatcher.  However, while he doesn't attempt to hide his views on such matters, the register of his prose is closer to irony than polemic.

10.  Sir John Mortimer, The Rumpole books

No list of this sort would be complete without a reference to John Mortimer's well-crafted and entertaining Rumpole books (which, perhaps surprisingly, emerged from the TV series rather than the other way round).  Horace Rumpole is an ageing criminal barrister who has never taken silk, (almost) only ever appears for the defence and (almost) never pleads guilty.  An avowed anarchist, he believes in very little other than the presumption of innocence (and is a fan of Blackstone's quotation on the subject).

Not quite John Mortimer's alter ego, Rumpole is probably still out there somewhere, subsisting on Legal Aid cheques, quoting Wordsworth and keeping up a drinking habit that never quite gets out of control.  So are the other characters in the series, insofar as they weren't thinly veiled versions of real people.  In one respect, Rumpole has left an indelible mark on modern English law: according to Geoffrey Robertson, it was his exposure of police corruption that led to the enactment of the Police and Criminal Evidence Act 1984.