34 Pilgrims’ Progress: Academics and Practitioners
ONE OF THE more depressing aspects of joining a distinguished legal profession as a barrister in 1952 was the gap - a glaringly one - between the coterie of those functioning in and around the Temple, and their co-professionals in academia.
Law was in those days imparted to students as the qualities (if not the quiddities) of a developing legal system in a modern democracy. Legal training had been a traditional subject in tertiary education, but it was very much taught in isolation of the law in practice and allied disciplines. When I went in 1954 to Fitzwilliam House (not until 10 years later a full college of the University), I was contemplating a career in legal academia. After a year’s experience under the brilliant tutorship of Dr Kurt Lipstein, the law dons at Cambridge seemed to me remote from the law in action, other than what they read and debated among themselves of the ratio decidendi of the case law. Professional contact was minimal; more specifically, the output from the courts of law disclosed little knowledge of what the theoreticians were producing in the literary world. When I began practice it was strictly permissible to cite in court a textbook as a legal authority only if the work’s author was deceased! This absurd convention was blithely ignored, even if the effect was to acknowledge the dual operation of a viable legal system. Today it is quite different. Fusion has taken place. I cannot pinpoint the occasion when academic writings began to be cited in judgments, but I will try to trace the whys and wherefores of the fusion. Peripheral events, such as the influence of assistance from academically distinguished graduates in researching for the Law Lords, did much to infuse the judgments with quotations from academic articles. But not much more. I recall back in 1968, as the junior counsel for the appellant in Madzimbamuto[287] before the Privy Council, a range ofhistorical and jurisprudential material was raised.
The argument, after nine days of oral hearings, included a) the Statutes of Treason of Henry VII; b) the writings of Grotius from the early seventeenth century; c) the cases from the US Civil War of 1861-65; d) the defence of necessity; and e) most particularly, the theories of Professor Hans Kelsen, whose concept of Grundnorm has vast outpourings from academia. Nothing like that has happened since, although the curial scenery has markedly changed in the composition of both parties. The reason is, I think, underlying, if not simple; the common law of England has always prided itself on its pragmatism. Usually it has turned its back on conceptualism. Has it remained as such, particularly since the Constitutional Reform Act 2005? But at least citations from legal journals seeped into judicial habit well before it became standard practice among appellate judges.It suffices to quote the postscript of the judgment of Lord Goff of Chievely (himself an academic convert to successful practitioner and judge and eventually Senior Law Lord) in Spiliada Maritime Corporation v Cansulex Ltd.[288] He wrote:
I feel I cannot conclude without paying tribute to the writings of jurists which have assisted me in the preparation of this opinion. Although it may be invidious to do so, I wish to single out for special mention articles by Mr Adrian Briggs in (1983) Legal Studies 74 and in [1984] LMLCQ 227, and the article by Miss Rhona Schuz in (1986) 35 ICLQ 374. They will observe that I have not agreed with them on all points; but even when I disagreed with them, I have found their work to be of assistance. For jurists are pilgrims with us on the endless road to unattainable perfection; and we have it on the excellent authority of Chaucer that conversation among pilgrims can be most rewarding.
What, I wonder, does the legal pilgrimage indicate about the consequences for legal development in 2014?
WHY THE EARLIER SEPARATION?
The academic tendency of those destined to practise law was associated with the choice of university training in subjects usually unconnected with the law.
If the tradition of English lawyers had been to attend one or more universities (usually Oxford or Cambridge), likewise it was rare for them to read topics (such as law) as an undergraduate or indeed as a graduate of an established legalistic course; law faculties taught occupational (rather than theoretical) subjects, initially as separate faculties of a university. The law only surfaced in studies of philosophy and jurisprudence, or in such subjects as Roman law, remote from action in the English courts. Too little assimilation took place with other faculties. Even medical jurisprudence was a late arrival on the academic scene, and even now makes little more than a nodding acquaintance with interdisciplinary teaching (one should observe the lack of understanding among medics and lawyers in the practice of expert witnesses in and out of court). Until the 1960s there was virtually no empirical research of the legal system in action. The publication of Separated Spouses[289] was the first to observe how the decision of magistrates in relation to cohabitation clauses in matrimonial proceedings was out of kilter with what was expounded in the textbooks on family law. As part of legal philosophy the law played its part in the development of social science, but it tended to be dominated by scholars from other disciplines than teaching law. It is often forgotten that the leading post-Second World War academic, Professor Herbert Hart, had spent many years before the war as a leading practitioner in the Chancery Division of the High Court. But he was a notable exception, and even then there was little evidence of close attachment to his erstwhile colleagues at the English Bar.It is significant that the outstanding judicial voices of the last century (less so, now) all reflected their separate educational backgrounds, whatever may have been their personal inclinations towards the legal system that they entered. Most of the student topics sought by aspiring practitioners were generally either classics or mathematics.
Lord Reid was an exponent of the latter (initially in Scotland), and a former Lord Chief Justice of England and Wales, Lord Parker, had read natural sciences. More recently, Lord Bingham had read history at Balliol College, Oxford, under the historian Christopher Hill, notably peppering his impressive judgments (1981-2008) with perceptible historical developments of the common law. The only account - possibly apocryphal - was that in the middle of the last century, it was rumoured that the Law Lords regularly consulted with the editor of the Law Quarterly Review about the decisions of the final court of appeal. The editor, Professor Arthur Goodhart, an American scholar and Master of University College, Oxford, had a mystical effect over the law of England, which had stuck rigidly to the pragmatism of a case-by-case development, such that it happily eschewed any attempt at conceptual thinking. Similarly, the legal literature was sparse and was only spasmodically connected with practitioners - notably the nascent importance of civil procedure until the 1960s under Master (Sir Jack)Jacob.The exception was the growth of specialism in legal practice. The development of public international law - more particularly the international law of human rights, stimulated by the European Convention on Human Rights, attracted to it exponents of global law in the wake of the impact of individual human rights. The work of Professor Hersch Lauterpacht in the interwar years has had a profound influence on bringing the English practice of law on to the European and world stage, with his classical book in 1933, The Function of Law in the International Community,[290] which is an academic study all on its own. The names of McNair, Waldock, Fawcett, Higgins and Bratza - mostly from academia - are some of the prominent English lawyers to have achieved eminence abroad. Civil servants from England, notably, had helped to set up the Council of Europe in 1948, but only as members of a team of international lawyers drafting chunks of the European Convention on Human Rights in the years after the Second World War.
Their involvement in drafting the Articles of the Convention is often mentioned, but should not be over-emphasised in establishing its international input.One ought to note one major change in judicial composition in recent years. Until the end of the last century, no academic lawyer had been appointed to the High Court Bench in England. Lady Hale’s appointment - ultimately to the House of Lords in 2004 - was acclaimed, although belatedly. During more recent years, many academic lawyers have attained judicial prominence, outstandingly the late Lord Rodger of Earlsferry, uniquely a law don at Oxford, a Scottish Law Minister and judge (Lord Advocate, President of the Court of Session) and ultimately a Law Lord. Today, the higher judiciary features a large cohort of academics - in the Court of Appeal alone, we see Lord Goff in the 1980s and more recently Lord Justice Elias, Lord Justice Beatson and some others like Lord Sumption (a military historian) with part-time experience of law teaching (the newest High Court judge (in October 2013), Nicholas Green QC, was also once a law teacher). There is perceptibly now no undue reaction to appointment from among teachers of law. It is almost expected that an academic can be appointed directly to the Supreme Court - but not yet! The transformation has not been due to any concerted legal attitudes within the profession. I venture to think that cultural attitudes have forced the change; indeed the prominence devoted to diversity in judicial appointments has not been attained yet. The lower echelons of the judiciary come mostly from practitioners - barristers and solicitors.
The reason for this sharp distinction between the practising and theoretical world of resolving disputes lay in the fundamental approach of the common law, distinct from Continental systems of Roman-Dutch law. To summarise: the English trial system of orality - that is, the resolution of litigious disputes, following oral testimony of the witnesses to the event - demands confrontational advocacy rather than legal expertise in written statements.
On the other hand, the European system that relies principally on the written word (composed by the witness, together with legal assistance) relies more upon legal expertise than spoken language. Advocacy calls for skills of human communication and dialogue in the public forum. Evidence by way of documentary material calls for skills in written and interpretative composition. Legal services differ markedly in their exposition. I should explain further.Trial by jury (until 1934, it included civil litigation) is quintessen- tially a system of procedure demanding the examination of live witnesses. The litigant seeks to persuade his case, invariably in the criminal jurisdiction before laymen, unqualified in the legal process, whether the magistracy (increasingly lay, but also professional district judges) or random jurors. Thus the leaders of rival disputes are involved in an interpretation of civil events by a qualified arbiter (a judge). The interpreters of the civil law in Europe are pre-eminently the leading academic lawyers - the professors of law are its leading practitioners. Hence the legal system instinctively produces a sharp divide between the professionals serving the litigant. They lean towards expounding the theoretical or conceptual aspects of the legal system.
The dichotomy is essentially induced when comparing the defence of the criminal offender with the claim made in civil proceedings. The attitude between the criminal practitioner and the criminal law is most marked, and continues to place criminal justice a system apart. Even in their procedural aspects, the criminal courts operate on a different basis: the mode of trial in Europe is a search for the truth of a criminal event; specifically it is not aimed to establish a level of evidential proof, which is labelled as adversarial. The prosecution’s duty here is to prove its case beyond a reasonable doubt - whatever that phrase encompasses, it is a high standard of proof. The advent in the 1970s of judicial review - and its absence of oral testimony - began the shift away from the principle of orality. Other reforms in evidential procedure also tend to proffer testimony that limits or extinguishes evidence given in the witness box by live witnesses. The continuing protection of vulnerable witnesses - e.g. children in care cases - is designedly to avoid personal confrontation. There is another dimension to the legal services performed. Increasingly the two arms of practice vary through the handling of documentary testimony. Each requires a skill that has the same reference point. Developments in mediation and reconciliation, away from courts of law, attract practitioners from all quarters of life - not simply oral advocacy. The jury-advocate and the theatre of the criminal court are largely things of the past; even today he and the court are hardly discernible in a less punitive atmosphere. But the reform of the binary systems - adversarial and inquisitorial - is far from complete, although each tends to borrow details from the other.
JUDICIAL BIOGRAPHY
If that is a credible explanation for the coming together of the two branches of the profession, what, you might ask, have been the implications for the law? The interplay of legal commentary on the law in action is replete, but it defies exposition that calls for profound study. Suffice it to say, that no debate of a legal issue nowadays goes without reference to academic opinion. That interplay is certainly what Harold Laski had in mind when, at the beginning of the twentieth century, he wrote a personal letter to Justice Oliver Wendell Holmes saying that he wished people ‘could be persuaded to realise that judges are human beings, and that it would be a great help to jurisprudence’. Richard Posner objects to the idea because he says that ‘we did not learn much about the judicial process from judicial biography’. It may be so, but that depends on the quality of biography. Laski would have been commenting as much on the different views of English and US judicial pronouncements. At that time the disparity was even more evident. English judges (particularly appellate) were notably singled out for the clarity of expression in delivering their individualised judgments, either of assent or dissent. In 1925, Judge Cardozo of the US Supreme Court said this:
For quotable good things, for pregnant aphorisms, for touchstones of ready application, the opinions of the English judges are a mine of instruction and a treasury of joy.
Justice Cardozo might have had in mind one of many examples that flowed from the pellucid pen of Lord Macnaghten, although he singled out for special mention Lords Blackburn, Esher, Bramwell and Bowen. Contemporaneous with Cardozo’s praise, ‘Q’ (Sir Arthur Quiller-Couch), when compiling his Oxford Book of English Prose, included only three extracts from the Law Courts (in fact, short snippets from well-known pieces of elegance). But this is meagre fare, and it was not intended to promote legal debate. There was little evidence of what I call ‘intellectual biography’, either judicial or academic.
But apart from judicial opinions in judgments, English judges did little else extracurricularly. Infrequently they delivered public lectures (which appeared in legal journals). Their literary output rarely emerged outside of their judicial activity. Official opinion has, however, begun to move in the direction of greater openness. Only when the Kilmuir rules on judicial activity outside of court were finally removed by Lord Mackay in the 1980s did the transparency of judicial lives begin to emerge. It had the effect of openness about the judicial process, culminating only in the twenty-first century with the acknowledgment of radio and television playing a part in the publicity of court proceedings. It began, desultorily, with the televising of judgments in the Supreme Court in its past guise as the Appellate Committee of the House of Lords.
Academia was not directly involved. What was more significant was that books about the courts came mainly from academics, and even then bore a distinct mark of being politico-legal. There have been few judicial biographies, compared with the United States. Which of our great judges - I exclude the idiosyncratic autobiographies of Lord Denning and one hagiography from Irene Freeman - has been so treated?
There is a perceptible apathy to judicial biography. The biggest barriers at present seem to be those of academic, and especially legal academic, disapproval.[291] Such objections seem to be in principle a typical outcome of example of deformation professionelle, no more valid in principle than academic objections to biographies of scientists, authors, composers or anybody else. The only distinction that matters is that between good biography and poor biography. Judicial biography is simply another branch of the tree of biography, potentially no less fruitful than any other. It deals with members of a particular profession with its own conventions and peculiarities, but inevitably it incorporates the traditional views of the professionals - ie academics and practitioners. With the publication in 2009 of The Judicial House of Lords,[292] I lay claim in a joint effort - with academics and practitioners - to a remarkable study of a remarkable institution. If not strictly a case of judicial biography it revealed a good deal of what lay behind the decisions of human institutions of the legal system. I should include the writings, in legal and non- legal journals, of Lord Justice Laws and Sir Stephen Sedley - both outstanding intellects in the judiciary, and rarae aves!
Few judicial lives reach a high level of drama; and it is also undeniable that judges in the English system are normally and necessarily middle-aged before they become judges, and the more so before promotion to the Court of Appeal or Supreme Court - ‘elderly gentlemen’, in Lord Haldane’s description. Exceptions can be found. Mr Justice Williams, while on circuit in Nottingham in 1884, did not turn up in court one morning. After searches were set in motion he was found dead in a brothel; and in the 1920s the private life of ‘the bachelor judge’, Mr Justice McCardie, was adventurous by any standards, with a fondness for making the headlines, distressing to his judicial brethren, a mistress in London and a fatal addiction to gambling. Others have not escaped public notoriety. Take for example the unsuccessful prosecution of Lord Justice Richards. (As an aside, we need to encourage such writings, if only to minimise the unhealthy attitude of our judges behaving as citizens placed publicly on a pedestal, to be revered as a class above the rest of us.) Do I make a valid point when I think that the chairman of a public inquiry into press ethics under the Inquiries Act 2005 was Sir Brian Leveson, not Lord Justice Leveson, a judge of the Court of Appeal acting judicially?
THE ACADEMIC CONTRIBUTION
If you accept the gist of my cases, that judges are no less fit subjects of biography than anyone else, how should their lives be written, and what has legal academia contributed? In terms of a long pedigree and a growth industry, America undoubtedly leads the way, with an average annual publication of three to four biographies of Supreme Court judges. Cardozo, Holmes, Learned Hand, Brandeis, Frankfurter, Brennan and others have been frequently studied. The American approach is impeccably scholarly. Judges’ papers and correspondence are reverently stored in university repositories or published in sumptuous editions by university presses, as in the case of Justice Oliver Wendell Holmes. The judges themselves are the subjects of numerous well-regarded biographies, usually by their law clerks. Yet on the whole, American judicial biography is not just scholarly; it has been overwhelmingly the output of academics. It is ‘intellectual biography’, the analysis of a judge’s rulings and the discussion of the particular ways in which he reached them.
Professor Posner has his sceptical counterparts outside the United States: Professor Girard at Dalhousie and Professor Richard Gwynedd Parry at Swansea both worry about the academic respectability of judicial biography. Gwynedd Parry’s question ‘Is legal biography really legal scholarship?’ (2010)[293] implicitly has in mind the inhibiting constraints of modern academia - will legal biography pass muster at the REF or run the gauntlet of peer review? Where, he asks, with alarm, are its methodologies, its canons, its ‘templates’? He believes that if it is to attain academic acceptance, judicial biography must formulate its own ground-rules, approved by ‘a scholarly guild of legal biographers’. This sounds a dismal and horrifying prospect. But judicial biography has yet to pass the test of academic approval.
ACADEMIC STUDIES OF JUDGES
But if legal academia in the UK runs second best, one must imbibe Robert Heuston’s monumental Lives of the Lord Chancellors from 1885 to 1970,[294] the first of two volumes which he published when a professor of law. It is both a masterpiece of scholarship and a paradigm of good writing; but it may be wondered whether Heuston, a distinguished and stimulating teacher of constitutional law, would, in the conditions prevailing in British universities today, have been granted the leisure or the funding to complete those carefully researched and elegantly crafted lives. Of this triumph of what Heuston called the ‘life and letters tradition of English biography’, one is delighted that it is being carried on by Michael Beloff QC (a distinguished practitioner and at one time the Master of Trinity College Oxford - he is writing about the next batch of Lord Chancellors, up to the conclusion of the office of Lord Chancellor under the Constitutional Reform Act 2005). In place of the older English tradition, R Gwynedd Parry suggests the wisdom of ‘intellectual biography’, in other words the American tradition. And a first-rate instance of this approach is Professor Smith’s study of Mr Justice James Fitzjames Stephen. The tradition of the English concept of mens rea was exemplified in his textbooks.
Ideally, the judicial biographer should also pay attention to the judge’s style. There, if anywhere, is his crown of glory. As Lord Sumner wrote of Lord Macnaghten, his ‘life is largely written in 26 volumes of the appeal cases’, and wonderful judgments they are too, combining mastery of the law with wit and irony.[295] It was with posterity in mind that Birkenhead published a complete and literally monumental edition of his own judgments.
The Legal Biography Project was set up in 2007 by the Law Department of the London School of Economics as a forum for lectures and seminars for scholars with an interest in the subject. The outcome in terms of books remains to be seen. It was inspired by a publicly unknown solicitor called Cyril Glasser, who had a splendid collection of judicial scribblings. R Gwynedd Parry feels, somewhat coyly, that ‘legal biography is on the verge of acquiring a degree of intellectual respectability’. I hope so. The judicial biographer must plunge boldly into the waters, not dabble his toe in them.
CONCLUSION
I began with the depressing experience 60 years ago of a divided profession that engaged in professional dialogue only intermittently and at arm’s length. Today the picture is very different. If the pilgrimage of the two, developing a legal system in a modern liberal democracy, is a welcome sight, not all the vestiges of the past relationship have disappeared. The literary output among legal professionals still lags behind the Americans: one yearns for the publication of the biographies of, say, Lord Reid, Lord Wilberforce, Lord Scarman and, of course, Lord Bingham.