United Kingdom Journals

The literature of the law: a thoughtful entertainment for lawyers and others. Selected and introduced by Brian Harris, OBE, QC London: Blackstone Press, 1998. xviii, 340p. ISBN: 1 85431 733 4 £19.95 (pbk.)

Reviewed by Peter Luther,

Lecturer in Law,
University of Essex.

<petel@essex.ac.uk>

Copyright © 1998 Peter Luther.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

The editor and publishers of this book may be surprised to find that it has received a full-length review. It is intended, as its subtitle makes clear, primarily to entertain the reader, and its production must have been light relief for the busy and distinguished lawyer who has compiled it. It is an anthology, in the words of the editor's introduction (p.xi), of "examples of the very best in judicial pronouncements over four centuries and two continents". It is no criticism to say that many old favourites are here - Lord Camden in Entick v. Carrington (1765) 19 St Tr 1029, Lord Mansfield in R. v. Wilkes (1770) 4 Burr 2527 and Sommersett v. Stewart (1772) Lofft 1; 98 ER 499, Lord Atkin in Liversidge v. Anderson [1942] 2 AC 206, Felix Frankfurter in West Virginia State Board of Education v. Barnette (1943) 319 US 624, for example - the editor is (rightly) unafraid to include familiar material. But his selection is perhaps unusual in that it includes extracts from relatively recent (indeed, in some instances, very recent) judgments: Lord Mustill in R. v. Brown [1993] 2 All ER 75, Laws J. in R. v. Cambridge Health Authority, ex parte B. [1995] 1 FLR 1055, Lord Lloyd of Berwick in R. v. Gloucestershire County Council, ex parte Barry [1997] 2 All ER 1, even the opening remarks of Judge Hiller B. Zobel in the Louise Woodward case. Many anthologists might shy away from including material which has yet to prove that it can stand the test of time; Brian Harris's selection is (in 1998, at any rate) more interesting because he has not hesitated to take this risk. Another risk consciously taken is the inclusion of lengthy extracts from some judgments - 11 pages of Hoffman LJ in Airedale NHS Trust v. Bland [1993] 1 All ER 821, 12 of Lord Simon of Glaisdale in Tzu-tsai Cheng v. Governor of Pentonville Prison [1973] 2 All ER 204, 13 of Lord Mustill in R. v. Brown [1993] 2 All ER 75, 14 of Felix Frankfurter in Barnette (1943) 319 US 624, 18 of Sir Robert Megarry in Malone v. Metropolitan Police Commissioner (no.2) [1979] 2 All ER 620. Again the editor takes a chance here; we will return later to the question whether his gamble pays off.

Despite the reference noted above to judicial pronouncements, the book also contains a fair amount of other material. Some of this consists of extra-judicial remarks made by judges - a speech by Learned Hand, an extract from Lord Scarman's report on the events in Red Lion Square, William O. Douglas's assessment of Clarence Darrow, for example. Another part comprises examples of advocacy. Here the usual suspects are rounded up: Marshall Hall, Birkett, Darrow - even, though this has little to do with the traditions of common law advocacy, Edmund Burke's attack on Warren Hastings. There is a cursory nod in the direction of fiction: three brief extracts from Dickens's Pickwick Papers are included. It is all too easy to criticise an anthologist for his omissions - and it is an exercise of doubtful value, since it does little more than elaborate the fact that the reviewer (who has had neither the wit nor the energy to compile his own anthology) would have made a different choice - but nonetheless one cannot help feeling that this is too brief a taste of the novelist's art. If nineteenth century fiction is to be included, why not an extract from Trollope's Eustace Diamonds ? Or, if we must be limited to Dickens, why only Pickwick Papers ? The amiable description of Dodson and Fogg's office is all too bland; why not a taste of the infinitely more astringent Bleak House, a novel in which the machinery of the law (or, more precisely, Equity) almost assumes the role of villain ?

Brian Harris has been an active editor. Not only has he trimmed his texts heavily and judiciously to make them as palatable as possible to the non-legal reader, but he has provided an introduction to each chapter which summarises its themes, linking text, and occasional biographical notes. He states in his introduction (p.xi) that the book is "not a polemic (far from it)", but it is inevitable that this diligent approach will betray his own opinions from time to time. This is not necessarily a failing: for the most part, and whether or not one agrees with him, it makes the volume more readable. One is told, for example, that the judge's decision to overturn the jury's verdict on Louise Woodward "seemed to at least one observer to be both wise and merciful" (p.21), and asked, in another context (p.113), whether we "should not reflect on whether the rules of evidence favour the accused unduly ?" On a broader front, it is clear that Harris has mixed feelings about the desirability of a written constitution: he includes a chapter ("The incoming tide") of extracts from US Supreme Court to show the sort of problems that the US Constitution has posed. Here he seems to favour the approach of Felix Frankfurter over that of William O. Douglas. This, though, is one of the occasions when one could wish that Harris had said more. He includes Frankfurter's dissent in Barnette (the West Virginia "flag salute" case) almost unedited, but his only comment at the end of it is the two sentences:

In this decision Frankfurter was criticised by some for failing the liberal cause. In fact, he was simply attempting to apply the law as he saw it. (p.161)

This says next to nothing. The fascinating issue for a student of US constitutional law is the way that Frankfurter's notion of the "the law as he saw it" changed, the fact that he ceased to view the law through liberal eyes. The reader new to this field might have benefitted from being alerted to this, though he may well gauge the tension in Frankfurter's mind from the extract which Harris has selected from Dennis v. United States (1951) 341 US 494, in which the judge acknowledged that the Smith Act was (at best) unwise, but refused to equate this with it being unconstitutional. One incidental point should be made here: whether or not one agrees with Harris's annotations and opinions on these issues, he deserves praise for including a large proportion of United States material in this book (and it is by no means limited to the chapter on the Constitution). It is all too easy for English writers to forget other common law countries. And a disclaimer in the introduction (p.xii) makes it clear that he might have wished to cast his net wider: "...it was my own limitations rather than any disregard for Scottish, Irish and Commonwealth sources that constrained the scope of this selection".

It is not enough, however, for a reviewer to do no more than criticise, or praise, the editor's selection. For this book poses a much wider question: do its contents qualify as "literature" in the sense that its editor clearly intends ? Obviously they are "literature" in the basic sense of the word, but then so is the literature of other professions - medicine, accountancy, engineering and the like - and yet such writing could scarcely be claimed to appeal (and does not aim to appeal) to the general reader. This is what Brian Harris wishes to do; his work is, as the subtitle says, "for lawyers and others". He makes large claims for the writers he includes: "when a penetrating legal intellect is combined with outstanding felicity of expression the results can be electrifying, even to the non-lawyer" (p.xi). The attempt to electrify non-lawyers is a bold one given the low esteem in which the lawyer's use of language has traditionally been held. Legal language has often been seen as mind-numbing and incomprehensible, even to those who use it: Dickens (Bleak House, ch.1) famously described lawyers "running their goat-hair and horsehair warded heads against walls of words". These characteristics have often been viewed in a sinister light: Bentham (Rationale of Judicial Evidence, ch.17) described the "object and use of lawyers' language" as "to secure habitual ignorance, or produce occasional misconception" (with the motive, of course, of boosting the incomes of practitioners and judges). It has always been easy to get a cheap laugh by showing a lawyer talking unintelligible nonsense: Ben Jonson did it, so did the Marx brothers. Can an anthology such as this swim against so strong a tide ?

The regretful answer must be "Only up to a point". Harris has certainly succeeded in identifying the "penetrating legal intellect", but the "outstanding felicity of expression" is harder to find. This is scarcely to be wondered at: most judgments (the speeches of advocates are a class apart) are concerned simply to impart information and to justify a conclusion. The stock-in-trade of the "literary" writer - wit, irony and sarcasm, intentional ambiguity, the deliberate "loose end", the oblique hint of a sub-text, elegant variation and so on - might well tend to get in the way of the information, to weaken the justification. There is a neat example of the danger of this in Harris's introduction to Airedale NHS Trust v. Bland [1993] 1 All ER 821, the case of the Hillsborough Stadium victim Anthony Bland, whose injuries had left him in a persistent vegetative state. In the course of his remarks Harris quotes, and he is by no means the first to do so, a celebrated couplet (p.200):

Arthur Hugh Clough wrote,

"Thou shalt not kill; but needst not strive
Officiously to keep alive."

In law however the position is less clear.

It is perhaps unfair to criticise Harris for this brief statement, involving as it does verse rather than the text of the Law Reports. But it seeks to make a point, and it fails to do this precisely because Harris has misunderstood (or chosen to ignore) the heavy irony of Clough's words. Clough was not saying that it was acceptable to let a person die. Quite the reverse: he was equating this with murder. The neat octosyllabics of his new look at the Ten Commandments (The Latest Decalogue), one couplet for each Commandment, were a harsh criticism of the mid-nineteenth century morality that encouraged the rich to get richer while the poor died of starvation and disease. A glance at any other couplet makes this clear - for example, "Thou shalt not steal; an empty feat, / When it's so lucrative to cheat". Clough could afford, as a poet, to run the risk that he would be taken literally; a judge cannot do so.

This is not to say that all judgments lack style, or that none of them has the electrifying effect that Harris claims; simply that the judge must in many cases paint his picture with a limited palette. That is, after all, what his audience expects. Sir Edward (formerly Lord Justice) Eveleigh rather gives the game away in his foreword when he begins:

A busy lawyer is usually interested in cases only for the point of law which they have decided or affirmed. He goes straight to the page where the headnote tells him he will find the legal principle upon which the decision is based: he seldom has the time or the inclination to read every word of a judgment in the law reports. (p.vii)

He goes on to admit that "I myself, over the years, have looked at a number of the cases referred to in this book but I have missed much that Brian Harris has selected". It is the message, not the medium, that matters. Indeed, one might go on to say that - at least in previous centuries - even the ability to speak or write clear, concise English has not always been necessary: two nineteenth century holders of the highest judicial office, Lord Eldon and Lord Hatherley (better known as Sir William Page Wood), were famously opaque and prolix.

When do we feel the electrifying impulse to which Harris refers ? It is interesting that, as he notes in his introduction, many of his extracts - and certainly most of his best extracts, in the reviewer's opinion - come from dissenting judgments. In such cases a judge may feel free to ignore some of the conventions: he knows that the majority has decided the case one way, and he becomes, in a sense, counsel for the opposing (and defeated) view. He can afford to use the rhetorical devices and tricks of language more typical of the Bar than of the Bench. There is a famous - possibly the most famous - example of this in the speech of Lord Atkin in Liversidge v. Anderson [1942] 2 AC 206. Harris includes two paragraphs of this (p.28-29). The first concludes with the sentence, "In this case I have listened to arguments which might have been addressed acceptably to the Court of King's Bench in the time of Charles I". The second ends still more pointedly:

I know of only one authority which might justify the suggested method of construction: "When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean, neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master - that's all."

This is electrifying, but it is so because its style and language is so untypical of the law reports. It is not merely that Atkin uses a quotation from a book for children (Lewis Carroll's Through the Looking Glass) to poke fun at the majority - deliciously offensive though that is - it is that he does so with magnificent economy of language. The colon after "construction" and before the quotation signals a pause; into that gap Atkin could have slotted (as many another judge would have done) reams of legal fustian, words of insincere apology for what was to come, signals of an impending joke, and so on. He did not do so: the knife goes in without warning, and that is what the reader enjoys. It is worth noting - and it might have been useful if Harris had drawn more attention to this - that the unusual nature of these sections of Atkin's speech was immediately recognised. As Atkin's biographer has noted, in a chapter devoted to the case (Lewis 1983, pp.132-57), the Lord Chancellor, Viscount Simon, who had seen a draft of the speech, wrote (twice) to Atkin suggesting that he should remove the reference to Through the Looking Glass; Atkin politely refused. The earlier reference to "the Court of King's Bench in the time of Charles I" was no less controversial: the presiding peer, Lord Maugham, took the unprecedented step of writing to The Times in protest. Atkin's speech - or at least these sections of it - was, as his cousin (the novelist Berta Ruck) wrote, "a flash of brilliant lightning across all these clouds of confusion and nonsense" (quoted by Lewis, p.152), but it is exceptional in every respect.

Another point follows from these thoughts. Atkin's coruscating remarks in Liversidge v. Anderson came towards the end of a speech which is largely composed of painstaking and detailed analysis of the text of statutes and regulations. The wit and rhetoric is the icing on the cake. Most of the speech could never qualify for inclusion in an anthology; it is careful and learned, but highly technical and unexciting. To varying degrees this is a weakness (in this particular context) shared by some of the lengthier extracts Harris has included. They may be minor masterpieces of legal research, they may be clearly set out and well-expressed - look at the judgment of Sir Robert Megarry VC in Malone v. Metropolitan Police Commissioner (no.2) [1979] 2 All ER 620 for an example which meets all these criteria - but they are unlikely to be of interest to the reader who does not need the information they contain. Those who know (and love, as Harris clearly does) the law will enjoy them; one may doubt whether they will make much impact on the non-legal reader.

The danger (and futility) of criticising an anthologist's omissions has already been noted. Nonetheless, this reviewer would like to suggest one more candidate for inclusion in the second edition of Brian Harris's book. It has, it must be admitted, already become something of an anthology piece since Wallace (Wallace, 1882) first plucked it from an obscure volume of reports more than a century ago. It is the speech of Crew CJ in Lord Willoughby of Eresby's Case (1625) W. Jones 96, 82 ER 50, and it illustrates a point only occasionally made in Harris's work, that there are (rare) occasions when judges can use words worthy of dramatic verse:

I have laboured to make a covenant with my self, that affection may not press upon judgment; for I suppose there is no man that hath any apprehension of gentry or nobleness, but his affection stands to the continuance of so noble a name and house, and would take hold of a twig or twine-thread to uphold it: and yet time hath his revolution, there must be a period and end of all temporal things, finis rerum, an end of names and dignities, and whatever is terrene, and why not of De Vere ?

For where is Bohun ? where's Mowbray ? where's Mortimer ? &c. Nay, which is more and most of all, where is Plantagenet ? they are intombed in the urnes and sepulchres of mortality.

This collection will doubtless prompt its readers to consider their own candidates for inclusion. It will also make them think more broadly about the ways in which points of law can be expressed. This is to be welcomed, and it is hoped - despite the reservations noted above - that the book has many such readers.

Bibliography

Lewis, G (1983), Lord Atkin (London: Butterworths) pp.132-57.

Wallace J.W (1982) The Reporters, 4th ed., (Boston: Soule & Bugbee).