Stephen Sedley writes about the state of the law, and about the wild wood that surrounds it

  • A Matter of Justice: The Legal System in Ferment by Michael Zander
    Tauris, 323 pp, £16.50, February 1988, ISBN 1 85043 040 3
  • The Coercive State: The Decline of Democracy in Britain by Paddy Hillyard and Janie Percy-Smith
    Fontana, 352 pp, £5.95, February 1988, ISBN 0 00 637083 7

When the judges assembled to compose a Loyal Address to Queen Victoria on the opening of the Law Courts, the draft before them began: ‘We your judges, conscious as we are of our manifold defects ...’ The Master of the Rolls exploded: ‘I am not conscious of having manifold defects.’ Lord Justice Bowen, who was a scholar with a sense of humour, suggested, to mollify him, that the Address might begin: ‘We your judges, conscious as we are of each other’s manifold defects ...’ I have to admit, in relation to the subtitle of Professor Zander’s book, that I was not conscious that the legal system was in ferment. But a lot depends on your point of observation. From inside a deeply conservative and complacent profession almost anything can look like the end of the world, starting with the change from foolscap to A4 stationery. I recall the leader of the Bar a decade ago alerting us by circular letter to the appointment of a Royal Commission on Legal Services, and describing criticisms of the Bar which had not yet been advanced to it us ‘ill-informed’. In our divided profession we find change upsetting and criticism unwelcome, unless they happen to affect the other side of the profession.

Nevertheless Professor Zander has filled a book with useful data about current or mooted changes, and one can see that from within the charmed circle they may well look like a state of ferment. To the world outside, however, I doubt whether it would make a ha ’p’ orth of real difference if all the current criticisms were accepted and all the reforms implemented. This is not only because what is going on is little more than an attempt to haul lawyers into the 20th century before the rest of society embarks on the 21st. It is also because the real interface between law and society is not located where most legal practitioners and many legal theorists believe it is. A literate Martian, for example, would not believe that Michael Zander was writing about the same society as Paddy Hillyard and Janie Percy-Smith, and at the same period of time. There is simply no space in Zander’s world-picture for the possibility that ours is a coercive state or that democracy is in decline here – while if Hillyard’s and Percy-Smith’s world-picture is even half right, Zander’s ‘ferment’ is mere froth.

I do not want to fall into the error of criticising Zander’s book for not being what it does not purport to be. It does not seek to address the question of what the legal system is for in our society. It assumes that the system’s role is what the system says it is: the regulation of relations between individuals (which include corporations), and between individuals and the state, according to objective rules which apply equally to everyone, serviced by mechanics called lawyers and judges whose terms and conditions and restrictive practices need watching like those of any other work-force. Within that comforting assumption it scrutinises with learning and acumen how well the system is doing by its own lights, which do not differ in any radical way from those of Professor Zander. ‘Judged as a collective enterprise,’ says Zander, ‘the contemporary English judiciary seems broadly to give tolerable satisfaction.’ Well ... by what standards and to whom? No doubt by its own standards the judiciary gives tolerable satisfaction to people who share its world and its values. Professor Zander’s arguments with the system, like Rat’s arguments with Toad, can be conducted without rancour by the shared fire-side. But from the wild wood outside the windows, inhabited by creatures who do not live by the same rules, worrying noises keep intruding.

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