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Evan Whitton
20 October, 2004  
Academics are the ones who take law seriously - yet they take no strides to fix the ills of the adversary process

Recalling the troubling insights of A.P. Herbert, Sir Thomas Erskine May, Jeremy Bentham and Alan Dershowitz (among others)

imageAlan Patrick Herbert (1890-1971, pictured) was called to the Bar in the Inner Temple in 1918, but never practised, possibly because he feared he could not keep a straight face in court.

Nonetheless, he was hugely gifted; subscribers of a certain age will not easily forget his 1947 operetta Bless the Bride and the Greek chap, Georges Guetary, belting out Ma Belle Marguerite. Some may even recall his Board of Inland Revenue v Haddock (Punch, 1933), and the Master of the Rolls damaging admission that injustice is built in to the adversary system:

“The institution of one Court of Appeal may be considered a reasonable precaution; but two suggest panic the legal profession is the only one in which the chances of error are admitted to be so high that an elaborate machinery has been provided for the correction of error In other trades to be wrong is regarded as a matter of regret; in the law alone is it regarded as a matter of course”

APH called that piece Why Is the House of Lords? but so far as I know he never raised a similarly pregnant question: Why Are Legal Academics?

Law schools are a quite recent invention. Barristers ran what they called, in their droll way, legal education from the 13th century, and by the 17th they had control of the civil process. Sir Thomas Erskine May noted the result at the beginning of the 19th in Constitutional History of England 1760-1860 (published 1861-63):

“Heart-breaking delays and ruinous costs were the lot of suitors. Justice was dilatory, expensive, uncertain and remote. To the rich it was a costly lottery; to the poor a denial of right, or certain ruin. The class who profited most by its dark mysteries were the lawyers themselves. A suitor might be reduced to beggary or madness, but his advisers revelled in the chicane and artifice of a lifelong suit and grew rich.”

It may be thought that legal academics could hardly do worse, but would suitors in the 21st century notice much improvement?

imageWilliam Blackstone (pictured), a fat, near-sighted charlatan with a grating voice and a fondness for port, was the first and most influential academic. He began lecturing on the common law at Oxford in 1753 in what Jeremy Bentham saw as a “spirit of obsequious quietism” which “scarce ever let him recognise a difference” between what the law is and what it ought to be.

In law schools today, that posture equates with legal positivism, defined by that splendid work of reference, Butterworths Concise Australian Legal Dictionary (Butterworths, 1997), as:

“Laws are considered in the context of the legal system of which they form a part, without drawing any conclusions about their essential justness or merit.”

imageThat may sound like a copout, but Harvard law professor Alan Dershowitz (seen here), who does a bit of court work on the side, is inclined to absolve his colleagues and the reptiles of dereliction of duty. He wrote in The Best Defense (Vintage, 1982):

“A conspiracy of silence shrouds the American justice system. Most insiders – lawyers and judges – wont talk. Most outsiders – law professors and journalists – dont really know.”

Hence perhaps the 1993 remark by Yale law professor Robert W. Gordon, as quoted by appellate judge Richard Posner in Overcoming Law (Harvard UP, 1995):

” most legal academics are among the few people left in their profession who take law seriously.”

It’s nice to know they take it seriously. But medical academics seek a cure for cancer; citizens who also help to pay legal academics’ emolument may reasonably expect them to begin, after 250 years, to seek a cure for the cancer Sir Alan (as he became in 1950) Herbert observed in the adversary process.