WG Hart Workshop – opening address & law in context session

Am at the WG Hart Workshop, IALS, liveblogging.  Entered the lecture theatre to Harry Arthurs appearing virtually from Canada.  Vintage Arthurs, but have I come to the wrong conference?  No, Avrom is upfront, and all the usual suspects in the audience.  Harry states a fundamental opposition between academy and profession, emphasising distinguished scholarship over skills training, law schools as multi-function institutions, as a knowledge community — the only vision that will enable law schools to improve legal education.  Avrom explains — Harry had a prior booking, couldn’t make it.  Good points raised later.  William Twining cautioned us not to think about legal education as the undergraduate degree only — postgraduate was crucial, and is often an invisible element of the law school.

Next up was David Sugarman on Re-contextualising Dicey.  He observed the good/bad dichotomy in the reputation of Dicey.  DS considered whether the ‘lost lectures’ (recently found) on comparative constitutionalism lead us to rethink his place, and whether it points to a different Dicey?  He develops the spirit of the constitution, and acknowledges contingency, subjectivity in the lost lectures.  No longer can we see him as a unitory writer — the lectures give us more of a spectrum Dicey, engaging with political and historical context.  They are a valuable addition to the narrative of the demise of legal formalism (dominant around 1850s).  But now the formalism / realism divide is questioned by legal scholars — interest point.  DS puts Dicey into the context of German, US and English jurisprudence.  The transnational perspective helps us to understand Dicey’s intellectual life.  Legal scholarship in Dicey’s life focused on private law, and D. tried to sell constitutional law as not unlike private law, so, eg, courts lie at the centre of the constitution in his narratives.  British lawyers were active in the construction of the nineteenth century British state; but there is little legal education on it (ie public law?)  in the period.  Dicey’s ideas re law enshrines quintessential English qualities — small and unitary is good, English is best.  But says DS, we need to take a more varied view of Dicey, and the lost lectures help us to do so.

Sionaidh Douglas-Scott next, on legal theory and the image — an unorthodox approach to jurisprudence.  Why law and art?  First, because law can be illumined by art.  Normal relations are between rational logical approaches to law, rather than art, which is too imaginative, fuzzy.  But SDS believes that in the use of art we may recover the human in law.  In this cultural context the image is particularly powerful.  Second, law approves certain images of itself — wigs, gowns, sword & scale, reasonable man, officious bystander, etc.  Finally, it’s undeniable that law’s relationship to the image is complicated — quoted Alison Young, law as ‘co-implicated’ with images.  Law doesn’t just manage images.  She showed and discussed images of mutilated justice, Danish sculptor Galschiot’s ‘Survival of the Fattest‘ (representing the self-righteousness of the first world), placed in Copenhagen Harbour (the Little Mermaid, etc) at the time of the global Environmental conference, with chimneys behind them, belching out fumes.  Also his image of Justitia.  SDS concluded with general ideas about images  of justice — eg that we are surrounded more with images of injustice than we are with images of justice itself.  Interesting idea, that last one — (my thought) sort of a limited and limiting negative theology of justice.

David Howarth, on law in context and law as engineering — towards a New Legal Realism.  He described himself as a Realist when younger — is he still one…?  He had objections to Hart’s account of legal realism (good!), eg as rule scepticism.  DH points out that Llewellyn eg is not a rule sceptic — Ll. looked deeper than rules, eg his concept of situation sense — the deep activities in which the litigants were engaged, his work on Uniform Code, etc.  Ll. was actually a legal conservative, unlike eg a realist such as Fred Rodell.  Legal realism was really about looking deeper.  And that, DH said, is one of the key aims of the law in context series, and the International J of Law in Context.  How does law as engineering fit in?  Law, DH says, is a design industry — lawyers design useful things for clients: companies, trusts, wills, conveyances, in public law, legislation, treaties, bye-laws.  What can lawyers learn from this view, and what’s the ethics of this approach?  It has a different focus from law in context: let’s see law from the perspective of everyday users.  Legal realists complained about appellititis — obsession with the latest case.  DH agreed with Ll’s situation sense, eg drafting a contract without understanding a client’s trade is a recipe for disaster.  But DH parted company with law in context on issue of choice of objectives.  Some useful points differentiating law in context movement & realist movement.  I’d like to hear more about law as engineering and design…

A speaker was missing so William Twining, in the Chair, told two anecdotes to fill the time.  Law in Context started as a book series, to be called Law in Society or Law and Society; but these two titles were already taken — so law in context became the label.  Moral: don’t put too much reliance on a label.  Next story, Patrick Atiyah and William joined Warwick at the same time.  Patrick took Land to ‘Warwickize’ into Law in Context, William took Evidence.  WT told the story of how Atiyah would walk his students around the campus discussing forms of land ownership.  Land law was taught through transactions, largely.

At questions, good comment by Richard Moorehouse — are we biased against quantitative analysis and research in law.  DH agreed with him, observing that the key issue re quant research is, who is this work for?  What should we do with it?  Eg if a regulator is reading it, what does the regulator need to know to understand the research and use it?  William gave really interesting examples from a student’s doctoral work he had supervised; the panel was, it seemed, reluctant about the importance of quants.  And yet given the importance of meta-review in medical education, for example — quite simply, we need to improve in this area.