Law Under Pressure
| Author | Neil Walker |
| Published date | 01 January 1994 |
| Date | 01 January 1994 |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01928.x |
REVIEW ARTICLE
Law
Under Pressure
Neil
Walker”
Carol Harlow and Richard Rawlings,
Pressure Through
Law,
London:
Routledge, 1992, xxi
+
364
pp, hb
f45.00.
In the work under review, Harlow and Rawlings continue their joint travels in the
borderlands between law and political science which began with
Law
and
Administration.’
Whereas their earlier journey was in the well-charted area of
general administrative law, this latest venture finds them in relatively unexplored
territory. Their focus of study is the use made of litigation by pressure groups2 as
a means of advancing social and political campaigns. Although, as the authors
argue, this is a well-researched issue in the United States
-
and they fully exploit
the American
corpus
as a comparative benchmark
-
there is, in contrast, a ‘black
hole’ (p 2) in the British political science and socio-legal literatures where
systematic analyses of pressure in the courtroom ought to have been developed.
The authors’ primary aim is to fill this void, and in this they are conspicuously
successful. They provide a detailed account of traditions and contemporary trends
in the use of litigation for the pursuit of social and political objectives. In
so
doing,
they elegantly straddle a series of interdisciplinary boundaries. They combine
historical research, legal doctrinal inquiry, comparative constitutional analysis,
sociological investigation and normative jurisprudence. Although this is never
explicitly set out, they ensure the overall coherence of their versatile approach by
developing their argument within the framework of three overarching questions,
which embrace strategic, explanatory and evaluative concerns respectively. First,
under what conditions are the various approaches adopted by groups engaged in
litigation-based activity likely to succeed or fail? Secondly, how and why has
pressure group litigation developed in the form and manner that it has? Thirdly,
how satisfactory are contemporary arrangements for accommodating pressure
group litigation, and how, if at all, might they be improved without prejudicing
other values associated with the legal order? The net result is an absorbing study
which will surely be accessible and interesting not only
to
the lawyers, political
scientists and lobby group activists who provide the publishers’ explicit target
audiences, but also to teachers, researchers and students across a broad range of
specialisms and courses, new and old, black-letter and beyond
-
from criminal
law, welfare law, tort (and delict) and environmental law, through legal process
and public interest law, to various cross-disciplinary enterprises connecting law to
the different social sciences.
Ultimately, however, the value of this work may lie as much
in
what it inspires
as in what it achieves. Arguably, the impressively full coverage which the authors
*Department
of
Public Law, University of Edinburgh.
1
London: Weidenfeld
&
Nicolson, 1984.
2
The focus
of
the book
is
on
‘cause’ groups rather than occupational
or
professional ‘interest’
groups,
although, as the authors acknowledge
(p
7),
there
is
some overlap between the two. See further W.
Coxall, Parries
and
Pressure
Groups
(London: Longman, 1981). See also
n
45 below.
130
D
The
Modem
Law Review
Limited
1994
January
19941
Law
Under Pressure
manage in what is essentially a pioneering study is a double-edged sword. On the
one hand, the authors offer
so
much interesting evidence and
so
many useful
insights in the first six chapters that the relatively slight framework of the final
chapter (30 pages) inevitably struggles to support the theoretical effort required to
apply this new material systematically towards the resolution of the three
overarching questions. On the other hand, the raising of
so
many new issues sets a
full agenda for future work, and although, as will become apparent, this is by no
means an easy agenda to follow, it is nonetheless a compelling and worthwhile one
for anyone concerned to explain and assess the normative implications of the
shifting relationship between the forms and undercurrents of litigation and wider
developments in law and society.
The following discussion is in various parts. An overview is supplied of the six
substantive chapters which shape the book, dividing into historical analysis
(Chapters One and Two), the most immediate concern of which is with the
explanatory dimension of the project, and contemporary analysis (Chapters Three
to Six), within which strategic and normative questions move centre-stage.
Thereafter, using the concluding chapter as a point
of
departure, an attempt is
made to push the research agenda a little further with the three overarching
questions still to the fore.
I
The opening two chapters announce the study’s historical and comparative
credentials by reviewing the development of pressure through law in Britain and
America respectively. The British chapter introduces and illustrates three major
analytical themes which recur throughout. The first, and most general, is that of
continuity (pp 59-60). From Lord Mansfield’s judgment in the landmark
abolitionist case of
Somerset
v
Stew~rt,~
there has, apparently, been very little
new under the judicial gaze by way of pressure group motives or methods.
Certainly, the received wisdom within legal circles that pressure-group litigation is
a modern phenomenon, imported from the USA
as
recently as the 1950s, is deeply
flawed
(p
1). Moral entrepreneurs sought to accumulate symbolic capital through
the courts at least as assiduously in Victorian times as they do today. For instance,
in the domain of sexual morality and pornography, many of the activities of
William Coote’s National Vigilance Association (NVA) prefigured those of Mary
Whitehouse’s National Viewers and Listeners Association (NVLA). Likewise,
some of the key lobbies one hundred years ago were in matters as currently topical
as child welfare, animal rights and environmental protection, a thematic resilience
reflected in the institutional longevity of key agencies such as the National Society
for the Prevention of Cruelty to Children, the Royal Society for the Prevention of
Cruelty to Animals and the Commons Preservation Society.
The idea of continuity also informs the authors’ other two themes, namely
networking and diversity (pp 60-61). In keeping with their robustly empirical
approach, the authors are more concerned to illuminate the detailed shape
of
networks associated with litigation than to provide a general understanding of their
structure and dynamics. Here, however, the emerging discipline of social network
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