Promoting Change in the Legal System*
| DOI | http://doi.org/10.1111/j.1468-2230.1979.tb01549.x |
| Published date | 01 September 1979 |
| Author | Michael Zander |
| Date | 01 September 1979 |
THE
MODERN
LAW
REVIEW
Volume
42
September
1979
No.
5
PROMOTING CHANGE
IN
THE LEGAL
SYSTEM
*
AN
academic, by choice of occupation, experiences a variety of
occasions for giving lectures. But an Inaugural is, somehow,
different. For one thing the lecturer, very likely for the only time
in
his career, is honoured by the presence not
so
much of the usual
captive or semi-captive audience, but of both friends and colleagues.
For another, the topic he chooses tends to be of a somewhat broader
character than
is
otherwise usual. But perhaps what most dis-
tinguishes an Inaugural Lecture is that
it
is explicitly related to a
stage in one’s career-which appears to invite some form of
personal accounting.
When
I
became
a
law student at Cambridge exactly
25
years ago,
I
would have been astonished had anyone predicted that reform of
the legal system would become one of
my
chief interests. In those
days-the mid-1950s-we were all extremely meek and inoffensive.
But the experience of being a graduate student at Harvard and of
working for
a
year in
a
great Wall Street law
firm
changed
my
mood.
Partly it was the normal result of seeing one’s own system in sharper
focus from the vantage point
of
a different country. But partly it
was because
I
felt that the Harvard system of legal education and
the operation of the unified legal profession had features from
which we had something to learn. By the time
I
came back to
London in
1959,
after two years away,
I
felt committed to trying
to do something on both these fronts. The
next
three years were
spent in articles and
I
then worked for
a
short period in a City firm
after qualification as a solicitor. But
I
think
I
knew from the outset
that
I
wanted to be an academic rather than
a
practising lawyer.
It
was obvious that
a
life devoted to the problems of individual
clients would make it difficult, if not impossible, to find time to
study the operation of the system more generally.
Also,
quite apart
from the problem of time to pursue one’s interests, it seemed clear
that neither a solicitor’s office nor barrister’s chambers were likely
to be
a
background conducive
to
writings that might be critical
of
the system and especially of the legal profession.
If
the profession
today is sensitive about criticism,
15
to
20
years ago things were
a
great deal worse.
*
An Inaugural Lecture
dclivorcd
at the London School
oP
Economics on
November
9,
1978.
489
VOL
42
(5)
1
490
THE
MODERN
LAW
REVIEW
[Vol.
42
I
wanted an academic home and the only place
I
applied to, or
ever considered applying to, was the
L.S.E.
In
1963
at the age of
31
I
came to the School-and,
I
would say, lived happily ever after.
In the same year, by a stroke of sheer good luck,
I
became the
Legal Correspondent of
The
Guardian.
Since then
I
have been
involved, both as a member of various groups and as an individual
in attempts to effect change in
a
variety of fields-most
of
them
concerned with the working parts of the legal system (as opposed
to the substantive law). My purpose herc is to reflect on that
experience.
I
will not be considering the role of the judges for the reason that
in the field of legal-system reform the courts can,
I
think, do little.
The argument almost invariably has to be addressed rather to the
legislature, the civil service or to the government-whether of the
country or the profession. It
is
this, therefore, that forms the focus
of my remarks tonight.
The problems of effecting change have not becn the subject of
much academic analysis, but there is one work to which any
would-be reformer should turn, irrespective of his field. This is
F.
M. Cornford’s 20-page gem of a book
Microcosmographia
Acadernica,’
as relevant today as when it was first published
70
years ago. Cornford,
a
don at Cambridge, took
a
pessimistic view.
Addressing the young academic reformer he warned that nothing
was ever done
“
until everyone is convinced that it ought now to be
done, and has been convinced for
so
long that it is now time to do
something else.”
All
important questions were
so
complicated, and
the results
of
any course of action
so
difficult to foresee, that
certainty or even probability was seldom, if ever, attained. It
followed that the only justifiable attitude of mind was suspension of
judgment. It
was
then only necessary to persuade others to be
equally judicious and to refrain from plunging into reckless courses
which might lead them heaven knows whither.
This
was relatively
easy, especially by appeals to the Principle of the Wedge and the
Principle of the Dangerous Precedent. The Principle of the Wedge
was thmat you should not act justly now for fear of raising expecta-
tions that you might act still more justly in the future-expectations
which you are afraid you will not have the courage to justify.
The Principle of the Dangerous Precedent was that you should
not
now do an admittedly right action for fear that you, or your
equally timid successors, would not have the courage to do right
in some future case, which was essentially different but which
superficially resembled the present one. Every public action which
was not customary was either wrong or, if right, was a dangerous
precedent.
It
followed that nothing should ever be done for the
first time.8
_____-
___
-
’1
Microcosmographia Academica
(Bowcs and
Bowes,
5th
ed.,
1953).
2
Ibid.
at
p.
2.
8
Ibid.
at
p.
15.
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