REVIEWS
| Author | A. H. Campbell,A. H. Hudson,S. A. Smith,D. C. M. Yardley,E. J. Coiin,Allister Lonsdale,D. H. N. Joiinson,G. H. L. Fridman,O. Hood Phillips,H. A. Hammelmann |
| Date | 01 January 1959 |
| DOI | http://doi.org/10.1111/j.1468-2230.1959.tb00524.x |
| Published date | 01 January 1959 |
REVIEWS
THE
ADVOCATE’S
DEVIL.
By
C.
P.
HARVEY,
Q.C.
[London:
Stevens
&
Sons, Ltd.
1958.
xi
and
166
pp.
12s.
6d.
net.]
READERS of this
Review
should be familiar with
Mr.
IIarvey’s exhilarating
style and stimulating thought. In this little volume he pursues his nornial
course of shocking his readers, that is, if they
are
barristers, yet
at
the saiiie
time dazzling them with the pungency of his attack.
For
the object of his
book is to overthrow and trample in the dust
all
the normal defences of the
morality of the advocate’s profession,
as
well
as
to call into question many of
the other cherished illusions of orthodox lawyers. Lord Monckton, one
of
the
leading advocates of his day, who contributes
a
foreword, aptly sums up what
will be the feelings of most of his fellow advocates who read the book when
he says that he has found
it
“provocative, even in places irritating, but stimu-
lating, amusing and well worth reading and therefore possessing .
.
. The
arguments are presented with subtlety and wit
.
. . Stung, discomfited, and
entertained though
I
have been by the book. . .
.”
I
am
a
little puzzled by the title chosen
for
this book by
Mr.
Harvey,
whose role
is
of course that of the devil’s advocatc, and who in writing it has
certainly not assumed the position of “devil” to any of the great advocates
such
as
Simon, Macinillan and Hilbery
J.
whose special pleading in defence
of advocacy he treats
so
irreverently. But
a
devil’s job is to assemble
material for his master, and this devil has certainly brought together
a
wealth
of illustration and quotation, much of it both unusual and unconventional
which he uses effectively in the deployment of his argument, and which cantlot
fail to entertain his readers.
Although the chapter on advocates is the outstanding one-I do not pro-
pose
to
reveal the thesis which Mr. Harvey propounds
so
convincingly (up
to
a
point)-he does not spare juries, judges, solicitors and the common law, on
whom he
also
includes chapters. Juries he naturally regards as the illegiti-
mate prey of the skilful advocate, but only
a
little more
so
thnn are judges.
And certainly
I
have seen both juries and judges who were artfully played
up in the way
Mr.
Harvey describes. But juries differ
a
great deal and even
Mr.
Harvey would have his work cut out with some Lancashire juries
I
have
met. As for judges,
as
he says, they
are
human beings, not all of whom are
so
gullible
as
Mr. Harvey makes out: some of them are
as
shrewd and able
as
the late Rigby Swift; it went hard with the too clever advocate who tried
a
fall with that redoubtable north-countryman.
In respect of solicitors Mr. Harvey’s main concern is to prevent fusion.
He makes his case largely by the skilful use of anecdotes from Anicrica,
which leave one wondering how milch actual experience he has
hnd
of
Irpd
work in that country. and hy
a
somewhat unrealistic account
of
thc rrlatim-
ship of barrister, solicitor and witness
as
it works out in practicc in
Kr~plaild
-or
are
the Bar Council’s pronouncements more Strictly ul)servcd now than
they were when
I
was in practicc?
When he gets to the common
law
Mr. Harvey rrtiirns to earth and
demolishes that prized institution in
a
few typically rnorclnnt sentrncrs. IIis
opening gambit
is
typical; after quoting an effusive sentence or
tlro
from
McCardie
J.
(an Irishman after all) about “the common
law
of Ifng1;intl”
standing “forever in the noblest pages of history” he comments “it
would
be nice if you could say that you had never heard such nonsense
in
yonr
life.
But you can’t, because you have.” And he goes on to detail
all
the u.ell-
known instances where the common
law
went seriously wrong; no contribution
100
JAN.
1969
REVIEWS
101
between joint tortfeasors; misfeasance and non-feasance; consideration;
common employment; invitees and licensees, etc. etc. One of the most
effective passages in this chapter is an analysis of the character of the
“
reasonable man,”
“
this insufferable creature
”
:
incidentally we are told
that ‘‘the Reasonable Woman” is
“a
character unknown to the law”!
Bull’s-
eyes are perhaps easy to score on these targets, but one cannot help admiring
the dexterity
of
the marksmanship. Yet, as Lord Monckton says, one has an
uneasy feeling that weight should attach to the considerations which
are
left out.
In
a
chapter entitled Moral Landscape
our
author at last reveals the under-
lying urge which has driven him to write this book; it is his intense concern
with morals. He is
a
believer in
a
rather old-fashioned Christian ethic which
teaches the turning of the other cheek, and finds
it
difficult to condone indul-
gence in litigation at all. One should make peace with one’s adversary while
“in the way with him,’ and not enforce one’s rights against him in the courts.
Hence advocacy, which is the artillery of the legal battle, is
at
best “a neces-
sary evil”: just as in the opinion of St. Paul the main object of marriage is
the prevention of sin,
so
in civilised society forensic warfare is substituted for
the battle with club and dagger. What the devil
Mr.
Harvey is doing in this
galley where every niember of the crew apparently wears
a
silk gown
is
not
so
very clear. Me would probably say “earning my living in the way in
which God equipped me to do it,” which would be
“
reason good enough.”
To the cynic, whose ranks God forbid that
I
should join, Mr. Harvey’s
final chapter will no doubt provide food for sardonic amusement. At its
head he collects some choice quotations about the virtues of the legal pro-
fession couched in much the same exuberant terms
as
those which when used
about the common law he earlier castigated
so
mercilessly. He admits that
he finds the use of them “rather embarrassing” and after what has gone
before one can well understand this feeling, but his own moral principles
force
our
author to confess at this stage that his earlier strictures are only
true of the legal profession in earlier ages,
or
possibly in other lands, such as
the U.S.A. And
so
he decides for
a
“happy ending’’ and
a
profession
becoming filled with sober, hardworking, courteous lawyers,
no
longer taking
advantage of one another’s mistakes,
or
even those of the witnesses!
If
they
have become judges they are no longer “pornpoiis”-Mr. Harvey did you
never appear before
Mr.
Justice A
or
B
or
C
or
D?; if they are at the bar
they no longer apparently
“
seek out the company of
or
associate unduly with
solicitors”;
if
they are solicitors
.
. .
well
I
suppose solicitors never could do
any wrong, except for the small minority whose misdeeds are always bringing
them before the Disciplinary Committee at the Law Society.
Mr.
Harvey is,
of course, moving up the Establishment and before
so
very long excerpts from
his last chapter will figure in other books about advocacy. And yet some of
his old admirers will prefer to recall his earlier and less reverent phase when
though perhaps equally far from attaining one hundred per cent. objectivity
and truthfulness the salt retained a good deal of savour, and the arrow winged
its way on to some part of the target. C.
PROBLEMS
OF
LEGAL
PHILOSOPHY.
By
FREDE
CASTBERG, Professor
of
Constitutional and International Law at the University
of
Oslo,
Rector
of
the University. [Oslo: Oslo University Press;
London: George Allen
&
Unwin, Ltd. Second revised English
edition.
1957.
120
pp.
16s.
net.]
THIS
important book was first published in Norwegian in
1939
and in English
in
1948.
The present edition shows few changes from the earlier English
edition but the substantial merits of the work call for extended notice.
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