REVIEWS
| Date | 01 January 1975 |
| DOI | http://doi.org/10.1111/j.1468-2230.1975.tb01403.x |
| Published date | 01 January 1975 |
REVIEWS
1
COURTS
AND
THE
POLITICAL PROCESS
IN
ENGLAND.
By
FRED
L.
MORRISON.
[Beverley Hills,
U.S.A.,
and London: Sage
Publications.
1973.224
pp.
E5
*OO.]
ONE’S
first impression of this book is that it is
a
very superficial outline of the
English legal system, written for an American audience, and tarted up with
some of the jargon of political sociology. Closer scrutiny confirms the well-
known danger of judging by first impressions.
Although most
of
the raw subject-matter of the book is all too familiar there
is considerable freshness and originality in the mode of presentation. This
freshness is attributable to the fact that the material
is
presented within
a
simple
but revealing theoretical framework which emphasises the crucial importance
of
the lawyer’s self-perceptions
of
his proper role in the political process. English
jurisprudence has traditionally stressed the separateness
of
law and politics and,
in particular, the need for judges to steer well clear of party political
controversy. Americans have assumed a
“
realist
”
stance, emphasising judicial
individualism and creativity; and,
of
course, an explicitly political
”
role
is
reserved for the judiciary by virtue of the Constitution. For the American
reader Morrison’s book will probably appear simplistic; for many readers in this
country it may be something of an eye-opener simply because
so
very little
of
this kind of thing has been written, even at this very elementary level, about our
legal system.
The main emphasis throughout the book is upon the tension between the
judge’s consciousness
of
the apolitical character of his role and the undoubted
fact that the processes loosely defined as
“
legal
”
and
“
political
”
are
inseparably intertwined. Continual comparisons are made with relevant
aspects of the American system. After an introductory chapter explaining the
method
of
approach (complete with diagrams) there is a chapter outlining and
sometimes criticising some salient features
of
the courts and the legal profession;
while critical
of
the excessive use of oral argument in the appellate courts, the
author concedes that these courts
“
dispatch cases with amazing rapidity.”
There follows an interesting, though superficial, discussion of judicial
recruitment, which includes some useful if unsurprising data about the social
backgrounds
of
judges and the extent of their political experience, stressing the
effects of the insularity of lawyers in reinforcing their role-perceptions. In
1970,
it seems, some
10
per cent. of judges of High Court rank and above had been
M.P.s
or parliamentary candidates, compared with the
65
per cent. in Laski’s
famous survey of the period
1832-1906.
The author suggests that for the really
ambitious lawyer
‘‘
the time commitments involved have made the two careers
incompatible.”
The next chapter discusses the unwillingness of English judges to interfere
overtly with statute law,
a
phenomenon attributed more to the manner in which
judges perceive their role
uis-&+is
the legislature than to the absence of a written
constitution. A chapter on administrative law again stresses judicial passivity
and notes the importance in England of political, as opposed to judicial, avenues
of
redress. In private law, too, the judges may be prepared to agitate for law
reform,
“
but they leave promulgation of change to those with recognised
legislative roles.” This is contrasted with the position in respect of criminal law,
an area where the common law has always been dominant; here the judges are
more
‘I
creative
”
because they
do
not feel the risk
of
being seen to intrude upon
the domain of the politician. The author notes that the extensive extra-judicial
writings and pronouncements about crime, morality and punishment
(uiz.
Lord
Devlin) are in marked contrast to their reticence in matters that might be
regarded as
“
political.”
For this reviewer the most interesting chapter is the one dealing with judicial
99
100
THE MODERN
LAW
REVIEW
[voi.
38
involvement in matters political by virtue of judges’ service
on
tribunals of
inquiry, royal commissions and other official bodies. Morrison suggests that
their activity on royal commissions
“
has permitted them to influence the
direction of public policy, without violating their own conceptions of their
proper role as judges.” He notes also the tendency to harness the
“
neutral and
uncommitted
”
image
of
judges to defuse political controversies through the
medium of tribunals of inquiry; it is
a
pity, however, that Professor Morrison
does not discuss the possibility that the currency of
a
neutral judiciary might be
debased by excessive use of such devices in circumstances
of
partisan
controversy.
The book has some irritating blemishes, not the least of which is the absence
of an index. A percentage is incorrectly calculated at page
86.
A
mysterious
litigant in person, Mr. McWhirler, appears at page 108. It is not strictly correct
to say (at page
37
and again at page
200)
that the Lord Chancellor’s pension is
a
“
judicial salary.” The book does not discuss events beyond the end of
1971,
thus
omitting most of the highly pertinent happenings surrounding the rise and fall
of
the National Industrial Relations Court-Con-Mech.
et
d.
Similarly, some
remarks about the passing
of
the Lord Chancellor’s judicial role need amending
in the light
of
Lord Hailsham’s frequent excursions onto the Bench.
Research into judicial behaviour in Britain has been almost non-existent. The
myth (exposed
as
such by this book, if not exposed long before) that the judicial
process is non-creative and non-political, is self-fulfilling
to
the extent that
English judges strive manfully to act out their
“
neutral
”
role and thus deny the
would-be behavioural researcher my obvious toe-holds. And there are practical
obstacles: the appellate courts do not sit
in
banc; dissenting judgments may be
suppressed in
the
cause
of
outward harmony. Treated
as
an attempt
to
plug this
vast gap Professor Morrison’s slender volume is clearly inadequate; its
theoretical underpinnings are scanty and fragmented and
far
too many
questions are left unanswered, or even unasked. However, it would be manifestly
unfair to judge this work by
a
grandiose claim which it never makes. This is a
thoroughly stimulating little textbook, suggestive of profitable lines of inquiry
for the researcher, but offering something worth while in its own right both to
the student and to those who are more familiar with the subject. It constitutes
a
bridge, albeit
a
slender one, between the disparate disciplines of law and politics.
GAVIN
DREWRY.
THE
LEGAL
STRUCTURE.
By
M.
D.
A.
FREEMAN.
[Longman,
1974.
243
pp.
(incl.
index).
El
020
(Paperback).]
The Legal Structure, in the series The social structure
of
modern Britain. is
a
book written about law (rather than a law book), with limited aims and, it will
be argued, limited value.
Split into two sections, it attempts in
50,000
words to be an introductory text
for the
“
growth areas
”
of
the sociology of law and sociological treatment of
legal problems. The first section entitled
“
The craft of law
”
is intended to be a
theoretical exposition of the relationship
of
legal and social structure, legal and
social control, the law and behaviour, attitudes, interests and values. The second
section
‘‘
Legal institutions and the public
”
covers the legal profession, judges,
the police, lawyers and the public as law-consumers.
What is the place for this book? Books which attempt interdisciplinary
investigation have the unenviable problem of being unable to satisfy the
established criteria of recognised disciplines,
or,
as will be argued in this case,
the needs
of
new areas of study. The lawyer reading this book will gain little
beyond informed opinion. The sociologist will tend to find the arguments
simplistic. But, apparently, this
“
introductory text
”
is directed to students
of
social work, teaching and other professions. What insight will this book give? It
has a number of merits. It is very readable and packed with
‘‘
points
”
(but never
really develops any of them). The reference and further reading sections are
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