The Barrister's World and the Nature of Law

The Barrister's World and the Nature of Law

by John Morison, Philip Leith
     
 

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Booknews
A novel look at the role of the advocate in (UK) law. The authors suggest that, contrary to the orthodox view that law is about close analysis of text, law is more to do with persuasion, rhetoric, and negotiation. They conclude with an extended restatement of the neglected Realist views of Jerome Frank. Distributed by Taylor & Francis. Annotation c. Book News, Inc., Portland, OR (booknews.com)
Burton M. Atkins
We've seen a growing interest, as there should be, in understanding legal systems, their substance, actors and processes, in cross-cultural or cross-national contexts, be they truly comparative or single nation studies with comparative overtones. This book about the role of barristers in the English legal system by two lecturers at the School of Law, Queen's University Belfast, follows in this tradition, although the focus is clearly on barristers operating in the context of the British legal system. The book addresses two general themes and problems. One relates to the authors' attempt to use their study of barristers as a forum for encouraging British legal scholars to move in the direction of American research traditions, and especially those that move away from legal formalism towards a realistic appraisal of law and legal systems. Much emphasis is placed on American legal realism, and on Jerome Frank's work particularly. Morison and Leith argue that the barristers role in the legal system is best understood through how the process of advocacy affects the content and formation of law, or what they call "the non-textual nature of law" (vii). This is found, not by focusing on the formalities of what counsel do but by examining how advocacy evolves in litigation. In focusing on the nexus between barristers and advocacy, they draw explicitly upon American research traditions because they are perceived to be more comfortable than are the British with understanding the realities of law and of the legal process. They thus find the roots of their thinking in Frank's legendary debunking of the legal system. They discuss Frank's work briefly at the outset (p 16), but devote much of Part III, and especially chapter 9, to linking what they describe as the core of the barristers world, advocacy and legal information, to the tenets of the realist movement. Once taking us through the landscape of rule and fact skepticism they acknowledge themselves to be unabashed information skeptics. In large measure, these sections of the book cover well-traversed terrain. Most of the book, however, is concerned with understanding the role of barristers by focusing upon the interactions between barristers and other actors in the legal process that form the barristers world. They also examine the processes by which legal information is constructed through advocacy. For Morison and Leith, advocacy is the central and defining aspect to the barrister's function. (pp 22-23). They see law as rhetorical not logical, that is, they are more concerned with the structure of the information that goes into advocacy than with the formal basis of law itself. Thus, much of their effort goes into exploring how legal information evolves. Much emphasis is placed on the network of professional relationships between barristers, on the one hand, and clerks who work in barristers chambers, judges and opposition barristers in court on the other. A central relationship for barristers, however, is with the other branch of the divided English legal system, the solicitors who serve as "one pivot" (p. 52) of the barristers world. Solicitors are central to the barristers world because they define "how information is selected, perceived and handled" (p.75) as cases are brought to barristers with an eye towards eventual courtroom argumentation. As Morison and Leith put it, "the dynamics of the barrister-solicitor relationship affect everything the barrister does..." (p.75) This book is a refreshing examination of the way in which solicitors, counsel, judges and clients interact to structure the context and content of law. It is organized and written clearly. Those interested in reading about the legal profession in Britain will find it informative. However, some aspects of the book are troublesome. A notable one is that Morison and Leith do not tell us much about how this research was conducted. They mention that interviews were carried out with a "relatively random" (p.14) Page 20 follows: sample of barristers, apparently mostly in Belfast, but some, more than they intended, in England, Wales, and Scotland. We are not informed about how many barristers were interviewed, nor are we provided the inventory of questions posed. They are pleased, as they point out in the preface, that their interview methodology was not "crudely empirical" and that their goal was to capture the barristers' "style of thinking". They feel they have accomplished their task where "crude empiricists" have apparently failed. Its unfortunate that they did not take a more rigorous view of their data collection, or at least they do not tell us about it, because their failure to do so encourages the reader into joining the authors as information skeptics, at least for the purposes of interpreting this book. Nevertheless, it is an interesting look at the barristers branch of the British legal profession.

Product Details

ISBN-13:
9780335093953
Publisher:
Open University Press
Publication date:
12/01/1991
Pages:
216
Product dimensions:
5.91(w) x 9.06(h) x (d)

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