Giving good judgment


I’ve recently finished revising my bits of writing for the ninth edition of Learning Legal Rules (co-authored with my recently emeritus collaborator and erstwhile colleague, James Holland), which will be published by Oxford UP next year. After eight editions it’s tempting just to update without tweaking and changing too much, but we like to try and keep it fresh as well, so are always looking for new (or even less new) material that will serve that purpose. This time around one of the pieces I came across was a piece in the Guardian by the novelist Ian McEwan (whose work I’ve always admired). Though we didn’t use it in the end, I want to share it here. It is on the rather well-worn trope of legal judgment as literature, but I like the way in which McEwan brings his novelist’s eye to the description:

It was the prose that struck me first. Clean, precise, delicious. Serious, of course, compassionate at points, but lurking within its intelligence was something like humour, or wit, derived perhaps from its godly distance, which in turn reminded me of a novelist’s omniscience. I continued to note the parallels between our professions, for these judgments were like short stories, or novellas; the background to some dispute or dilemma crisply summarised, characters drawn with quick strokes, the story distributed across several points of view and, towards its end, some sympathy extended towards those whom, ultimately, the narrative would not favour….

Here, in my lap, were realistically conceived characters moving through plausible, riveting situations, raising complex ethical questions. If these judgments had been fiction, they would have belonged in the tradition of moral exploration that includes Jane Austen, Leo Tolstoy, George Eliot, Henry James, Joseph Conrad.

I love this description, and while not all judicial authors can be praised for prose that is ‘clean, precise, delicious’ the best undoubtedly can. It’s also probably not a bad reminder either to  us or our students that it is the writing that leaves its impression first, and probably longest. Prose doesn’t have to be turgid and dull just because its ‘legal’ or (even worse!) ‘academic’. For me it was also another prompt to consider what our students lose when we do them the (dis)service of packaging their law for them in ready-to-digest, bite-size, nuggets in lectures and textbooks(!). Those judgments that involve hard moral problems really do allow us to see into the crucible of ethical decision-making in a way that commentary often does not.

It is perhaps no surprise that the primary target of McEwan’s admiration was Sir Alan Ward, the Court of Appeal (England and Wales) judge who retired last year. Sir Alan was always one of my favourite judges for both the clarity of his prose and his ability to wear both his judicial authority and his learning very lightly. I’m pleased to say he gets two honourable mentions in the new edition. The first refers to his most famous and probably most difficult judgment in the conjoined twins case (Re A (Conjoined Twins) [2001] Fam 147). The other? Well fellow Ward devotees may have guessed… I couldn’t let his one-liner about ‘warring bankers’ get away.

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