We were back in class this week on the GDL, after our ‘consolidation week’ – a week of no lectures that other educational institutions call ‘half-term holiday’. It was made very clear to us all that a holiday was the last thing the course organisers had in mind. The idea was that we could all go away, organise our notes, and do some revision.
Which, of course, we all did.
It has to be said, after six weeks or so of high-pressure learning, a week off was definitely needed, for mental health reasons if nothing else. We needed time to take a breath and get read for the next onslaught of information. This week’s topics of note were horse-racing and attendance at races, and Breakfast Tea. I’d always thought Breakfast Tea was the stuff in your mug before 9am, but apparently this is incorrect. Apparently Breakfast Tea is still Breakfast Tea even at lunch time. Or at Afternoon Tea, when there is cake. I still don’t know what makes Breakfast Tea Breakfast Tea as opposed to any other kind of tea. Give me the law bits in day of the week; the difference between EU law that has direct application that that which has direct effect is a lot easier to understand than nuances of tea, or when you should wear tweed.
The whole law student thing (if one intends to be a lawyer) is different from non-professional university courses. We are supposed to develop this thing called ‘commercial awareness’; I’m still not sure what it is, exactly. It seems to be involved, in some way, with reading the Times and knowing what the FTSE is doing, and who is the chairman of the US Federal Reserve. Since I would run screaming from a career as a corporate lawyer, I’m not certain how knowing who Dr Janet Yellen is will be useful to me.
In my admittedly inexperienced opinion, I would have thought that ‘commercial awareness’ would depend on which area one wishes to practise in. I know that as a pharmacist, one is expected to be highly knowledgeable within one’s speciality but simply able to function safely outside it (in itself no mean achievement, particularly in hospital practice). The same for doctors: you expect your ophthalmologist to be fantastic with eyes, but it’s forgivable if he’s a bit vague when it comes to gynaecology – provided he doesn’t try to practise it.
Still, I shall persevere. Today’s job is to find out what a Hedge Fund is. It sounds like something to do with topiary; maybe a Hedge Fund is when you have to save up to have someone come around to do the high bits?
The other problem with commercial awareness is that it involves reading a newspaper. I don’t have any problem with this in principle, but the Times seems like such an innocent, respectable publication when you see it in the shops. It’s not until you get it home that you discover that it has the same tendency to take over your house that Japanese Knotweed has to take over your garden. The newspaper boy has trouble getting it through the letterbox and has to do it in instalments; sometimes at weekends we take pity on him and open the door because it would be cruel not to. But I worry about deforestation. Although there’s a little notice that says that the recycled paper content of UK newspapers in 2011 was 78.9%, the other 21.1% has the potential for almost incalculable harm, if the sheer quantity of paper that arrives on our doormat is any indication.
So every day, I wrestle with the remains of what seems like about quarter of a square mile of rainforest, then beat it into submission and exile it to the box for recycling. So much for the good old days of getting current affairs information free from the BBC… It has to be said, though, the Times has pretty good cartoons. I’m not sure that, as an aspiring lawyer, I should admit to that. Maybe I should declare my undying love for the Times Law Reports instead?
Hedge funds aside, even six weeks of law is an eye-opener when it comes to reading the news. I actually understand what a blind trust is and why a politician might want one (as opposed to why they might want their constituents to have it). And I’m following the Veil Thing with keen interest. Apparently there is to be a Consultation on veil-wearing in court. I do hope that someone applies some actual logic to proceedings in a forwards direction, i.e., move from the problem to the solution. There seems to be a regrettable tendency lately to start with the conclusion (ban it!) and try to find a reason to make it happen.
I know that backwards-logic is a staple of the legal system. You only have to read the judgements in R v Brown to figure that out. Two judges approaching the same question from entirely opposite ends: very illustrative. Even more illustrative if you read the judgements in Gillick.
Backwards logic is what we use when we think we know the right answer: we just need to find a way to get there. I suspect that Lord Denning used it a lot, which was why he was known as ‘the People’s Judge’. That is, the public liked him, but lawyers tended to groan. In pursuit of what he thought was the right outcome, Denning bent the law until it squeaked, and his fingerprints are still all over the new shape of it today.
On the whole, I think this is a good thing. One thing you can say about Denning (OK, one of the many things) was that he seems to have held the view that the law is there to maintain a cohesive society and protect the weak against the strong – that it is not some huge, impersonal cage that is designed to crush society into its own pattern, like growing square apples by putting apple-buds into square boxes. This meant that Denning tended to force the law to conform to his views on what ‘the right answer’ was. A lot of the time, he was right. If you read High Trees your immediate gut instinct is that the outcome was fair. No matter that he had to resurrect a principle of law that had been pretty much forgotten since 1877 (I watched a video of an interview with him, in which it was very clear that he’d spotted the 1877 case years before, and had been waiting for an opportunity to use it!). Likewise, Denning tried to give a ‘deserted wife’ the right to stay in the marital home; the House of Lords nullified this in a different case in the same year. Parliament, however, seems to have agreed that Denning’s approach was preferable and passed the Matrimonial Homes Act 1967 giving deserted wives rights to remain in the matrimonial home again (and home rights are now part of the Family Law Act 1996).
The danger, however, of a judge working backwards from the answer, is that if his answer is wrong then his logic will be, too – unless he has the self-awareness and humility to acknowledge that his answer might be wrong, so it behoves him to check his logic very carefully indeed. The danger is most acute in cases dealing with ‘soft’ issues such as sexual morality (R v Brown, Gillick) and religion – particularly where the judge is not of the same religion as the one being dealt with in the case. It’s very difficult to treat points of view and lifestyles that one does not espouse, or, worse, even agree with, as potentially valid and valuable. It’s far easier to treat them as lesser: less logical, less worthy of protection, less respectable. Be reasonable: do it my way.
As far as I know, we do not have a single judge who has personal experience of wearing a veil (I don’t know what Baroness Hale wore at her wedding, but it probably wasn’t quite the same sort of thing). However, how many of us have had that nightmare… the one about walking into your workplace and suddenly realising you are stark naked? I would imagine that, for a woman who is committed to wearing a veil, being forced to remove it in front of men not of her immediate family, it would feel a bit like that. Parts of her body on show to people who have no business seeing them. It doesn’t matter if other people are happy to show those body parts: after all, we’ve had a recent court case on that very subject. Stephen Gough likes to ramble naked. Other people don’t feel the same way, and, moreover, don’t like to see him doing it. This has landed Mr Gough in prison, and last month he lost his appeal in the High Court.
So we have the interesting situation where we punish people for not wearing enough clothes, but we also prevent them covering up too much. And it is the latter half of this problem that judges will have to navigate. Will they be able to step aside from their own cultural biases? Will they start from the answer and try to bend the law to fit, or will they look at the law and legal practice as it currently is and try to see how the various Muslim veils fit into it? And if they start from the answer, will they have the self-awareness to realise when their logic contains an error or an unwarrantable assumption?
Starting from the answer can sometimes be the humane thing to do – but only if you acknowledge the pitfalls. It’s just too easy to start with the answer and use the law as a justification, which is a perversion both of the law and of the responsibilities of the judge. The difference between bending the law into a new shape to protect the weak from the strong, and distorting it to allow fear and prejudice to win the day, is small but vital.
I think the Veil Thing is a case for starting at the beginning and seeing where the road takes us, testing every step of the way. I hope that is what they do.