29 January 2014

The Judge and the Novelist

Aspects of the Novel compiles lectures delivered by EM Forster arranged as a conversational-styled monograph. The result is informative and witty. Chapter six begins with an epigram that may help explain the judicial duty. So next, that extract is quoted and afterwards annotated.

1. Forster and the Law

1.1 Forster's Words

A course of lectures, if it is to be more than a collection of remarks, must have an idea running through it. It must also have a subject, and the idea ought to run through the subject too. This is (…) obvious (…) but anyone who has tried to lecture will realize that here is a genuine difficulty. (…) [A]ny (…) collection of words[] generates an atmosphere. (…). Thus [a lecture course] tends in its parasitic way to lead a life of its own, and it and the idea running through it are apt to move in one direction while the subject steals off in the other.

The idea running through these lectures is by now plain enough: that there are in the novel two forces: human beings and a bundle of various things not human beings, and that it is the novelist's business to adjust these two forces and conciliate their claims. (p 73)

1.2 Conflating to Fit

I submit that in law these two forces similarly exist but disguised as questions of facts and law.

As a brief aside, it says something of law, though I am uncertain what (except perhaps that law will not succumb easily to my metaphor!), when 'human' is easily reduced to 'the facts that a human inadvertently caused or is the centre of'. Unless, of course, I have mixed it all up and law should be characterised as the 'human being[]', and 'facts' equated to the varied bundle in Forster's analysis.

Nevertheless, I will continue with my original (tortured) claim: facts reflect the human part, and law the related bundle.

1.3 Applying the Metaphor

In law, then, the judiciary's role is 'to adjust the[] two forces and conciliate their claims'. But, avoiding nullity-by-'that's-obvious!' as much as possible, English law differs from the novel in one important respect: it is not the judge (read: novelist) who adjusts the forces, but an advocate.

Litigants are represented by counsel who in turn project to the court a reflection of the litigant that is conveniently flattened into a shape the law can understand. The legal system deals, like a university, with calm adults not squalling children. Advocates, then--not the principal authors, the judges--adjust the human beings (and all the facts they represent) to facilitate the legal process.

Thanks to advocates, the facts--'human beings'--are already cut-out representations that fit easily in the judicial prose--much like a cardboard cut-out of an actor, such as Benedict Cumberbatch on the left, would fold easily into a filing cabinet but a real one is too 3D to fit. The judge as novelist therefore does not have to adjust from full to corrugated, but instead need only conciliate the two ideas that run through the legal novel.

2. Problems

Although I readily admit that Forster's words must be hammered into a metaphor, the application is illuminative: although judges are credited with much legal authorship (Lord XY opined this…, Lady XX opined that…), it is clear that without other key speakers in the legal infrastructure, the legal process might not produce the coherent novel that its current procedures do.

3. An Almost-Concluding Conclusion

As for taking this further, there is much literature that explores law as communication, or a conversation spanning ages.* And there is certainly, in the foregoing, a viable contrast for comparative lawyers that might help explain why an adversarial system works in England, but Europe generally does not understand it. If I were to take this argument forward, I would begin with Al-Khawaja and Tahery v UK, Horncastle and Others v R, and other ECHR Article 6 jurisprudence.

I hope this exploratory essay is not too confusing, and that whatever ideas are clearly expressed are helpful to whoever reads this. At the very least, I hope the diversion to criminal hearsay law to Cumberbatch and below's meandering through Perelman to Habermas illustrates Forster's warning that subject matter and ideas can run off in their own directions if you let them. Law students might guard against this by attacking essay drafts with red editorial pens, wherever sources wander away from answering the question(s) asked.

4. Further Reading

* The following links are to three examples that I have encountered and found interesting:
  • Chaïm Perelman, Justice, Law, and Argument: Essays on Moral and Legal Reasoning (Kluwer 1980). This might be the most expensive book that I've gone to buy and bottled it before the checkout. I've seen secondhand copies range between £60 and £3000, but usually between £130 and £1000! If you're library has a copy, it is worth reading.
  • Mark Van Hoecke, Law as Communication (Hart 2002). If time is limited, Perelman is better.
  • Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (William Rehg tr, MIT Press 1996). In fact, I'm reading this book now, which might explain why/how I made a subconscious link between Forster and law (see eg ch 6, and p 257: 'Michael J. Perry, for example[] (…) conceives the text of the constitution as a founding charter that manifests the ethical self-understanding of a historical community', viz, constitutional law today represents all the talk about constitutional law by us and all the people preceding us.)

Created: 28 January 2014. Version 1.0.

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