h2g2 The Hitchhiker's Guide to the Galaxy: Earth Edition

I had dinner out courtesy of the Law School on Tuesday. A new cold arrived at around midnight - straight to the throat and lungs. Susan and I were invited to dinner by Caius yesterday, along with a SA property acad. Ver' good. Fine selection of drinks. I had two tutorials today then came home.

It snowed yesterday, thru' the day then overnight. The roads are all to put and the buses reduced to chaos. The house gets rewired tomorrow - I'm not looking forward to it.

I feel awful - sore throat, fuzzy head &c &c.

Baked tatties for tea.


Douglas

Hope you're feeling better and that the absence of posting is an indication of a busy social life rather than abject depression (or possibly a surfeit of zombie DVDs).

I was intrigued by a paragraph in today's Grauniad:
http://www.guardian.co.uk/world/2010/nov/25/terrorist-1986-minister-refusal-release

"At the high court today, Hindawi's counsel, Tim Owen QC, said the decision not to release his client by the then justice secretary, Jack Straw, in November 2009, now adopted by his successor, Ken Clarke, was irrational and unlawful."

While the Home Secretaries' position may or may not be lawful, I would hardly call it irrational in that
a: The guy is only 56 and could be reasonably expected to resume his chosen career
b: Think of the outcry in the Telegraph/Mail etc.

Is this a common ploy amongst your legal brethren? To mix up legal opinions with everyday prejudices in order to bamboozle the judge and jury into agreeing with your (the lawyer's) point of view?

Sorry to run on like this, but my previous source of Scottish legal opinion died a couple of years ago.

Writing this has also reminded me of the Civil Service lawyer (Elizabeth ???) who resigned in 2003 and gave evidence at the Chilcot enquiry. She said that she resigned because the law was absolutely clear that the Iraq invasion was illegal. My first thought was that if the law was absolutely clear then why did the UK government go to war? If the law was clear in every area then we would have no need of lawyers to interpret it for us. I have had no second thoughts. Have you read an Act of Parliament recently? Are they deliberately so vague so as to provide work for the lawyers?

Hope you are enjoying the snow. Not reached us yet.

PJ's OH

Umm .. do you not think that Douglas has enough homework? Anyway he's not a member of the legal profession as such, he's a critical friend of jurisprudence.

Finished the crossword?

He has gone to bed having had a very stressful day - the flat has been rewired - dust!!! All cushion covers have been washed and no zombies this evening.

He will need the Bruce Millers breakfast in the morning to recover his equilibrium.

Cheers


Sue

I looked up ‘irrational’ in the OED and read that the word means ‘not endowed with reason.’ The point being made by the bomber’s lawyer seems to be that the exercise of discretion requires reason; otherwise matters would turn upon the adjudicator’s whim, humour and disgruntlement.

I checked out the news link and would absolutely agree that the bomber does not elicit much sympathy, but would suggest that at least two of the Home Secretaries named in the article, and possibly even three, are pretty rank specimens themselves – B firmly believed that he WAS the law ("the law is on my side. I know because I made the law”), and S was happy enough to offer a fellow panel show participant immunity from European arrest warrant.

Even when simply going through the motions, it is important that the motions are gone through, because this militates against the Napoleonic delusions of the likes of S and B &c. and, in doing so, protects you and me.

I tend to find that the problem with Acts of Parliament isn’t vagueness – quite the opposite. Westminster Acts tend to be highly specific, but are written and laid out in telegraphic, highly technical form, intended for and generally only legible to insiders. Westminster Acts are nevertheless gems of clarity as compared to what the Parly puts out up here. I am told that statutory drafting is a discipline of great skill, and that ‘plain English’ drafting results in vague and sloppy law. When reading a statute one should have several good dictionaries on hand and a selection of law books within easy reach. OK, maybe lawyers ain’t as appealing as fwuffy wittle kittens, but if all of the professional lawyers vanished off the face of the planet that’s still leave many millions of ships’ lawyers and barrack room lawyers and prison lawyers and all sorts of opinionated blowhards such as infest internet websites and the letters pages of the newspapers, I have noted that the law and the interpretation of the law develops through a combination of analogy, distinction and rhetoric – the tools of learned debate, so there’s nothing wrong with a good soundbite.

Anyhow, I think that Dr Johnson answers your central query rather well: see Boswell’s THE JOURNAL OF A TOUR TO THE HEBRIDES WITH SAMUEL JOHNSON, LL.D.

“We talked of the practice of the law. William Forbes said, he thought an honest lawyer should never undertake a cause which he was satisfied was not a just one. 'Sir,' said Mr Johnson, 'a lawyer has no business with the justice or injustice of the cause which he undertakes, unless his client asks his opinion, and then he is bound to give it honestly. The justice or injustice of the cause is to be decided by the judge. Consider, sir; what is the purpose of courts of justice? It is, that every man may have his cause fairly tried, by men appointed to try causes. A lawyer is not to tell what he knows to be a lie: he is not to produce what he knows to be a false deed; but he is not to usurp the province of the jury and of the judge, and determine what shall be the effect of evidence—what shall be the result of legal argument. As it rarely happens that a man is fit to plead his own cause, lawyers are a class of the community, who, by study and experience, have acquired the art and power of arranging evidence, and of applying to the points of issue what the law has settled. A lawyer is to do for his client all that his client might fairly do for himself, if he could. If, by a superiority of attention, of knowledge, of skill, and a better method of communication, he has the advantage of his adversary, it is an advantage to which he is entitled. There must always be some advantage, on one side or other; and it is better that advantage should be had by talents, than by chance. If lawyers were to undertake no causes till they were sure they were just, a man might be precluded altogether from a trial of his claim, though, were it judicially examined, it might be found a very just claim.' This was sound practical doctrine, and rationally repressed a too refined scrupulosity of conscience.”


If you employ a lawyer to make a case for the legality of something then that lawyer might well come back to you with a line of reasoning and authority for, for example, the proposition that waterboarding isn’t torture. Per Dr Johnson, if asked by the employer for a personal opinion, the lawyer should offer his personal opinion, but I don’t think that Bush/Blair would have made the mistake of asking. It may speak volumes for the integrity of Elizabeth Wilmhurst that she did what she did, that didn’t make her any the better or any the worse a lawyer. Such people are exceptional, in the minority – most of us would, if instructed, have greased and repaired the points on the railway lines to Belsen in 1943, and we may even be colluding in things no less heinous right now, today…

You do not judge the integrity of a lawyer by the advice they give their clients, or the activities they undertake in representing those clients (Dr J defines their role ver’ well) – the acid test is the extent to which they act for their own benefit, which need not even be contrary to that of their client.

Michty! I am all over the place here, and probably not making any great sense, but I think that with time I could turn this mess into a reasonably good Year II essay.

Susan stings me with her understatement. I was in the house all day, happit’ up against the cold (worsened by the open doors) while workmen banged and battered and hauled down great gobbets of plaster.. Then I had to clear up after them, then make tea. Miah went out at 8am and didn’t come back til’ the last of the electricians had gone – nearly 8 hours sitting out in the deep cold snow.


Douglas

Thanks for replying Douglas. I always find a hot toddie (or 2) helps with a cold. It at least, helps you forget how miserable you are.

I was just blowing off steam a bit. I have little time for B or S. However, there would seem to be perfectly rational reasons for keeping the guy in jail.

PJ's OH

I had a copule of hot toddies last night. I went to a chemist's this morning and gout some menthol crystals, for inhilation purposes.


Douglas