A Critical Introduction to Law

Wade Mansell, Belinda Meteyard, Alan Thomson

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317683599
• Edition: 4
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Challenging the usual introductions to the study of law, A Critical Introduction to Law argues that law is inherently political and reflects the interests of the few even while presenting itself as neutral.

This fully revised and updated fourth edition provides contemporary examples to demonstrate the relevance of these arguments in the twenty-first century. The book includes an analysis of the common sense of law; the use of anthropological examples to gain external perspectives of our use and understanding of law; a consideration of central legal concepts, such as order, rules, property, dispute resolution, legitimation and the rule of law; an examination of the role of law in women's subordination and finally a critique of the effect of our understanding of law upon the wider world.

Clearly written and admirably suited to provoking discussions on the role of law in our contemporary world, this book is ideal for undergraduate and postgraduate students reading law, and will be of interest to those studying legal systems and skills courses, jurisprudence courses, and law and society.

Chapter 1

The common sense of law

The intention of this book is to persuade the reader to reconsider what is usually taken for granted and to question common sense assumptions about the law. There is an apocryphal story which well illustrates the central theme. A very new and very small sovereign state was admitted as a member of the United Nations in the 1970s. Within the United Nations, the formal position is that each sovereign state is equal and has one vote in the United Nations General Assembly, even though, beneath that technical equality, the usual hierarchy exists with the richest and most powerful states exerting the most influence. The newly appointed representative from the newly independent state did not initially grasp that the equality was supposed only to be formal. Consequently, he (or she) spoke at length on every topic which fell for debate to the obvious chagrin of the representatives of larger and greater states. At last, in considerable frustration, he was taken into the office of a delegate of one of the great states, upon the wall of which hung a large map of the world. The ‘Important Delegate’ explained to the unimportant new representative his position by showing the vast area of the map covered by such states as the US, Canada, Ghana, and even New Zealand, when compared with the tiny dots which represented the new delegate’s country. The new delegate’s immediate response was to ask a question – ‘Who drew that map?’.

What we will try to do in this book is to keep asking that apparently naïve question with reference to law. Hopefully, the law map we consequently construct will have as little in common with the orthodox map drafted by an endless stream of orthodox texts which purport to introduce the legal system as objective and as sensible, as the map which the new delegate might have designed. And, although that story might seem trite, we should at least be in a better position than before to recognise that it is the projection which inevitably distorts the image. Indeed, speaking cartographically, even the Peters Projection map of the world introduced in 1974 to correct the distortions of the Mercator world map is itself less than objective in continuing to place the North at the top of the map with the unfortunate South condemned to be forever below the North. This issue is superbly discussed in an episode of The West Wing where a delegation from the ‘Organisation of Cartographers for Social Equality’ is lobbying the mythical US President Bartlett to support the move to make the Peters Projection map the only one permitted in all schools. In answer to the question as to why this might be desirable, a member of the delegation replies, ‘Because the Mercator projection has fostered European imperialist attitudes for centuries, and an ethnic bias against the third world’!

In this introductory chapter, we will consider briefly some of the themes and ideas which will be taken up later. If you are standing in a bookshop skim-reading, or even perusing a free sample through electronic resources and trying to decide whether or not to buy the book, this chapter is for you. It should at least suggest why the approach we will follow is distinguishable from other introductory law texts you may already have perused.

Before doing that, however, there are two underlying premisses of the book which should be made quite explicit. The premisses are value judgements – that is, they are fundamental assumptions not capable of proof through reason. The first premiss is that knowledge has value even if it cannot be instantly (or ever) translated into earning capacity. This is a traditional assumption in education, particularly in universities, at least in the arts and humanities and in pure mathematics, but it is not necessarily an assumption shared by those with power in governments, nor yet by law (or accounting) students. It is, however, a non-negotiable premiss for the book and, if it is not shared, there is little point in reading on. This book is promised not to make you rich. Even though it will do little for wealth, we hope to show that such knowledge is not useless, and its uses will appear in due course.

The second premiss of the book is that it continues to be better to be an unhappy Socrates than a happy pig. The clichéd old saying to the effect that if ignorance is bliss it is folly to be wise has no place in real education, even though it may be acceptable in training courses. Much of what we will be discussing is, at least in some senses, disturbing, and even perhaps a little destabilising, simply because much of it should challenge both preconceived ideas and common sense. What is required to enjoy this book is the ability to be surprised by the ordinary, and the ability to reassess what has been taken for granted. Not everybody will either want or be able to do this, and for those this book will probably be an irrelevance.

If, however, these premisses are acceptable, then the book does have the advantage of providing ways of thinking about the law. There is nothing which need be ‘learnt’, as opposed to understood. Those who respond to the ideas will make them their own.

Traditional introductory law texts do not always find these premisses necessary. Most such books begin with the assumption that the reader knows nothing of law and proceed to provide an introduction to the intricacies of statute law and common law; public law and private law; to the institutions of the law such as parliament, the courts, the professions, the police force, and prisons; and to the procedures, that is, the processes, by which law is made and cases handled. The reader is expected, at least apparently, to learn about these things looking neither to right nor to left because the introduction is intended to be the first stage in a process leading to the legal profession, by which time the new recruit will be able to deal with the law and legal problems in an efficient and objective way. But, while the necessary knowledge has apparently been acquired looking neither to right nor to left, the argument we shall pursue is that nothing in law is without politics nor is apolitical. This does not of course mean ‘political’ in the sense of party politics (although that is often relevant) but rather political in the dictionary definition of ‘being characterised by policy’. Indeed, one of the central questions we will in due course discuss is how it is that law comes to be seen as politically neutral law when so much of it begins life as party political policy. The first significant point of this chapter is that law is political.

We do not share the view that people who have not studied law know little about it. Almost every adult knows a great deal about law and is well equipped to talk about it and read about it, if not about its procedures and methods. Actually (and this might seem paradoxical), it might be more possible to analyse law and the role of law at the very beginning of legal study, before becoming a part of the legal institution. It is not coincidental that many of the best novels and plays about law (that is, those which reveal things about law and lawyers) are written not by legal practitioners but by observers of the legal world. The authors Dickens, Kafka, Trollope, Harper Lee and Terence Rattigan provide ready examples. Very often, the people least able to evaluate an institution, whether it be a family, a school, the police force, or even a university, are the members of the institution itself. This is simply because (and this is a point which will be developed later) the members do in fact become institutionalised. They come to see through the eyes of the institution and lose distance and perspective in their vision.

This book will attempt to build upon the knowledge of the lay person in order to provide an ‘external’ description of the legal system and of the role of law in society generally, and in contemporary ‘Rule of Law’ societies particularly. In a sense, the intention is to provide an anthropological study of law in such societies.

The appreciation of law which it is anticipated lay readers will have is very briefly as follows. Many ‘law consumers’, as opposed to people directly involved in legal institutions, tend to think of law as something which maintains order in society and without which we would have massive disorder or anarchy, with no individual safe from violence or from threats to his or her own property. Without law, many people think Thomas Hobbes’s famous seventeenth century assertion that, ‘In a state of nature man’s life is nasty, brutish and short’ would quickly prove to be true. It is difficult to get away from this common sense view simply because, from an early age, we become aware that this is common sense. The newspapers confirm it, the police confirm it, the government confirms it, Lord of the Flies confirms it. Law, we are taught, is what protects and preserves civilisation from chaos. We know what a state of lawlessness is; it is the antithesis of a society governed by law. And, if we think of situations of lawlessness, most of us tend to think of places such as Syria, Somalia, Afghanistan, Iraq, South Sudan, Libya, Ukraine, Occupied Gaza and Mali, in which, at least from the outside, no one seems secure in their person or their property.

Nevertheless, parenthetically, but importantly, one should observe that something more than law and laws is required to prevent lawlessness. This is a point well made by reference to the US, where, despite having more people per capita involved in legal institutions than anywhere else, the crime figures and the imprisonment rate are much higher than in any comparable state. Thus, it is clearly not laws alone, or even law enforcement agencies, which ensure a peaceable kingdom. Nevertheless, a common assumption remains as a piece of common sense that without law we could not have order.

A second feature of law which most people would observe is that law also seems to be about coercion and force. Law means we have to do things. The police, the courts and the prisons may be used in order to deal with those people who disobey the rules. But, this notion of the law being about coercion, if necessary by the exercise of force, is only a partial feature of the law. It is not all force used by the ‘forces of law and order’ which we see as lawful force. Rather, though force seems to be an obvious aspect of law, only force which can be justified according to the rules is acceptable as ‘legal’. The arbitrary use of force by the tyrant seems fundamentally different from the use of just, or legal, force. What must be shown is that the use of force was within the rules. If it was not, it was not legal force.

It is the consensus upon this point which has led to such concern over the status and plight of those held (and some of whom are still held) as prisoners by the United States military in Guantanamo on the Cuban mainland, without legal redress, and where, pursuant to a 2012 US Supreme Court ruling, the writ of habeas corpus (the writ which requires those in authority to justify in law the detention of detainees) is effectively deemed not to run. It is significant that a law lord of the United Kingdom House of Lords, Lord Steyn, described the position of Guantanamo prisoners as a ‘monstrous injustice’.

More recently has been the controversy arising from the US Senate Report on CIA Rendition, Detention and Interrogation Program (2014), considering the use of torture and the recognition that the use of torture could never be a part of legal power.

This feature of justified force leads to the next prominent aspect of law in the common sense world: rules. We think of rules as things which are to be found in books and which tell us what we may or may not do. Many lay people characterise the job of lawyers as one of applying rules which they know, in order to determine legality and to ensure that actions conform to the rules. Although the rules may be slightly malleable, one of the great benefits of the Rule of Law is believed to be that the rules are always both discoverable and transparent.

The idea of law as a body of rules discoverable in books points to a further feature of our legal system, and that is the separation of law from everyday life or social situations. The rules, or the laws, exist separately from the social situations they are called upon to resolve. Resolving disputes using the law is utterly different from resolving disputes without the law. Without using the law, a social dispute remains simply that, and all the social aspects of the dispute are arguable, or are ‘at large’ as a lawyer might say. In our own society, we see this clearly in many family disputes where there is no limit upon subjects open to discussion. The law way of resolving disputes is very different. Many social facts become irrelevant because the law determines and circumscribes what is at issue. The selection of relevant facts is often a task for a lawyer and what is deemed relevant is not determined by the parties but by the law. Many clients express surprise when their solicitors explain to them what their dispute is ‘really about’.

We have then a separation of law from society. While the law is in books, the problem is in the social world, and the law seems to exist already for disputes which appear in the social world. The implications of this will be explored further in due course but the point here is that for a dispute to become legal the social problem must be transformed into a legal problem.

Furthermore, the law takes on an existence of its own. Just as Muslims refer to the Quran and Hadith for rules, and the Jewish people use the Torah to find social rules with their sources claiming to reflect the will of God, so our laws found in books seem to have an authority of their own and seem to be more than simply person-made rules. Law has the appearance of having an independent existence, a life of its own apart from the world of politics and the social world, and an established existence which used never to be more obvious than when one visited a traditional law library. There, sepulchral spaces were lined with old, heavy and leather bound tomes, themselves expressing the majesty and solemnity of law. (Quite how the creation of ‘cyber-libraries’ with computer terminals rather than books will affect the perception of law is yet to be identified.)

Later, we will consider how it is that this separation arises and discuss its significance. It is the separation which also gives law one of its greatest strengths. Often, if one asks why a law must be obeyed it is thought to be a sufficient answer to simply reply ‘Because it is the law’ without further justification. ‘The law is the law’ is not the tautology it might at first seem. As WH Auden puts it (1966):

Law is as I’ve told you before

Law is as you know I suppose

Law is, but let me explain it once more

Law is the Law.

To say ‘The law is the law’ conveys well the notion of the impropriety of not accepting and obeying law. Jacques Derrida (1992) expressed this well when he observed ‘What remains concealed and invisible in each law is thus presumably the law itself, that which makes laws of these laws, the being law of these laws’. The significance is brought out by a consideration of the way in which debates are changed when policy is transformed into law. (And, for those who believe that reason, not magic, governs our lives it is worth mentioning in passing how it is that policy becomes law. Explicit party political policy, subject to debate and opposition, transforms into law which must be obeyed, ‘because it is the law’, upon the signature of the Sovereign upon a piece of paper! This is a particularly powerful piece of magic. It is able to alter people’s behaviour by a ritual culminating in the signed paper of the Sovereign!)

When policy becomes law, the possibility of opposition changes dramatically. Policy may be opposed. Law must be obeyed. There are a myriad of examples of this phenomenon. In the UK, the introduction of the poll tax (or the community charge, as the government wished it to be euphemistically called) in the 1980s is a prime example. The intention of the ‘community charge’ legislation, was to move from local taxation being based upon property value (rates) to a system in which every adult within a local authority would pay a flat-rate per capita tax. It was introduced by Mrs Thatcher’s Conservative government in 1989 in Scotland and in 1990 in England and was finally replaced by Council Tax, in 1993. Although its introduction was bitterly opposed, according to the polls by a large majority of voters, once it became law (in spite of vehement argument), even those representatives in Parliament who had opposed it overwhelmingly took the view that the tax should be paid and not withheld.

Later in this book, we will analyse how and why it is that ‘The law is the law’ seems such obvious common sense. And, before the reader decides that it is so obviously right that law be obeyed that it is foolish to question it, it is worth remembering the case of South Africa, where we have a state which, until the ending of apartheid, was utterly preoccupied with legality and absolutely blind to the suffering its laws perpetuated. Should the obligation to obey the law remain of value in such a situation?

The point about South Africa brings us to the final aspect of the common sense of law we will consider. In many ways, it is the most difficult, but most people would not be satisfied with a description of law which did not contain some mention of justice. Quite what justice is, however, is not easy to say. At one level, there is the personification of Justice as a blindfolded woman holding in one hand the scales of justice, and in the other the sword of justice, with the blindfold representing the suggestion that justice is blind to individuals. All are equal before the law. The sword represents the force which is available to enforce any judgment.

Much of our notion of justice depends upon this idea of equality and fairness between individuals, but obviously, important though it is, formal equality cannot always be equated with substantive equality. To quote Judge Sturgess (1928), ‘Justice is open to everybody in the same way as the Ritz Hotel’. This too we will consider further but the significant point here is that the justice inherent in the law as rules seems to derive from the fact that laws are generalised. They apply to all relevant individuals equally.

Thus, to summarise, as elements in our common sense description of law we have first the idea that law is necessary for order; secondly, that law is about force and coercion: defining things which must and must not be done with the possible application of force in the event of disobedience (that is, lawful or legitimate force); thirdly, that law is about rules, where the rules are discoverable and known and which are separate from, stand outside, and in some respects are superior to our ordinary social world (that is, they have some independent existence irrespective of the will of individuals); fourthly, that there is a value in law itself which means that there is an obligation to obey some rules because they are law; and, finally, that law has something to do with justice in the sense of treating different individuals impartially.

We come now to the first difficult point. These notions of what law might be are not simply common sense. They are also ideological. By...