Letters to a Law Student

A guide to studying law at university

Nicholas McBride

• Publisher: Pearson
• Year: 2017
• ISBN:
  9781292149264
• Edition: 4

What does it take to succeed as a law student? This book will show you how.

Voted one of the top 6 books that all future law students should read by The Guardian's studying law website*, Letters to a Law Student is packed full of practical advice and helpful answers to the most common questions about studying law at University across every stage of taking, or thinking about taking, a law degree.

Discover:

· Whether reading law at University is the right thing for you;

· What law students do;

· How to get the best marks in exams;

· Tips on coping with the challenges of studying law;

· What you can do with a law degree;

· The way in which qualifying as a solicitor is set to change in the future,

… and much more.

Nicholas J. McBride is a Fellow of Pembroke College, Cambridge.

* http://www.theguardian.com/law/2012/aug/08/six-best-law-books

Letter 1

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What is law?

Dear Jamie,

Thanks for your email. Your question – Why should I study law at university? – is a pretty big one, and deserves a letter rather than just a quick emailed response. For what it’s worth, my quick answer would be: People should do a law degree because studying law is interesting, important, and educational. That doesn’t necessarily mean that you should do a law degree. Law isn’t for everyone. But as a subject for study, I think it’s tough to find another subject that is as fascinating, and as significant, and as transformative as law is. So – that’s the quick answer, but it’s going to take me two letters to give you the long version. To understand what is so great about studying law, you first need to understand a bit about what law is. That’s what I will talk about in this letter. I’ll then send you a follow-up letter explaining why studying law at university is something you should give serious consideration.

Law as a conversation

The question of ‘What is law?’ is one that continues to vex philosophers. But we might be able to make the concept of law more understandable through the following analogy. Suppose that you and I and a whole bunch of other people decide that we are going to go on holiday together. We all like each other, and we like spending time with each other, and a holiday is a great opportunity to do more of that. So – we’re going on holiday, but we still have to decide where to go, when to go, where to stay, what to do, how we are going to get there, how much everyone is going to contribute to the cost of the holiday, who is going to be in charge of what. Loads of things. To work out the answers to these questions, we need to talk to each other. There are some issues that all of us may have to talk about together, such as where we are going to go and when. There are other issues (such as transportation and accommodation) that we might be able to delegate to a few members of our party – and they will work those issues out together and report back to us. But however the various issues arising out of our plan to go on holiday are resolved, resolving them will require lots and lots of conversations.

What I want to suggest is that we can draw an analogy between the notion of law and the process of talking to each other in order to decide on the details of the holiday we are all going to go on. Instead of talking to each other to determine what sort of holiday we should go on, our law-makers talk to each other to determine what sort of society we should live in. So when we say ‘What does the law say on such-and-such an issue?’, we are really asking, ‘Where are our law-makers at the moment in their conversation about what sort of society we should live in? Have they decided this issue already? If they have, what did they decide and is there any possibility of this issue being re-opened? If they haven’t, then what does the state of conversation indicate at the moment about how our law-makers might resolve this issue?’ The conversation is ongoing and intergenerational. The fact that a previous generation of law-makers may have taken a particular position on what sort of society we should live in does not mean that future generations cannot take a different position, thereby bringing about a change in the law. However, the views of previous generations of law-makers do not die with the law-makers; the record of those views lives on and has the potential to influence the views of the current generation. So great law-makers of the past such as Sir Edward Coke (1552–1634), Lord Mansfield (1705–1793), Lord Shaftesbury (1801–1885), and Lord Denning (1899–1999) continue to have a voice in the conversations that go on today among our law-makers as to what sort of society we should live in.

Those conversations are conducted among and between two classes of law-maker: judges and legislators. Judges decide concrete cases, telling the parties to that case what the law says in that particular case. Legislators lay down general rules in the form of statutory provisions, both for people’s guidance as to how they should behave and in order to empower people to act in socially productive ways. Both judges and legislators are engaged in determining what sort of society we should live in, and in performing their functions each give effect to visions of what sort of society we should live in. Law that emerges from the way judges decide concrete cases is known as common law. Law that is laid down by legislators is known as statute law.

The ultimate power to decide what sort of society we should live in rests with the legislators: in deciding cases, the judges must give effect to any relevant legislative provisions that have been validly laid down by the legislators. Judges are subject to a further constraint that legislators are not. In deciding a case, a judge is required to give effect, not to his or her own personal vision of what sort of society we should live in, but to the vision that seems to be supported by the way the conversation among law-makers on this issue has evolved so far. For example, in R (on the application of Nicklinson) v Ministry of Justice (2012), a man who was completely paralysed and wished no longer to live sought a declaration from the courts that it would be lawful for a doctor to kill him. The judges who decided the case may have personally thought that we should live in a society where this sort of thing is allowed to be done. However, there was absolutely no support for the idea that we should live in a society that practises euthanasia either in statutory provisions created by legislators or cases previously decided by the judges. So the idea that euthanasia is acceptable is not one that had so far found any support in the evolving conversation between law-makers as to what sort of society we should live in. Given this, the court in Nicklinson had no option but to turn down the application, ruling that it could not hold that euthanasia was lawful until legislation had been passed making it lawful.

The requirement that judges not give effect to their own personal views as to what sort of society we should live in, but rather the emerging consensus among law-makers on this issue is a salutary one – however frustrating a particular judge (for example, one who believes strongly in the acceptability of euthanasia) might find it. The question of what sort of society we should live in is a very large and difficult one, and no one judge (or, indeed, any human being) can claim a monopoly of wisdom on this subject. Given this, a wise judge will listen with respect to the views of other law-makers – both past and present – on the issue of what sort of society we should live in, and will give greater weight to those views than his own, possibly mistaken, convictions on this issue. Of course, there are some judges (I could name a few …) who are determined to give effect to their own convictions, come what may – but there exist procedures for marginalising them: their judgments can be overturned on appeal, and they tend not to get promoted to the higher courts where they can have more influence on the direction of the conversation among law-makers as to what sort of society we should live in.

A concrete example

Let me now give you an example to make clearer the idea I am advancing here of seeing law as an ongoing conversation that is aimed at determining what sort of society we should live in. In the Belmarsh case, A v Secretary of State for Home Department (2004), the issue was whether the government was entitled to detain indefinitely non-nationals whom it suspected of being involved in terrorism. (The non-nationals were detained in Belmarsh Prison; so that’s why the case is referred to as the Belmarsh case, for short.) Part of what makes the Belmarsh case fascinating is that so many different (though not necessarily incompatible) views as to what sort of society we should live in were relevant to deciding the case. All of these views have found their place in the ongoing conversation among our law-makers as to what sort of society we should live in. In deciding the Belmarsh case, the House of Lords had to determine which view should take precedence.

(1) The rule of law

There is, first, the view that we should live in a society that places strict controls on how government power is exercised, so as to ensure that it is not exercised tyrannically or arbitrarily. This view – expressed by the ideal that we should be governed ‘by law, and not by men’; in other words, that we should live under the rule of law, and not be ruled by arbitrary government fiat – is wonderfully expressed in both the arguments and judgment in the case of Entick v Carrington, which was decided way back in 1765. In that case, Entick sued Carrington and three others for trespassing on his land: they had gone into his house and searched it for papers, in pursuance of a warrant issued by a Secretary of State that purported to authorise them to make searches to find out who was publishing ‘very seditious papers intitled The Monitor, or British Freeholder’. Entick’s barrister argued:

A power to issue such a warrant as this, is contrary to the genius of the law of England, and even if they had found what they searched for, they could not have justified under it … the verdict says such warrants have been granted by Secretaries of State ever since the Revolution; if they have, it is high time to put an end to them, for if they are held to be legal the liberty of this country is at an end; it is the publishing of a libel which is the crime, and not the having it locked up in a private drawer in a man’s study; but if having it in one’s custody was the crime, no power can lawfully break into a man’s house and study to search for evidence against him; this would be worse than the Spanish Inquisit ion; for ransacking a man’s secret drawers and boxes to come at evidence against him, is like racking his body to come at his secret thoughts. The warrant is to seize all the plaintiff’s books and papers without exception, and carry them before Lord Halifax; what? has a Secretary of State a right to see all a man’s private letters of correspondence, family concerns, trade and business? this would be monstrous indeed; and if it were lawful, no man could endure to live in this country.

The Lord Chief Justice, Lord Camden, found in favour of Entick:

The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole … By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action … If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment. According to this reasoning, it is now incumbent upon the defendants to show the law by which this seizure is warranted. If that cannot be done, it is a trespass. Papers are the owner’s goods and chattels: they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection … Where is the written law that gives any magistrate such a power? I can safely answer, there is none; and therefore it is too much for us without such authority to pronounce a practice legal, which would be subversive of all the comforts of society.

On this view, any government power to detain people indefinitely on suspicion of being involved in terrorist plots is legally suspect as it places too much power in the hands of the government to act oppressively and arbitrarily.

(2) Necessity

On the other hand, there is a view that we should live in a society where the government is empowered to do what is necessary to ensure the safety and security of the populace. This view – expressed by the Latin tag salus populi suprema lex est (‘the safety of the people is the supreme law’) – actually finds some support at the end of Lord Camden’s ...