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(This post is an edited extract from a talk I gave on Nov. 1, 2017, to the legal ethics seminar of the bar admission course at the Law Society of Newfoundland and Labrador. My thanks once again to the Honourable John Joy, lately of the Provincial Court of Newfoundland and Labrador, and to the society’s director of legal education, Christian Hurley.)
Having spent many years in legal journalism and as a writer of books, I entered law practice later in life. When I was in law school more than a decade before these events, I’d thought I wanted to work in criminal law, Crown side. But more lately the opportunity had arisen to article with the country’s senior practitioner of libel law, Julian Porter. After my articles, I became the tenth barrister at the Bay Street boutique litigation firm.
One of my jobs as articling student and junior associate was to screen out the cold-callers – generally the people who would phone us during the week, especially after Julian had been on television or in the papers. Typically, these callers were livid that they had been defamed by their boss or their mother-in-law, whom they were bound and determined to sue.
Some might already see a potential ethical issue here: screening possible clients might be good training for the student, but how safe is it professionally? I was giving preliminary legal advice, unsupervised. But of course we weren’t retained (or was I? More on that anon…), I had much greater experience of substantive law than most students-at-law (as I say, I was new to law practice but older and not at all new to the law), and the partners understood that I would bring sticky situations to them. Mind you, there was also the business concern, given that I generally persuaded the callers that they didn’t have a case, or even if they did, they would have to mortgage their houses and futures for the privilege of three years of terrible, unrelenting stress. Typically I would quote them the advice of the American trial lawyer Louis Nizer: when you get splashed with a bit of mud from a passing car, it’s a bad idea to smear it around. Wait a few minutes for it to dry, then flick it away. Often, the same goes for mud slung at you metaphorically. I thought it my ethical duty to point that out, where other counsel might have taken a retainer less hesitantly (scrupulously?).
In any event, one morning during my articles, Betty, Julian’s secretary (this was before we had “administrative assistants”), buzzes me: “There’s a guy on line three, he says people are slagging him off in a bar. He wants to sue them.” Oh, goody, I think, another one of those.
So, yes, it turns out it’s the guy’s watering hole and he says that the other punters there are putting him down. I give him the mud line, I explain how libel and slander actions are generally a rich person’s game, I explain to him the defences of truth (“justification”), fair comment, qualified privilege. I talk about the stress of litigation, how slander actions are rare birds that can bite back, while consuming three, four years of his time and spirit, never mind his paycheque.
So he says, “Well, maybe I should just put a bomb there, then.” We laugh. “I don’t recommend that,” I say. “Maybe you should just find another pub.”
But right after I hang up, I start to panic. I don’t know this guy from Adam. He sounded like a nice fellow; he was feeling hurt; he wanted my help. I don’t want to sic the cops on him if he’s just been making a casual joke. That wouldn’t be good for anybody, and certainly not for my chances of being hired back at the firm. On the other hand, what if life and limb really are at stake? The guy feels aggrieved; I’ve just told him that he probably has no legal recourse.
So I scamper to the senior partners. My articling principal, Joyce Harris, a woman of deep experience who rose in the profession when female counsel were rare and not well tolerated, listens carefully to my narration of the call. Then she phones the guy and grills him on speakerphone, with half the firm present – a textbook cross-examination that itself is an education. Joyce makes it clear that we’re considering involving the police.
The ethics there? Well, if the guy had been hassled by the police about the matter, he might have argued that he thought there was solicitor-client privilege – that I was retained – because I did give him some advice. But this was a cold call, by him, that resulted in a preliminary, pre-retainer discussion. Any idea of a relationship would have been what is sometimes called a ghost retainer, supernatural, imaginary. Most barristers would say the same, I think, although our firm still could have had a hassle over the contrary argument. Then again, there was the possibility of an incipient crime. Which raised my immediate ethical problem and brings us back to Joyce.
The guy was cooperative with her, and a little sheepish. He reiterated that he’d been joking. We felt reassured. But after hanging up, Joyce took one further step. If you’ve encountered the so-called bloody-shirt problem of legal ethics (where a client lands counsel, his retained lawyer, with incriminating evidence), you will have a good idea of what it was.
Joyce called the practice advisory division of the law society, and got the view of counsel there on how we’d handled things. This of course gave us another senior, earnest, and – most important – official look at the matter. Not to put too fine a point on it, it helped cover our behinds with the professional regulator. Practice Advisory (another deeply experienced barrister that day, whom Joyce knew well) said that as long as we were convinced that the guy was no actual danger to the public, we seemed to have managed the problem effectively. And sure enough, we heard no more about it. But it was one of those sweating-bullets incidents that most lawyers can recount from their articling days. I have a good few, some more of which I hope to share in this blawg.
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Law school exam question: In a news report on its website, the CBC names an Alberta girl who was murdered. Twelve days later, during the accused murderer’s first appearance in court, the judge bans publication of the girl’s name. From then on, the CBC does not name the girl in any of its stories. Does it also have to remove her name from website stories posted before the ban?
This is the context of CBC v. The Queen, released last Friday (Feb. 9, 2018) by the Supreme Court of Canada. The larger case could well establish new law on what Canadian legalese means by “publishing.” Does the word include permitting internet access ad infinitum?
Under some influential provincial law, defamatory material on a website is said to be published or broadcast every time someone “accesses” it. Related law also says that transmitting amounts to publishing. The Alberta Crown has argued that these principles should apply in the CBC website case – that, by not taking down the girl’s name, the CBC is in contempt of court, because it is still publishing her identity.
Usually, disobedience of a court order is a civil contempt. The prosecution still has to prove it beyond a reasonable doubt, but it is not criminal (supposedly more serious, although these days, business-people and battling spouses flout court orders so arrogantly that the penalties can be severe for their “civil” breaches) unless the disobedience is public and undertaken with the intent or knowledge that the court’s authority will be, or is likely to be, undermined or depreciated. In the civil context, contemnors need not intend to thumb their noses at the court: they simply must deliberately do the act that the order forbids – here, supposedly “publishing” the girl’s name.
But the Alberta Court of Queen’s Bench has already said that the CBC is guilty neither of criminal nor civil contempt, and the Supreme Court of Canada has yet to consider that decision. In the Friday judgment, the high court simply has declined to order the CBC to take down the girl’s name pending the Crown’s appeal of the contempt motion. (I.e., the Crown argues in a separate appeal that the motion court wrongly decided there was no contempt.)
If the Queen’s Bench contempt ruling stands, “publishing” for the purposes of contempt law will be different from publishing in other areas of our jurisprudence. To understand this, you have to parse its contempt ruling to distinguish what the court says about publishing from what it says about criminal contempts.
The court has a reasonable doubt about publication because: the CBC did not publish the name after the ban, it simply allowed access to it; “access” to material does not necessarily mean it is published, never mind that “access” and “publication” can be synonymous in defamation law and under the Youth Criminal Justice Act; the media guide issued by the Alberta Court of Appeal says that allowing access is not publishing; an infringement of a constitutional right such as free expression must be precisely defined, and whether there is disobedience here is debatable; allowing access is not transmitting or broadcasting.
The court has a reasonable doubt about criminal contempt because: the girl’s name is available elsewhere all over the Internet and in print, including in newspapers and publicly-available court records; the CBC is not disobeying the order so much as disagreeing with Alberta’s interpretation of it, such that it is not “defying” anything; the CBC has a right and duty to report. As well, Alberta’s Queen’s Bench holds that CBC has not been “strident or even disrespectful” but principled in its disagreement with the Alberta Crown’s view of the ban, and that, with potential libels, we know our obligations from the start whereas here the CBC would have had to predict the future here (i.e., that the publication ban would issue).
Perhaps anticipating all these difficulties regarding a criminal contempt, the Crown had argued that, alternatively, the CBC is in civil contempt. The court responds that the same doubt as to disobedience applies. This suggests that the Crown has failed to show (beyond a reasonable doubt) that the CBC intended to do what the order forbids.
The Supreme Court’s injunction decision (refusing to order the CBC to take down the name temporarily) does hint at what that highest court might say if the contempt appeal reaches it. First, Justice Brown (for all nine judges) says that that the Crown’s application for an injunction and the contempt motion are linked, given that the Crown seeks temporary removal of the name based on its continuing allegation that permitting access to it is a contempt. Then he notes that, in (wrongly) ordering the CBC to take down the name pending the appeal of the contempt decision, the majority of the Alberta Court of Appeal admits that both the Crown and CBC positions are “arguable.” This, Justice Brown concludes, is “an acknowledgment that the Crown had not shown a strong prima facie case of criminal contempt.” Because the Crown could not show contempt even in this arguable, presumptive sense (for the purposes of a temporary ban on access), the Supreme Court overturns the injunction – which is why it might well find that there is no contempt for internet access to material that is posted before a court bans that publication.
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I recently began work on a book about plagiarism and the law. Given the subject’s lively controversy in this digital age of “everything’s up for grabs” – consider the lawsuit against Led Zeppelin for supposedly appropriating the music to “Stairway to Heaven”; the resignation of a member of the Toronto District School Board amid accusations that he had plagiarized his Ph.D. thesis; allegations that Globe and Mail columnist Margaret Wente had appropriated the work of others; and many instances in the academy, including my own experiences with plagiarism by my law students – it seems a good time for such a work, from a specifically legal point of view, on this fascinating subject. Of course, one of the first matters I have to consider is the distinctions between plagiarism and copyright violations.
Plagiarism is passing someone else’s work off as your own. If we photocopy a story by J.K. Rowling without her permission but with her name still attached, we infringe her copyright in the work but we are not plagiarizing it. If we photocopy a song by Richard Strauss and replace his name with our own, we plagiarize it but do not violate his copyright: the song would be too old for copyright protection (assuming that it had not acquired a new copyright by being edited heavily and recently, perhaps, by scholars purporting to have just found Strauss’s letters about the song, or a new manuscript of it). Justice Gonthier correctly notes, “Generally, copyright enables the owner to prevent the unauthorized plagiarism and distribution of an original work. It is therefore these acts themselves that are prohibited, without regard to their purpose, be it mercenary or otherwise.” To put it directly, plagiarism can be copyright infringement, but they are not the same thing.
In fact, the justice himself goes on to confound the two: “[I]nfringement of a work, in its most common sense, is synonymous with plagiarism or unlawful appropriation. … Reproducing a work … amounts to plagiarism and constitutes an infringement of the rights of the copyright owner.” Again, people often infringe without plagiarizing, because they don’t claim the copyrighted work as their own; infringement is unlawful use, period, of that work (whether you take credit for the work or not), where plagiarism is appropriation of voice, like identity theft; unless it constitutes some other separate offence at the same time (copyright infringement, conversion, fraud, etc.), generally it is not illegal.
Then again, we can plagiarize without infringing if we appropriate ideas or data. Copyright does not extend to those. Which brings me to a painful example from my own experience.
Decades before the publication of Simon Winchester’s The Meaning of Everything, I proposed to a producer at a national radio network that I create a “biography of the Oxford English Dictionary.” The producer responded that he would consider the project. When he did not reply to my follow-up correspondence, I assumed that he was not interested. I never heard from him again. A few months later, I switched on his program to hear “The Oxford English Dictionary: A Biography,” written and narrated by someone else.
At the time, I was concerned that making a fuss would have soured my opportunities for other writing and broadcasting work. So I fumed in silence. It occurs to me these many years later that I might have made a legal claim that, while copyright existed in neither the idea nor the title, the broadcaster’s appropriating the two together should attract sanction at law: cumulatively, there was a work-product capable of infringement. The producer had taken not just my idea, but my proposed approach, which did not concern simply the OED’s place in lexicographical history (a documentary idea), but its “personal” lifeblood – its conception among its “fathers,” its arduous development, and its continuing influence. In appropriating this and the associated title, the producer filched not just my idea, but its expression, which copyright law protects.
As a writing career these days entails enough of a battering without having your ideas hijacked, besides, the personal and ethical violations continue to chafe, many years later. It of course was never about the small sum of money I might have been paid; it was about the principle – the blatant disdain for professional ethics – and the loss of professional opportunity.
 See, e.g., Jeffrey Miller, “Miami J’yce counsel on the lookout for synteresis,” Where There’s Life, There’s Lawsuits: Not Altogether Serious Ruminations on Law and Life (Toronto: ECW Press, 2003) at 139-44 (described on this website here).
 Ibid. at 393, 398. The defendant gallery had bought reproductions and lithographs of Théberge’s paintings and lifted them onto new media. It was not passing the works off as those of anyone or anything other than Théberge. The majority found the use to be lawful (non-infringing).
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I have mixed feelings about saying this: the law has long lived with “alternative facts.” And it’s lawyers and judges more than politicians who create them.
Legal fictions, and fact-warping legalese, have been with us since the middle ages. Readers of my books and journalism will know my fondness for the “French fries are meat” cases – prosecutions during the early 1900s under Sunday observance (“Lord’s Day”) laws in Britain. Faced with having to whack the poor who patronized fish-and-chip shops for their sabbath dinner – the underclasses whose purses did not stretch to the fish – the courts decided that “chipped potatoes” could comprise “meat” (which the legislation permitted to be sold, so that you could have your “Sunday joint” prepared commercially). As Lord Alverstone, the chief justice of King’s Bench, put it, come Sunday it “would be ridiculous to say that, although a man may cook mutton, he must not cook an eel pie” or spuds: Bullen v. Ward (1905), 74 L.J. (K.B.).
On further consideration, however, “meat” would not shape-shift to ice-cream sandwiches, never mind dictionaries that defined the word as food generally: Slater v. Evans,  2 K.B. 124.
Similarly, the courts have told us that a cucumber can be a weapon (in a sexual assault case) but bagpipes cannot, even considering their aggressive sonority and the fact that pipers have led armies into battle. (A piper made this argument after he was charged under a bylaw for playing a musical instrument on London’s Hampstead Heath, abutting a toney neighbourhood. If you have access to Quicklaw, search for my Lawyers Weekly columns on “bagpipe law” and on the Brooks and Reid cases.) Then, too, there is the Ontario dog-bite case in which the accused animal
through its owner, disclaims any vicious propensity, and contends that Mr. Cochrane brought this unfortunate attack upon himself by acting in such a manner as would lead any reasonable dog to suspect ill motives in Mr. Cochrane’s entry, and that, furthermore, Mr. Cochrane, while in the employ of [the dog’s owner], had on one occasion kicked the German shepherd and that the dog was therefore taking retributive and retaliative action.
Given that the dog avoided destruction courtesy of the evidence supporting these assertions, it seems unreasonable to call the “reasonable dog” fiction facetious. Perhaps “bemusing” suffices, as with another Canadian case that tells us that a parking lot can be a “common bawdy house” if the prostitutes using it have sufficient control over the space, never mind that it is bare asphalt.
At best, the reasonable dog might be an uber-“alternative fact” based on the reasonable person, the legal fiction against whom our law measures whether our own conduct merits praise or liability. But the chipped-potato and bawdy-house instances are not precisely fictions in this way. Calling fries meat, or a parking lot a bawdy house, is not exactly a lie, nor is it true only in the alternative universe of legal dialect.
Still, if ice cream is not meat where “chipped potatoes” are, and bagpipes are not weapons where cucumbers can be, how explain the terrain of fictions rarely if ever noted as such, a near territory so vast that it would be impossible to map it comprehensively?
These are instances when judges give truly uncommon or unexpected meaning to words or phrases – often to expressions as ordinary as “French fries,” but without the logic or linguistic support of the French-fries-as-“meat” cases. There’s the U.S. case which says that if you drive around with a gun in the bed of your pickup truck, you are not “carrying” it. Not be outdone north of the border, Ontario gives us a series of insurance cases interpreting the phrase “you are struck by a vehicle” to mean “you walk into a pole on a parked truck” and “a nearby accident blows your mind.” In the first case, a woman recovered damages for being “struck by a vehicle” after, sure enough, she walked into a pole on a parked truck. In the second, the court ruled that a woman could be struck in this way (and perhaps collect damages for both physical injury and mental distress) while sitting in her kitchen when a car crashed into her home without entering the kitchen or touching her. Such instances approach the political, with the judiciary seeming to reach a desired end by straining syntax beyond even the metaphysics of a “fertile octogenarian” – a hoary legal fiction which posited that humans of any age and physical condition can conceive children.
For more detail on these cases and others, see Chapter Five, “Humpty Dumpty in Wig and Gown: Legalese as Dialect, or, the Philology of Precedent” in my The Structures of Law and Literature. Some of the discussion above grows out of my current work on my encyclopedia of legal fictions and presumptions, and constructive, deemed, and implied entities, slated for publication by next year.
[The following post derives from work on my forthcoming book, Legal Fictions & Presumptions, and Constructive, Deemed, and Implied Entities: An Encyclopedic Analysis of Their Status at Law]
It used to be that our law distinguished between attempts that were impossible in fact and impossible attempts legally. “Factually impossible” meant the intended act was illegal but somehow the “attemptors” were prevented from completing it, even though they thought they could pull it off. These cases include the notorious R. v. Collins, an attempt to pick an empty pocket.
Legal impossibility described a situation where the “criminal” thought he was attempting something illegal but the act was legal. Canadian cases of this variety include R. v. Alicandro, in which the accused was convicted of child-luring over the Internet, when obliviously he had been “luring” a male police officer (in a sting operation) and not a girl under the age of fourteen, and, most importantly, U.S. v. Dynar, in which the accused believed he was helping to launder the proceeds of crime when in fact the money was provided by police in another sting operation.
The distinction between these two “impossibilities,” or confusion about it, led to illogical results – in Collins, that you could not attempt theft from an empty pocket, and in Dynar the dissenting justice’s insistence that, if the money is not in fact proceeds of crime, there is no attempt to launder it. This confounds possibility with execution or the specific actus reus for attempts (as against completed crimes), and confuses attempts with completed crimes. It ignores that if you are unaware that the pocket is empty or the money has no criminal taint, you are still attempting to steal or launder. In either case, insofar as we are considering an inchoate (incomplete) crime, the requisite mens rea (intention) is present; whether the actus reus is possible is irrelevant. Insofar as we might want to require an achievable actus to establish even an attempt (which logically seems unnecessary), we arrive in the realm of legal fiction.
That is, to the extent that we posit that the crime could have been completed, there is a legal fiction – that the pocket could be picked, the girl lured, the money laundered. Indeed, if we insist on preserving the casuistry of the theory of “impossible attempts,” we can posit both a deeming and a fiction: we deem the actus reus possible (we deem the pocket to contain something, the male officer a girl, the money unlawfully obtained) such that we create a legal fiction that the crime could have been completed as attempted.
Wisely, in 1997 the Supreme Court of Canada put paid to the false distinction between factual and legal impossibility, finding it untenable. As Doherty J.A. puts it in Alicandro (at para. 26), “After Dynar, it can safely be said that liability for inchoate offences turns on what the accused believed the material facts to be and not what those facts actually were.” The majority in Dynar holds that the “only relevant distinction for purposes of s. 24(1) of the Criminal Code [attempts] is between imaginary crimes and attempts to do the factually impossible. The criminal law of Canada recognizes no middle category called ‘legal impossibility’.”
 R. v. Collins (1864), Le. and Ca. 471.
 “24 (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.” R.S.C., c. C-34.
It is a useful coincidence that the 119th anniversary of Emile Zola’s J’Accuse occurs exactly a week before the inauguration of Donald Trump as the 45th president of the United States. As viewed by the greater French writer, Anatole France, the trumped-up Alfred Dreyfus case (Zola risked his career writing in support of the Jewish artillery captain) was all about the creation of “false facts” towards political ends.
The Dreyfus Affair, as it’s inevitably styled, roiled France at the turn of the twentieth century, exposing a brutal French dialectic, pitting the often anti-semitic and anti-Republican Establishment against those who came to be called, mostly derisively, “intellectuals.” The upshot, following two trials and the rehabilitation of Dreyfus after it became irrefutable that he had been framed by anti-semites (never mind that the culprits were still regarded as heroic and never prosecuted), was the 1905 Law Concerning the Separation of Church and State, an anti-dialectic at the state level, now enshrined in the French constitution and rigorously enforced as official laicité. Of particular interest, especially given my theory of justice as nostalgia for an Edenic paradise,* is Anatole France’s “Crainquebille,” a short story (available in translation here) that some readers say grew out of the author’s almost obsessive interest in the Dreyfus case.
Unlike the army captain, who never flagged in his stoic patriotism and dignity, an Other who would be Establishment, Crainquebille is dirt poor, a street-hawker who knows his place, which is compliant and humble. He lives in a closet, with chestnut sacks as bedclothes. One morning, his regular customer, a sour cobbler on the rue Montmartre, decides to buy some of his leeks, “the asparagus of the poor.” She takes the stalks into her shop to get Craniquebille’s money, but is distracted by a customer of her own. As Crainquebille waits at his cart, he causes a traffic jam. Police Constable Matra, Agent 64, tells him to move along, and Crainquebille explains that he is waiting to get paid. Inasmuch as he regards civil authority as godlike, he is anxious about talking back in this way, but “does not understand that the enjoyment of an individual right does not excuse one from the fulfillment of his social duty.” Twice more, the police officer tells him to move along. Tearing at his hair under his cap, in “despair more than rebellion” Crainquebille hollers: “But I told you I’m waiting for my money! Just my bloody luck! God help me!”
Agent 64 takes this personally, “and as, for him, all insults took on a traditional form, regular, sacred, ritual and, so to say, liturgical,” he hears it as, “Death to the pigs!” (“Mort aux vaches!”) He arrests Crainquebille, who realizes that he said no such thing, but accepts that he must have done so insofar as an agent of the state says he did. Although an educated passerby, a prominent physician and officer of the Legion of Honour, intervenes to contradict the officer and testifies for the accused at the trial, Crainquebille is convicted, never mind that the courtroom is reduced to laughter when Agent 64 contends that the physician – whose surname, Matthieu, happens to be the first name of Dreyfus’s brother, an ardent advocate in Alfred’s defence – also yelled, “Death to the pigs.” Crainquebille is sentenced to two weeks in jail and a 50-franc fine, which latter is paid by an anonymous patron (presumably Dr. Matthieu).
The disdain for “intellectualism” as against custom and ritual (in the Dreyfus affair, the artistic community against the bourgeois establishment and its church) is satirized twice more. In a section entitled “Apology for Mr. Justice Bourriche” (the trial judge), a lawyer argues that facts are dangerous sophistry and perfidious enemies of civil justice and military justice. Mr. Justice Bourriche is too much of a jurist for his decisions to depend on reason and science, given that these would be subject to eternal dispute. He bases his rulings on blind dogma and the foundation of tradition, such that they are equal in authority with those of the Church. His judgments are canonical, ex cathedra.
Humanity (justice) doesn’t enter into it. It is not Matras the man who makes the accusation against Crainquebille, but a number, Agent 64, and numbers are incorruptible, “pure idea.” “Justice is force,” finally; all society depends on this. (Arguably, this is true even of earthly “paradisal” justice, if we use Eden as a model.) Otherwise, it has no power to impose itself. Society, law and order, are incommensurate with empathy or compassion. Justice is “administered with fixed rules and not with shuddering flesh and intelligent clarity. Above all, it does not ask to be just; as justice, it has no need, and I will tell you that the idea of a just justice could take root only in the mind of an anarchist.” As with Dreyfus, les raisons d’état (state interests) trump individual rights and freedoms.
Crainquebille finds prison cozy – clean, nicely designed, with regular meals. While incarcerated his only concern is for his pushcart, his living. He is otherwise content: “Just as a little boy who goes to catechism recognizes that he is guilty of the sin of Eve, this poor old man believed himself guilty of having mysteriously [mystiquement] offended Agent 64. His arrest has taught him that he had cried ‘Death to the pigs!,’ so he must have cried ‘Death to the pigs!’ … He had been transported to a supernatural world. His conviction at law was his apocalypse.” Under both religious and secular law, sin and crime, human suffering is not just a part of God’s and Caesar’s plan, but a matter of ecstasy. And at the apocalypse, we are redeemed by absolute justice from the grip of mortal law. We must be patient.
The coup de grâce, of course, is that if prison has become a sort of substitute paradise, a reconstituted, poetic vision of justice for Crainquebille, there is no going back. After his release, all is ironic nostalgia. As an ex-convict, he has lost his customers and is sleeping in his cart. In his attempts at Paradise regained, which is to say another arrest and jail-term, he seeks out a gendarme and deliberately hollers “Death to the pigs,” dealing this time with no Agent 64 but a world-weary cynic, who simply tells him to move on. Crainquebille is stranded outside the barred gates of Eden, constituted as a prison cell. His “free will” is ironically more circumscribed than ever, just as we find it to be in a world where increasing technocracy, and sometimes our own political choices, constantly impinge on the freedom they pretend to improve.
Thus are the lies at the heart of injustice normalized, or even made to seem perfect justice, lies “factualized” – something to keep in mind in light of the political sea-change seven days from now.
* See, e.g., last week’s post, here, and the related posts and materials mentioned there, as well as the Justice page of this website.
Perhaps the most worrisome risk of the new nativism – Brexit, Trumpism, and the nationalist, protectionist, and racial-purity movements generally – is the potential that the gap between law and justice will widen. The gap widens because of a commensurate narrowing in our concept of duty, legally and morally – duty to others and to ourselves being the bridge between our legal systems and ideal justice.
Legal duty is generally material: I clear the ice from my walk so that my neighbour doesn’t slip and fall. Given that justice adds a moral component to law, a just duty is both legal and moral: I give to the food bank so that my neighbour doesn’t starve (although there is no legal requirement that I do so.) In the last several decades, the community-centred concepts of honour, duty, and even everyday civility have given way, popularly, to unrelenting self-assertion and self-promotion. This is corrosive of the civilizing instinct: in narrowing duty to ourselves and our immediate circle (even if it is a wide one, as with protectionist nationalism), we are adopting a sort of tribalism that otherwise expresses itself in cults and gangs. We obliviously plump for devolution to smaller, contentious groups – survival of the fattest.
How might we address this fundamentally at law? Happily, there exists a comprehensive “perfectionist” definition of justice that neatly combines law and morality without the need of fundamental overhaul to our existing legal systems or of Rawlsian intellectual legerdemain. This approach does not concern renovation, revolution, or complex philosophical formulae; it simply engages human capability or capacity, at its highest, most flattering, contractarian reaches. I am thinking of the approach Harvard law professor Lon Fuller sketched in the 1940s, in his The Morality of Law, elaborated in some respects in Belgium by Chaim Perelman.
Fuller juxtaposes formal legal duty – undifferentiated rules by which “like is treated alike” – against “the morality of aspiration,” what Perelman would call substantive or concrete justice and what I propose as integrated or perfected justice, utopian in principle but proffered here as, ultimately, a practical original position (as opposed to John Rawls’s more complex, artificial, and ultimately impracticable original position for a just society). For Fuller, aspirational or substantive justice is “the morality of the Good Life, of excellence, of the fullest realization of human powers.” It precedes rules of duty, informing them at their heart. The importance of this is that legal duty can be the bulwark of an unjust society, as with Hitler’s Nuremberg laws or racial-segregation legislation in the United States. Therefore, justice must precede and integrate with law, not be dictated by it.
For Fuller, legal duty is material, “pressure” which “leaves off where the challenge of excellence” – the morality of aspiration – begins. (As I wrote in my first post here, however, my own view is that excellence in justice implies duty at a level more demanding than that of conventional legal “reasonableness.”) Aspiration is perfectionist, utopian, the reach that must exceed our grasp. The requirement that justice reflect the most highly evolved standards of civilization (that we pay justice at least the same attention we accord science, technology, sports, and entertainment in our everyday lives) is the absolute in the equation, and therefore more or less predictable and objective. Otherwise, the standard of “perfected justice” would be too subjective or vague – and yes, idealistic – to be of any value. Its actual form is flexible, within the absolute category of civilization, to meet the practical, reasonable limits of human capacity and society.
“The morality of aspiration,” Fuller explains, “is most plainly exemplified in Greek philosophy. It is the morality of the Good Life, of excellence, of the fullest realization of human powers. In a morality of aspiration there may be overtones of a notion approaching that of duty… . Generally with the Greeks, instead of ideas of right and wrong, of moral claim and moral duty, we have rather the conception of proper and fitting conduct, conduct such as beseems a human being functioning at his best.”
Obviously, such a vision of justice cannot help but be stuck in the aspirational, incapable of absolute achievement. But this impossibility should be the motive force in modern developed societies, a motive force behind civic duty. It is the striving, the “audacity of hope,” to use Barack Obama’s phrase, that has built great democracies across the world, including, we must recall at this signal “populist” moment, the United States. Each attempt to realize the ideal brings us closer to it, even as it avoids us. Recall again an earlier post here on playing Beethoven aspirationally, and consider my own theory of perfected earthly justice as nostalgia for an Edenic paradise. (See, e.g., my The Structures of Law and Literature. In addition to the link, see the “Books” page on this website.)
In an era when more people can read and write than ever, of immediate access to the world’s greatest art, music, and literature, we have come, bizarrely, to attribute success (more than ever) with material acquisition and self-aggrandizement. Donald Trump and his nativist cohort are icons for this. (It is no accident that both Mr. Trump and Mr. Berlusconi are media and development tycoons.) We can only hope that our experience with Mr. Trump as a world leader will bring us to our senses, reminding us of what civilization, and justice, really consist. Otherwise, what the founders of North American democracy called “the pursuit of happiness” will amount to nothing more than starring in our own very grim reality show.
For many of you, the idea of kicking back over the holidays with “lawyer shows” might seem a busman’s (airline pilot’s?) vacation. But I’d submit that what follows – my picks for the best English-language TV shows about lawyers and law practice – transcend the genre: they’re excellent dramas (mostly comedy-dramas) simpliciter. Besides, even when they’re about barristers behaving badly, they remind us that the law can be a profession of champions. They’re all about bridging the gap between law and justice.
Such a ranking is of course a matter of personal taste. So here’s my “qualification of ‘experts’” submission as a
preliminary to my boob-tube advocacy: I offer up these suggestions as a lawyer who has practised at firms small and large, and who has spent most of his career writing about law and society and law and culture, teaching law and culture in law faculties, and laying out a whack of his savings as an unusually avid consumer-collector of these shows. (I even own DVDs of the obscure and fluffy “Law and Disorder,” starring Penelope Keith (of “To the Manor Born”), which never made it beyond its first season (despite an auspicious if fluffy beginning), “Garrow’s Law” (a slow-moving, often awkward dramatization of William Garrow’s practice at the Old Bailey in the late eighteenth century), and the pre-Rumpole Rumpoles, from the origins of the “Old Bailey hack” in John Mortimer’s play, The Dock Brief.)
Four of my five picks are from the U.K. (three from England, one from Ireland), with an Australian production tied for first. Certainly Canada and the U.S. produce entertaining shows in this crowded genre – “Street Legal,” “This Is Wonderland,” “Boston Legal,” “Allie McBeal,” “L.A. Law,” “The Practice”), but they are self-consciously quirky, extravagantly BIG and bizarre, never mind that the producers have selected litigation as a natural theatrical setting that in itself focuses our most challenging experiences down into dramatic tension and catharsis. Really the North American shows don’t achieve the aesthetic quality of even the British and Australian second tier – “Silk,” “The Accused,” “Criminal Justice,” “The Jury,” “Janet King,” and so on. (To my mind, these latter stand up to repeated viewing but are a little too anxious to attain pop appeal.)
One further bias I should specify: I can’t watch the “Law and Order” shows; for me, they’re too Hollywood and stodgy-stagey. The top (in my view) British producers show us law practice pretty well as it is, with modest allowances for the greater, more focused truth of fiction. Of course in their heroism or tragicomedy the protagonists are bigger than we are, but close enough to us that the narratives really resonate. That’s what good drama is.
My top five, in reverse order:
5: “North Square” This engaging show, set in a Leeds barristers’ chambers, ran for only one season, in 2000. But it features Phil Davis, riveting in everything he does, usually with his id barely under control (as here), which quality makes him a favourite of the film director Mike Leigh. Davis plays the clerk to this group of young lawyers (the administrator who in Britain runs the law office and curries favour with solicitors to get his bosses work), running their chambers as though it were a Mafia family. He is desperately loyal, and expects the same from his barristers and staff. In this respect, he is a bit of an archetype in law practice drama, the “support staff” who’s often the real force behind the enterprise. But this iteration of the archetype has added depth insofar as the lonely, manipulative clerk tries to compensate for his shambolic personal life by inserting himself into the private doings of his barristers and underlings. The writer is Peter Moffatt, who also created “Silk” and “Kavanagh, Q.C.” Expect franker representations of sex and street language than we get in North America. At this writing, Amazon.co.uk has boxed sets at competitive prices.
4: “The Irish R.M.” And now for something completely different. Although the cast features many fine Irish actors, the scripts, based as they are on the Somerville and Ross stories of the early 20th century, do not cater to 2016 notions of social correctness. They depend heavily on stereotypes – horse-trading, drunkenness, laziness, poetry – all in the service of setting the rural Irish against the toffy-nosed, “colonial” magistrate from London, played by Peter Boyle (Guthrie Featherstone, Q.C. on the “Rumpole of the Bailey” series; he is even more benign and sympathetic here). While embodying every one of the stereotypes as co-starring drunken roustabout, Niall Tobin – whom you might recall as the bishop in “Ballykissangel,” – implies in the DVD extras that they put even him off a bit. Then again, while playing the magistrate’s crafty landlord, Bryan Murray manages archetypally (if not stereotypically? – think “Ballykissangel” again) to work both sides of the undeclared war, usually to the benefit of the locals, and especially of himself. In other words, the locals generally get the best of things, and the real archetype is the overlord as arrogant dupe. The adaptation is faithful to its cozy literary source, the stories are unfailingly funny and entertaining, and the acting, direction, and photography are first-rate. Even the theme music is appropriately artful, setting the jig “Haste to the Wedding” against a military-style fanfare, complementing the archetypal folk versus overlord narrative. One episode includes a great Irish traditional band featuring Jackie Daly on button accordion. Adapted for television by Rosemary Anne Sisson.
3. “Rumpole of the Bailey”This long-running series (1975-1992) of hour-long episodes shows us the eternal junior barrister as champion of the little guy, convinced that crime is largely a creation of the class system, albeit while Horace Rumpole more or less comfortably (and often ruthlessly) exploits that system himself, never mind that it constantly turns on him. Can there ever be another Rumpole after Leo McKern, who inhabits the character as an alter ego? I have it directly from creator Sir John Mortimer that McKern was for some time afraid of the role’s ruining his career by typecasting him. In any event, I, for one, awaited every new Rumpole book and series with the highest anticipation, no matter that they’d become clichéd and predictable, and no matter that at trial Rumpole was (unrealistically) too often opposed by members of his own chambers. The stories remain comfortable and comforting – a reminder that though life is largely frustrating and disappointing for the (self-declared) idealist, when he sticks to his principles he can do some good, if rarely getting credit for it. (Interestingly, every barrister in my top three views himself, and is viewed in his legal community, as a rebel.) Rumpole’s conservatism, despite his pretensions to being a revolutionary, in some ways dates him; but if that troubles you, you won’t enjoy anything on this list except probably the next entry. (None of the others is for historical revisionists, although the next two picks are very modern indeed.) Amazon generally has boxed sets available at a good price.
2. – tied for first (more or less) “Rake”If you haven’t seen the original Australian version of this show, set in Sydney, you’re in for a rare treat, with enough vulgarity and brashness that you know it would not get made in North America or even Britain (probably not even on cable or by the new digital producers). Richard Roxburgh is superb as the coke-snorting, whore-mongering, gambling, bad-lot-associating, tax-dodging, contemptuous (but not really contemptible: he’s the original charming rogue) barrister. “Rake” has been through four series now, with a hint that another is on the way, in which Roxburgh’s character, Cleaver Green, will (unavoidably) take on a new line of work, one step nearer the Law writ large. (It looked as if it were all going to end with the spectacular accident that concludes the third series, but no one would have that. Mind you, the fourth series is probably the weakest of the lot, although still very well crafted.) As with the other series on this list, the brilliant scripts and the wonderful ensemble cast help make it all possible. Written by Andrew Knight and Peter Duncan (and created by them with Roxburgh). And yes, talk about sex and foul mouths. You’ll be shocked, but laughing. (At this point, you can get boxed sets of seasons one through three, with season four available separately.)
1. “Kavanagh Q.C.”John Thaw (who died at sixty in 2002) is probably best known for his TV interpretation of Colin Dexter’s Inspector Morse, but to my mind he’s just as good, if not better, as the successful barrister James Kavanagh. The show is notable for many strengths, most remarkably for how it manages to be first-rate drama (each episode feels as if it’s an intelligent film) never mind its fidelity to the law of evidence and Anglo-American trial procedure. As with the other series in this ranking, the compelling, timely stories (by Peter Moffatt) intermingle the characters’ personal and professional lives, making graphic the sometimes stressful interplay, including the resulting tensions in chambers. Nicholas Jones is wonderful as the infrequently sympathetic Jeremy Aldermarten, an upper-class twit-barrister who, in one memorable episode, plays the judge in a bar-and-bench production of Gilbert and Sullivan’s “Trial by Jury” while juggling a deeply compromising relationship with a former client. Several episodes include skirmishes over “workplace diversity.”
This program ran for six series of movie-length productions (1995-2001), with not a clanger in the bunch. Again, it features a top-notch ensemble cast, many of whom you’ll recognize from other series (e.g., “The Jewel in the Crown’s” Geraldine James), and, sure enough, with Cliff Parisi playing that archetypal front-line clerk (as in “Rumpole” and “North Square”) who keeps the firm on the straight and narrow while quietly struggling with personal life-crises. Several boxed sets are available.
[Note: This is a cross-post on both my music and law blogs, with minor changes mutatis mutandis.]
Where sometimes we despair of justice, our culture can provide a magical solution. In my law and literature course we consider supernatural rescue in the work of the French writer Marcel Aymé. His story “Dermuche,” for example, concerns a poor simpleton who murders some pensioners for a recording he covets. On death row he exhibits an obsession for “the baby Jesus” (who to his mind conveniently dislikes pensioners), and on Christmas eve he transmogrifies into an infant himself. The authorities guillotine him anyway on Christmas day – only for his lawyer to discover that the pensioners are back among the living. Everyone except, perhaps, the state is redeemed, never mind that the pensioners suddenly can’t find that recording they used to play every Sunday lunchtime. (Read my translation of this unusual Christmas story here.)
Then, too, we look at Cynthia Ozick’s The Puttermesser Papers, tracing the history of the magical golem as a champion of justice for persecuted Jews, and at traditional British ballads – “The Twa Sisters,” in which the fairer, jealous sister drowns the darker and looks to get away with it until travelling minstrels visit the court with a harp they have made out of the corpse. The harp sings out the details of the crime as the murderer and her family listen. Then again, in “Bruton Town,” brothers murder their sister’s suitor: he is a servant and supposedly beneath her. The suitor’s ghost visits the girl in a dream, to report the crime.
As the winter holidays approach, I have been thinking about another instance of justice as magic, in a lovely traditional carol, an antidote to the commercial pap we’re subjected to each December. Over the years, “The Cherry Tree Carol” (a.k.a. “Child 54,” for its appearance in the second volume of Francis James Child’s The English and Scottish Popular Ballads) has enjoyed popular attention, although you don’t hear it these days. Said to have originated in medieval “mysteries,” and based on an apocryphal account of the Virgin Mary’s pregnancy, it has featured on recordings past by Joan Baez, Judy Collins, PPM (Peter, Paul, and Mary), Shirley Collins… . But my personal favourite is the Pentangle version, on their album “Solomon’s Seal,” featuring Jackie McShee on the vocals, and John Renbourn and Bert Jansch on guitar.* (These recordings are all on YouTube. As at least token solidarity with the musicians and their copyright, I don’t provide links. Oh, as it’s the holidays, go on then: https://www.youtube.com/watch?v=ps6sHgbqQSQ.) In fact, another law-and-literature element about this song has lately occurred to me, larger than the magic justice element, or at least more immediately resonant in our times: it gives another archetypal dimension to Mary by making her a disbelieved woman at trial.
Like most modern versions, the Pentangle performance more or less condenses that printed in 1852 in William Sandys’ carol collection. As Child points out, it’s not surprising that this version should be anglicized such that Mary wants a cherry instead of a fig (or a Clementine?). The folk culture adapts material to context. (Other popular versions feature an apple, but the apocrypha give a palm tree.) Apparently heavy with child, she asks Joseph to pluck her a fruit, only to be rebuked, “Let him pluck thee a cherry that brought thee with child.” In the folk tradition, the depiction of Joseph is not without compassion, at least by inference: understandably, he’s an evidence-based guy, a not unreasonable man: even Galileans can be from Missouri. The line resonates as an undertone, a drone note, to the ballad, human but also accusatory of Joseph as much as of Mary. He has convicted Mary without a trial. It’s a sort of victim-blaming, if at the most rarified level, and with a more reasonable excuse than we find often in legal history.
In any event, then comes justice as magic: “Oh then bespoke the babe within his mother’s womb:/ Bow down the tallest tree and give my mother some.” The defence rests, with a cherry on top.
Of course at this time of light festivals we find that same justice-as-magic element in the Chanukah story: the candle oil miraculously burns for eight days so that the Jews can restore the Temple after a campaign of ethnic cleansing by the Greco-Syrians. The light glows even at the solstice. The justice aspect in the carol suggests cultural evolution in itself (which is why I call the treatment of Joseph folk empathy). In the Pseudo-Matthew, Joseph doesn’t use Mary’s craving as an occasion for bitter sarcasm. Rather, he snaps, “The tree’s too high. Anyway, you should be more worried about finding water.”
The evolutionary element should give us hope during this season of light in the dark (all the darker this year, in “light” of socio-political developments in the U.S. and Europe) – that while perfect justice might exceed our grasp in this material world, it is within our reach if only we keep the faith. At least that’s what I tell my students.
* The Pentangle also have produced very nice recordings of “The Twa Sisters” and “Bruton Town” (sure enough, available on YouTube). For more detail on justice as magic, see my The Structures of Law and Literature: Duty, Justice, and Evil in the Cultural Imagination.