Mortimer, John. Rumpole and the Younger Generation (1978)

April 18, 2007

“. . . you will discover during the course of these memoirs that, although I only feel truly alive and happy in law courts, I have a singular distaste for the law.”

Rumpole and the Younger Generation is the first of Sir John Mortimer’s short story’s chronicling the illustrious career of one Horace Rumpole, barrister (while it is a short story one can find it in book form published by Penguin, which is how I happened to read it).

Mr. Rumpole is a barrister that spends his days fighting for Justice in the Old Bailey (England’s Criminal Court for those of you not in the know). While the whole of the story deals with the law in one way or the other, I will only address two of the substantive themes that occur within the story: the characterization of Rumpole as the lawyer’s lawyer and Rumpole’s ideas about criminal law as being at the heart of the legal system.

Mortimer has created the quintessential English barrister in Rumpole. In and out of court he is quick and witty, he can qoute lines of Wordsworth to fit most situations, and he very adept in court as well. At the same time though he can be reflective and philosophical. In short, Rumpole is the type of lawyer that other lawyer’s like to read about; he is a lawyer’s lawyer. Let’s face it, we lawyer’s revel in the idea of making a judge look like a fool in court and getting away with it. We love the idea of solving the case at the last minute with innovative surprise evidence. And despite our dubious reputation we like to think that we really do seek justice when we go to court. Rumpole embodies one of the great lawyer archetypes, which I’ll dub the gentleman lawyer. He doesn’t have the perfect record or the cut throat persona that we often see displayed in other lawyer characters, what he has though is charisma and charm. The way in which he carries himself allows him to seem nonthreatening, but this is his greatest weapon in the courtroom. He is a lawyer that loves the court room, yet retains human dimensions outside the courtroom, too. To sum up he is more than a good lawyer; Rumpole is a good man.

The second theme that I will deal with revolves around Rumpoles ideas about criminal law. My father once told me that the most fun he ever had while practicing law was when he was a criminal lawyer. This idea is somewhat reflected in Rumpole’s statement that a “person who is tired of crime . . . is tired of life.” In the story the head of Rumpole’s chambers is retring and it is time to choose a new head of chambers. While Rumpole is the most senior barrister, he also has an entirely criminal practice, and there are some in the chambers that feel as though this is the wrong direction to be taking. Thus Rumpole must defend his devotion to criminal law when it is asserted by his mentor (and the out going head of chambers) that “too much criminal work does rather lower the standing of a chambers.” When one lawyer states that the chambers should move more towards tax Rumpole sarcastically responds “compared to the wonderful world of tax, crime is totally trivial.” This conflict represents a real conflict in law, and one that is troubling. There is not money in criminal law, glory maybe, but no money. Yet criminal law may be the most important type of law there is. It is through criminal proceeding that the true measure of justice is found. If we can depend on the criminal courts to be just for others then they are likely to be just for ourselves as well. When, though, we are in an advesarial system of law and criminals are routinely represented by over worked public defenders, second rate lawyers, or even law students the justice in the system can be easily challenged. Quite simply, we need more Rumpole’s in criminal law, but we have no way of luring them there (as criminals are commonly not well off).

Rumpole and the Younger Generation (Penguin 60s)
Sir John Mortimer

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Dworkin, Ronald – Freedom’s Law: Moral Readings of the American Constitution (1996)

February 2, 2007

“The moral reading proposes that we all – Judges, lawyers, citizens – interpret and apply these abstract clauses on the understanding that they invoke moral principles about political decency and justice.”

Ronald Dworkin presents, in this volume, a series of essays that he uses to highlight what he calls a “moral reading” of the constitution. This moral reading requires the jurist (or whoever else might be working with the document) to interpret the abstract terms of the Bill of Rights “on the understanding that they invoke moral principles about political decency and justice.” He sets this type of reading up as the opposite of an original intent type reading, the abolition of which seems to be his project. My initial and primary problem with his ideas is that he holds that there is no middle ground between the two readings, and bases it on the fact that no one has yet really defined any sort of reading. I find this to be a bit misleading. Intent is important when we look at the law, and this is why “legislative intent” is so often examined when courts must rule on statutes. The Constitution is a historical document and the intent of the framers is quite important when interpreting it, but that should not be the only factor as the document has grown and must grow to deal with new legal quandaries that the framers would not have or could not have had in mind. Dworkin ignores any sort of balancing test that would allow for a mixing of different views to bring about justice.

Dworkin’s project seems less like an attempt to explain constitutional ideas and more like an assault on conservatives and conservative ideals. In my opinion this assault puts his own credibility into question. His disdain for not just conservative ideas, but also for specific figures becomes overpowering by the end of the book. In the final chapter he quotes, with admiration, Judge Learned Hand, who said, “The spirit of liberty is the spirit which is not to sure that it is right.” Dworkin suffers from being too sure that he is right. I am no constitutional lawyer, but I felt that too often he attempted to shrug off doctrines that he did not agree with as obviously wrong based on the fact that they were conservative in nature. I will try and make this more apparent below in the short discussions of each of his three sections of the book: I. Life, Death, and Race; II. Speech, Conscience, and Sex; and III. Judges.

In the first section of the book Dworkin reveals to the reader the first of his two obsessions in the book: abortion. Of the six chapters the first four cover it directly, the fifth deals with tangentially, and the sixth somehow manages to deal with both abortion and affirmative action at the same time (and abortion is probably mentioned in every other essay in the book). As a result Dworkin seems to repeat himself quite a bit by the end of this section (granted these are collected essays so it has more to do with bad editing than bad writing). Dworkin’s premise is that if one applies his moral reading to the constitution then one will come to the conclusion that Roe v. Wade is (and I remember this word being used somewhere) “obviously” right and that fetuses aren’t Constitutional Persons and thus a state has no right to protect them until the third trimester. I had a few qualms about his argument. First, on a technical note it seems that Dworkin really likes to cite himself as a reference, and I find that inherently problematic. Second, I feel as though Dworkin doesn’t engage with the language of Roe v. Wade at all. Instead, I found that he accepts the result of the ruling, but attempts to write in his own reasoning instead of that which the court used. In other words he justifies it in his own terms. Third, I felt like he did a little dance around the crux of what makes abortion and Roe not just controversial, but also a very difficult subject matter that readily leads to different conclusions for different people. He chooses to frame the question around whether a fetus is a “constitutional person” and twice compares fetuses to corporations (the analogy being that they are a being or a person, but that their rights can’t trump fundamental rights of constitutional persons i.e. potential mothers). He seems to skip, in my opinion, the idea that if we deem a fetus a human being it might very well have rights and that there are reasonable arguments for doing so. Instead he hides the ball by using the term “intrinsic value in human life” and making a misplaced value judgment that a fetus deserves recognition as a person with rights when it is recognizable, or has brain functions, or is viable. I don’t fault him for his opinion on Roe, but I never understood how another person applying the same moral test, might not come to the opposite conclusion based on moral principles? His obvious outcome is tied up in ones personal philosophy, which (and this is my final problem) leads him to then makes an ill-founded establishment clause argument. Essentially: if most Christians believe that abortion is wrong, then banning it violates the first amendment. Most Christians were against alcohol during prohibition (lets assume), but the banning of alcohol was proper function of the commerce clause (as interpreted), thus just because a group supported it it doesn’t follow that it violates the establishment clause. It doesn’t follow that if a state decides that a fetus is human being and has a right to life that this is inherently based on religion because Christians support it. This is not to discount religious involvement in the political arena, certainly any such law would be supported by religious groups, but “support for” is different from religiously based. It really is a question of personal philosophy, and it is not a simple as Dworkin wants one to believe.

The second section on the book, Speech, Conscience, and Sex, is where Dworkin shines in the volume. He, in this section, does engage with the Supreme Courts rulings on free speech in a way that not only explicates those rulings, but also makes his views clear on them. He begins with a discussion of New York Times v. Sullivan in light of two major trials involving slander and military generals, and follows it up with an essay as to why that sort of freedom is essential to our democracy. He ends the section with a discussion of Academic Freedom, which I think manages to effectively deal with numerous misconceptions that people have about the academic freedom and to make a valuable argument as to why a state should not meddle with researchers in its colleges. But Dworkin really shines in his essay “McKinnon’s Words,” which is an assault on Katharine McKinnon’s book Only Words and her anti-pornography statutes. McKinnon is a well known radical feminist whose project seeks to bring equality through the law. She started out as a Marxist and so her views often embrace very radical alterations in legal structures. In her book, she argues that pornography should be banned because it violates women’s fourteenth amendment rights to “equal protection” by subjecting them to prejudice and objectification which alienates them from the political process. Her argument runs that equal protection should not be sacrificed to the freedom of speech. She also managed to pass two anti pornography statutes one in the US and one in Canada. The one in the US was struck down as unconstitutional, the one in Canada (due to her definition of pornography – which is flawed) resulted in numerous items being banned including a book by critic bell hooks (hows that for irony). Dworkin sees these ideas as fundamentally flawed and I think rightfully so. He argues that it is the value that we place on freedom of speech in this country that allows for the open political process to work, and that for it to work some dubious things must be allowed to be communicated (including pornography with no political value). If the government can ban these items the slippery slope is open and we all suffer due to exclusion from the political process. He also prints his reply to the letter she published as a response to his article when it was originally published. He states that she called his article “ignorant, appalling, shocking, rock-throwing junk” and compares him to “kept writers in pornography magazines.” Now I haven’t read her actual letter, but if Dworkin reports correctly (I think he probably does) then it show McKinnon’s inability to take part in the actual conversation; instead she opts for the fireworks.

The final section of Dworkin’s book is entitled Judges and this is where you find his true colors. The first three chapters deal with the nomination and defeat of Robert Bork by president Regean to the Supreme Court. Bork is Dworkin’s second obsession and is mentioned in most, if not every essay, in the book and mentioned with great disdain at that. Dworkin frames this nomination as an important moment in the history of the court, but I don’t think it lived up to Dworkin’s expectations. Instead, it seems as though Dworkin has some sort of petty vendetta against Bork, and maybe more disturbingly his constitutional theory really begins to shine through as one that only accepts liberal views as valid. He seems shocked that Bork’s nomination was politicized by Regean, but openly seems to endorse liberals voting against conservative candidates based on their conservative views. Then he argues that Congress should vote on the virtue of the candidates constitutional philosophy, but hints that anything but a liberal philosophy should be voted down. This is expanded with his discussion in the next two chapters which cover the Clarence Thomas hearings. He is dismayed that the administration is openly nominating candidates that it hopes would overturn Roe v. Wade. He skips what a lot of people skip when discussing stare decisis: What if the tables were turned and Roe went the other way? Would he be as outraged if a liberal administration decided to appoint justices that would overturn that decision? Probably not because he would think that the decision was inherently wrong, but he won’t extend that sort argument to a conservative point of view (because he refuses to accept any sort of conservative critique as valid). He also discusses the constitutional philosophies of these two candidates as if “no constitutional lawyer” would buy into them, but it should read no “liberal constitutional lawyer.” He so sure that he is right that he fails to see that many of the doctrines are currently working to shape our constitution from the bench, and are by virtue of the fact they are quite relevant.

One final point, something that struck me as strange. He mentions that the “black community” supported Thomas and that after he got to the court some tried to justify their support with the idea that if Thomas didn’t make it then it would just be a white conservative (thus better to have a black conservative). Dworkin argues that it is “more insulting” to blacks to have a black conservative on the bench. I wonder if Dworkin thinks Thomas is not a “credit to his race.” Why shouldn’t Thomas be conservative and black, and more importantly, Dworkin, why should that insult black people in a country that prides itself in a multiplicity of views.

To sum up, Dworkin makes some very interesting arguments and is an important jurist, but he is so lost in his political agenda that the law gets left behind so he can pursue his project against conservatism.

Ronald Dworkin