ASHES AND SPARKS: ESSAYS ON LAW AND JUSTICE, by Stephen Sedley. Cambridge: Cambridge University Press, 2011. 425pp. Cloth £55.00. ISBN: 59781107000957. Paper £19.99. ISBN: 9780521170901.
Reviewed by Richard A. Cosgrove, Department of History, University of Arizona. Email: rcosgrov [at] u.arizona.edu.
In this collection of essays Stephen Sedley (the Rt. Hon. Lord Justice Sedley, judge of the Court of Appeal of England and Wales from 1999 until his retirement in 2011) presents his ideas on a wide range of topics: political, legal and academic. Many of the articles originally appeared in the London Review of Books, for Sedley had little reticence in making his views known to the public. The book is divided into three parts under the general headings of History, Law, and Justice; and there are a total of 38 essays. How the book is to be reviewed presents difficulties, for different readers will fasten on different chapters for close scrutiny. With this disclosure I will comment on articles that captured my special attention, with the understanding that other scholars might make a contrasting selection. In the interests of fairness, I have chosen two pieces from each section, one that I admire and the other that I believe subject to criticism.
In the admirable category of History there is a 2003 essay in the London Review of Books that reviewed John Langbein’s The Origins of Adversary Criminal Trial and John F. Archbold’s International Criminal Courts, a manual for the trial of individuals accused of crimes against humanity. Sedley devoted most of his attention to Langbein in the hope that readers would understand that criminal trials in the eighteenth century had little resemblance to those of the twenty-first: no presumption of innocence, no defense counsel, brief jury deliberations, and virtually no chance of appeal. Where Sedley believes that Langbein has drawn incorrect conclusions, he presents specific historical evidence to support his position. In particular Sedley was not persuaded by Langbein’s assertion that the older trials sought truth but that modern adversarial trials seek to suppress the truth. There is no reason, Sedley argues, why one form of criminal procedure was any better than the other in determining guilt or innocence. These matters are discussed within a sophisticated historical context.
Archbold’s work sets out the difficulties in procedure when an individual accused of crimes against humanity are brought before an international tribune. How are witnesses to be protected and how can proceedings be shortened without harm to the accused’s rights? Precedents are few and usually contradictory. Should these efforts be abandoned? Sedley concludes that there is no perfect criminal procedure; a legal system can only try its best in an imperfect world.
A review that I believe missed the book’s essential argument appeared in 2006: Rande Kostal’s A Jurisprudence of Power: Victorian Empire and the Rule of Law. Sedley took from Kostal’s [*107] brilliant book that it vindicated the English legal system because, in the aftermath of the 1865 Jamaican rebellion, critics of governor Edward Eyre pursued him through the courts, although ultimately to no avail. Kostal’s work, in my judgment, proved the opposite. The British Empire had no unified jurisprudence save that of power. Legal principles changed from place to place, underpinned by belief in white superiority that vitiated doctrines of law and fairness. This was, of course, to argue that the British were not a uniquely gifted constitutional people. Indeed, as far as the Empire was concerned, the governors made up the law as they went along with little regard for the governed. Sedley does recognize that empire challenged common-law principles; I believe that the historical record demonstrated that imperial law did illustrate the reasonableness of the fears about empire and legality. Sedley concluded that a dual legal system was avoided, whereas I believe that, contrary to the British sense of identity, the Empire was essentially lawless in its foundations.
Under the rubric of Law I read with great admiration the chapter entitled “Never do anything for the first time,” reflections on such issues as precedent and judicial activism. It features several comic parodies of law and jurisprudence that make Sedley’s points effectively. The argument that judges never should or do introduce changes in the law is, of course, sustainable only if you never examine what courts actually do. Precedent brings an element of certainty into the law but not a straitjacket. As early as the twelfth century, Henry II changed the law of his era by the alleged restatement of its antecedents. In this fashion the king shaped the law to his vision of its role. A legal system that does not permit the law to change as society evolves will soon fail to meet society’s needs.
Precedent may be either liberty or bondage, as an individual judge might prefer. To prove his point Sedley stands on its head perhaps the most influential sentence of American jurisprudence: Holmes’s “The life of the law has not been logic; it has been experience.” Sedley argues that logic “injects into experience the vital spark which makes law.” Experience often restricts the law when something is done because it has always been done that way. When logic is applied, the utility of experience becomes an empty framework. This essay will not convince every reader, but its wit and insight should make for interesting reading.
More personal and less persuasive in this area is a 1992 essay “Declining the brief” that seems more of a payback than a sophisticated analysis of topics such as the continuing masculine culture of the bar. A series of conventions that arose when the bar was exclusively male and endures over time should not surprise. In any institutional setting a snail’s pace is usually the case when gender relationships change. It also is ironic that Sedley, one who took great advantage of the ending of the rule of silence imposed upon judges until 1987, criticizes a fellow judge who broke the mould. The late James Pickles might not have been the Establishment judge of stereotype but surely judicial difference serves better than similarity.
In the category of Justice, in my judgment the best chapter in the book [*108] takes the phrase “moral economy,” as used by historian Edward Thompson, to illustrate how judicial review has changed the nature of public law. In this area the growth of the administrative state was predicated on judicial deference to government actions. If parliament wished to implement a particular policy, then the ordinary courts should accept this without interference. This attitude was pioneered by Victorian jurist A.V. Dicey, who held that no administrative law existed in England because the rule of law meant that all disputes between the individual and the state could be settled in those same ordinary courts. This resulted in a century (1880-1980) when courts rarely reviewed government actions. The increasing reliance on judicial review to monitor government activity has depended on expanded public expectations as one side of the legal moral economy that has increased the judicial scrutiny of government actions.
Finally, in the chapter “Overcoming pragmatism,” the author comments on American jurisprudence in examining writings by federal judge Richard Posner. As a man of the Left, Sedley thinks little of the market model in determining judicial decisions. He understands that Posner seeks a liberation from “originalism,” a view that only a strict fidelity to the language of the constitution, as envisaged by the Founding Fathers, should serve as a basis for resolving constitutional arguments. This philosophy presents several problems because most Americans presumably would not approve a return to slavery, abolition of women’s votes, and counting African-Americans as three-fifths persons. And if words such as abortion and privacy do not appear in the constitution or the Bill of Rights, then neither does the word corporation.
Sedley argues correctly that jurists still struggle with a jurisprudence that expects constitutional principle to predict judicial outcome. Most judges would surely state how much easier their task would be if that were the case. But Sedley leaves unstated the argument that capitalism is now a cultural construct, not a system of markets. The heresy in the United States that free markets do not or should not exist has never gained much traction. Only by asserting this, however, does the market model for judicial decision-making become exposed.
In the end these essays provide something of interest for any reader stimulated by contemporary law and opinion. Witty as well as opinionated, Sedley has much to offer. I suspect that most readers in the United Kingdom will welcome the evidence that such a learned individual in law and history had the opportunity to affect the lives of ordinary citizens.
Copyright 2012 by the Author, Richard A. Cosgrove.