Vol. 3 No. 3 (March, 1993) pp. 19-20
THE BARRISTER'S WORLD AND THE NATURE OF LAW by John Morison and
Philip Leith. Milton Keynes and Philadelphia: Open University
Press. 1992. 216 pp. Paper
Reviewed by Burton M. Atkins, Department of Political Science,
Florida State University.
We've seen a growing interest, as there should be, in
understanding legal systems, their substance, actors and
processes, in cross-cultural or cross-national contexts, be they
truly comparative or single nation studies with comparative
overtones. This book about the role of barristers in the English
legal system by two lecturers at the School of Law, Queen's
University Belfast, follows in this tradition, although the focus
is clearly on barristers operating in the context of the British
legal system.
The book addresses two general themes and problems. One relates
to the authors' attempt to use their study of barristers as a
forum for encouraging British legal scholars to move in the
direction of American research traditions, and especially those
that move away from legal formalism towards a realistic appraisal
of law and legal systems. Much emphasis is placed on American
legal realism, and on Jerome Frank's work particularly. Morison
and Leith argue that the barristers role in the legal system is
best understood through how the process of advocacy affects the
content and formation of law, or what they call "the
non-textual nature of law" (vii). This is found, not by
focusing on the formalities of what counsel do but by examining
how advocacy evolves in litigation. In focusing on the nexus
between barristers and advocacy, they draw explicitly upon
American research traditions because they are perceived to be
more comfortable than are the British with understanding the
realities of law and of the legal process.
They thus find the roots of their thinking in Frank's legendary
debunking of the legal system. They discuss Frank's work briefly
at the outset (p 16), but devote much of Part III, and especially
chapter 9, to linking what they describe as the core of the
barristers world, advocacy and legal information, to the tenets
of the realist movement. Once taking us through the landscape of
rule and fact skepticism they acknowledge themselves to be
unabashed information skeptics.
In large measure, these sections of the book cover well-traversed
terrain. Most of the book, however, is concerned with
understanding the role of barristers by focusing upon the
interactions between barristers and other actors in the legal
process that form the barristers world. They also examine the
processes by which legal information is constructed through
advocacy. For Morison and Leith, advocacy is the central and
defining aspect to the barrister's function. (pp 22-23). They see
law as rhetorical not logical, that is, they are more concerned
with the structure of the information that goes into advocacy
than with the formal basis of law itself. Thus, much of their
effort goes into exploring how legal information evolves. Much
emphasis is placed on the network of professional relationships
between barristers, on the one hand, and clerks who work in
barristers chambers, judges and opposition barristers in court on
the other. A central relationship for barristers, however, is
with the other branch of the divided English legal system, the
solicitors who serve as "one pivot" (p. 52) of the
barristers world. Solicitors are central to the barristers world
because they define "how information is selected, perceived
and handled" (p.75) as cases are brought to barristers with
an eye towards eventual courtroom argumentation. As Morison and
Leith put it, "the dynamics of the barrister-solicitor
relationship affect everything the barrister does..." (p.75)
This book is a refreshing examination of the way in which
solicitors, counsel, judges and clients interact to structure the
context and content of law. It is organized and written clearly.
Those interested in reading about the legal profession in Britain
will find it informative. However, some aspects of the book are
troublesome. A notable one is that Morison and Leith do not tell
us much about how this research was conducted. They mention that
interviews were carried out with a "relatively random"
(p.14)
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sample of barristers, apparently mostly in Belfast, but some,
more than they intended, in England, Wales, and Scotland. We are
not informed about how many barristers were interviewed, nor are
we provided the inventory of questions posed. They are pleased,
as they point out in the preface, that their interview
methodology was not "crudely empirical" and that their
goal was to capture the barristers' "style of
thinking". They feel they have accomplished their task where
"crude empiricists" have apparently failed. Its
unfortunate that they did not take a more rigorous view of their
data collection, or at least they do not tell us about it,
because their failure to do so encourages the reader into joining
the authors as information skeptics, at least for the purposes of
interpreting this book. Nevertheless, it is an interesting look
at the barristers branch of the British legal profession.
Copyright 1993