A Thought of One's Own

The cold weather seems to have well and truly arrived now, and my immediate response to it is to build a nest of blankets and spend days with books and pajamas. But the cold weather can only mean one thing, and that's the start of a new term at the good old university. And that means several things.

The first and most worrying is the mock exam paper waiting for me that I just don't seem to be able to convince my brain that it wants to revise for. Luckily, real exams are still some time away so panic mode hasn't quite set in. But more distantly loom days and night of intense study, caffeine galore, and the inevitable tutorials, which either go so well, or so so badly.

Then there's the looming prospect of working on two separate editorial boards in addition to my ordinary (heavy) workload. Although it seems like madness, building up things like this is just the only way to build up a strong application for training contracts, so its commitment full speed ahead for me at the moment. It does mean the building of skills that others won't necessarily have, and demands time planning, which all employers love, so we have to embrace the madness, and engage in the tightest of scheduling.

So with law streaming in and out of my mind at the speed of light, the prospect of packing my belongings for another year of learning, socialising and experiencing life as a law student looms.

Inspired by the film release of Anna Karenina with Keira Knightley, I thought I'd have a read of some of the great Russian literature around. So I have recently boldly worked my way through The Brothers Karamazov by Dostoyevsky and Anna Karenina by Tolstoy. They're two very different books with very different styles, and I got on much better with the latter than with the former.

Although both writers were living in the same rough time period (from the 1820s to the end of that century), they have very different takes on writing. Dostoyevsky makes you really work, in the same way I think as Hugo does, so that you're compelled to continue reading a lot of the time not through interest in the plot but in trying to figure out what exactly it is you're reading about. It didn't help of course that Russian names are confusing at first sight: someone will have their birth name, they patronym, which tells you who their father was and is different for males and females, their family name, and their affectionate nickname used only by family and close friends. So we have Anna Karenina, who is also Anna Arkadyevna, although at least she doesn't have a nickname. Her son is Sergei Karenin, also Sergei Alexeyich, also Seryozha. That's not so hard to figure out in Tolstoy, but in Dostoyevsky you dive in and have to realise that Aloysha is also Alexey and that they're all Fyodorovich and Karamazovs. It gets you a bit tangled up if you're not familiar with it.

As for plot, again Tolstoy does it better for me. The plot in The Brothers Karamazov is convoluted and has a fair few characters, but really very little happens in it. The outcome is depressing enough, the picture of the justice system is too, but really there's not much story to get your teeth into. The long investigations into religious principles will get you thinking if you feel like it, but it seems the book is largely a vehicle for views with not much of a plot to hold it together. Anna Karenina has some elements of religious and moral investigation too: the heroine is tormented by guilt and Levin, a less vital character, does a lot of thinking about religion towards the end of the book, and leaves us with the message that it's ok to not understand life as long as you spend your life in the pursuit of goodness. But Anna Karenina on the whole is an easier read, written in a much more accessible style, and there's much more plot to get your teeth into. There are a myriad of realistic, active characters who engage in various activities and vices and the main plot is supported by a couple of smaller ones that tie in nicely.

I couldn't help thinking that Anna Karenina is pretty similar to a Greek tragedy in a lot of ways, and although I was constantly propelled to read more because the book is well written, I found it hard to really connect with Anna. She's pretty all over the place, and seems to transform completely from someone lovable and sensible to someone just a bit bonkers. There's a strong message about the dangers of social interactions in there, but really Anna's behaviour just doesn't make sense to me, although that is at least part of the point.

All in all having read both books I feel I have a better understanding of Russian culture and history at that time, which is in itself interesting, and there was something to appreciate in both books.

A more academic post than usual, I thought I'd explore my thoughts on some administrative law as a revision exercise.

Proportionality is a principle in EU and ECHR law that requires that there be a reasonable relationship between the objective which is sought to be achieved and the means used to achieve it. UK courts already use this principle when reviewing actions or legislation for ECHR or EU law compatibility but a question has arisen as to whether it is also a ground of review in domestic administrative law, or, more controversially, whether it ought to be. There are dedicated advocates on both side of the debate, with some holding that proportionality is only suitable for rights based cases, others that it could be a general head of review, and still more academics proposing a bifurcated approach using proportionality and Wednesbury unreasonableness. The back and forth between Craig, Hickman, Taggart, King etc has filled a whole special edition law journal (New Zealand Law Review, 2010) as they argue about the pros and cons of proportionality and it's proper place. The debate centres on the fact that proportionality is a more searching standard of review than Wednesbury unreasonableness, and the question of what the current situation is can hardly be separated from opinions from both judges and academics as to how it should be.

It was stated in R (Association of British Civilian Internees: Far East Region) v SSD by the Court of Appeal that they had difficulty in seeing what justification there now was for retaining the Wednesbury test, but that court was not able to abolish it. There does seem to be a fair amount of hostility towards Wednesbury around (I myself despise having to type it: you always end up with Wednesday instead). In the light of the increasing influence of comparative and international law on UK courts both in statutes such as the HRA and ECA and in judgments themselves, where judges are more inclined than before to consider international cases as 'soft law' to create a framework for their own decisions, it would seem that accepting an international test into domestic law would make sense, especially since the courts already use it in regards to EU and ECHR cases. However, some objections can be raised to doing so, and there is heated academic debate on the issue.

One objection raised to proportionality as a general ground of review is that proportionality does not translate well to non-rights based cases. Taggart argues that proportionality is useful only in certain contexts and he and Hickman argue that it would be a reversal of the current burden of proof,  thus imposing an unfair burden on administrative bodies. They argue that although Wednesbury unreasonableness is a 'safety net' test, engaged where the case is so outrageous as to not fall into other categories of review, proportionality is a starting point test to which one would automatically go. The result of this is, they would argue, that where a proportionality assessment is engaged, it is presupposed that the alleged act, rule, or decision is presumptively unfair because it infringes a right, so it must be justified by the person doing it. Contrastingly, unreasonableness review presupposes the act is lawful, putting the burden of proof on the affected party to show that it is not. If this is the case, general proportionality review is not desirable from a cost point of view, as it would encourage wasteful litigation from those trying to take advantage.

However, this view has been countered by Paul Craig, who argues that the EU has managed perfectly well with proportionality as a general head of review for forty years (Hickman rejects this argument because of the lack of precedent in UK or common law jurisdictions for using proportionality this way).

He argues that objections fail to realise that proportionality review being applicable to all administrative decisions does not mean that it would be the only head of review, and that it has better normative and practical justifications than rationality review. Furthermore, proportionality requires that the decision making body justifies its choice in response to a challenge in exactly the same way as rationality: the criteria are what differs and not the direction of the burden of proof.

Craig argues that proportionality has a threefold normative justification as a head of review. Firstly, it fits with the belief that a public body is given power for a purpose, and the court should review to ensure it keeps broadly to that purpose, ie, that administrative action requires reasoned justification. Craig further argues that there are structural benefits to proportionality because Wednesbury unreasonableness is often applied in a structurally lacking way, and that it would be more simple to have one test across the board, although critics take issue with this statement too. The point is perhaps less convincing because a pragmatic simplicity cannot form a principled basis for a legal doctrine, but it is worth keeping it in mind in terms of administrative efficiency.

The benefits of the structure of proportionality as Craig describes it may well counter suggestions that proportionality puts the burden of proof the wrong way round. Craig argues that the structural benefit is that the agency must show that the challenged action was necessary and suitable, and that it did not impose an excessive burden, whilst the court must show the opposite to quash the decision. This seems like a fair approach, and where there was no clear decision either way, as is likely to often be the case, it would be a balance of the two sides that decided the result. This balance is perhaps played down in the conception of proportionality in the British courts, as Rivers argues, whilst in Europe the balancing is the key.

Craig offers further support for proportionality as a head of review in the form of criticisms of rationality review, or Wednesbury unreasonableness. Practically, he argues, if one were to have proportionality as only a rights based inquiry, as Mike Taggart suggests, rationality review would rarely be useful in the Wednesbury form. Because of the high standard of proof, although cases of a decision that no reasonable decision maker could have made could in principle arise, in practice it would be very hard to prove such a departure from reason. Furthermore, in practice, this is not how the courts use the test: both Sedley J and the Court of Appeal have acknowledge that it suffices to show some error of reasoning that robs the decision of its logical integrity, which is not in fact the test formulated by Lord Greene.

Lord Bingham held in A v Secretary of State for the Home Department that the intensity of review is much greater under the proportionality approach. This is desirable in many ways, as it means that the court can consider alternative courses of action instead of being limited to the narrow considerations under Wednesbury, although this leads judges onto controversial ground. However, King would have it limited for that very reason, restricted to cases where there is a special reason for more intensive review, and keeping rationality review otherwise. This doesn't have the advantage of simplicity, but it does at least recognise the role proportionality can legitimately play in English administrative law.

The criticisms of the test itself in Wednesbury can be coupled with the argument that although there are normative reasons for rationality review, there are none for so strict a form of review as Wednesbury presents. Lord Cooke in Daly said as much, and suggested instead a less extreme test of whether a reasonable decision maker could have reached the decision. The need for a separation of powers and the avoidance of courts substituting judgments does not require that so narrow a category of decisions be quashed, and indeed Allan argues that there is a risk of courts showing too much deference to administrative decisions with the result that they fail to fulfil their duty in protecting administrative rights. Craig further argues that Wednesbury review can lead to the very judgment substitution it seeks to avoid because courts have enough latitude to decide whether to review on rationality or purpose and relevance that they can effectively decide what tools they will use.

Although the debate as to the theoretical desirability of proportionality as a general head rages, the courts thus far have shown little inclination to adopt it as such. The House of Lords held in Brind that they would not accept proportionality as a separate head of review in domestic law. This does not mean that there is not still some momentum for the change: both Lord Cooke and Lord Slynn in R v Chief Constable of Sussex ex parte ITF ltd and Alconbury respectively have recognised that proportionality and rationality review can in fact result in the same outcome, resulting in a question arising of whether they even need to be kept separate, and whether it makes sense to do so. Despite this, proportionality is not at present a separate head of review in English law, despite the convincing arguments that it may be a desirable move for the law to take. It is conceivable that in the years to come, if the UK continues to adopt large portions of European law, that the courts will reconsider the decision in Brind, but it seems at present that there is not a great enough momentum for such a change.

Personally, I don't feel all the fuss is justified. The Wednesbury test is messy, uncertain, and the whole thing is just a bit all over the place since all our ultra vires reasons seem to overlap: being unreasonable is also sometimes acting on irrelevant considerations and it might be completely absurd too, etc etc. Lord Greene recognised that when he 'devised' the test in Wednesbury itself. So why not sweep up a bit, get rid of the strange test we have (which isn't really 'traditional' because it's only been around since 1948) and adopt something we're already using, we already have rules for, and have a nice clear test across the board? I don't really see a problem with more searching standards: we don't control the government enough, and all the arguments for deference seem a bit, well, pointless. Democratic mandate doesn't mean you can start doing nonsensical things, and although some politicians are lawyers, they aren't all, and they probably don't have the same level of expertise as a Supreme Court judge to know what the law they're making is doing. Yes, there's going to be a line somewhere between leave the administrative body alone and interfere for the general good, but I think really we can trust judges to figure out what they're doing by and large. It's not as if Parliament can't pass legislation to reverse decisions anyway. All of this makes me a contextual institutionalist, by the way, according to King's rather long article.

There is a lack of variety in the law degree. Although the law is a time consuming and hugely varied topic of study, it can be frustrating sometimes to be stuck with a choice of this law or that law and nothing else. I find this especially noteworthy when I talk to friends who study the sciences, who get so much choice in what they study. This is at least partly because they're all doing four year courses instead of the standard three that a law degree takes, but I still find it hard to see how Spanish studies are particularly relevant to a Chemistry degree.

Admittedly, the reason we have such limited scope for choice is because we do a qualifying law degree and that means we have to do the units that every law has to know a bit about like Criminal, Tort, Contract, etc, but when it comes to choosing the two units I do get a say in, the range seems pretty limited. There's one non-law topic on the options list, a couple of historical types of law, and the rest boils down to international law, which is not yet compulsory but probably will be one day, and company and commercial type law. Oh, and family law, but how many people are going to take that, with it's huge content of depressing and misery inducing divorce cases?

There's the further question of whether taking a non-commercial option is going to do your employment prospects any harm, although somehow I doubt the employer really cares as long as you've got your 2:1 or better and not failed any of the compulsory modules.

But still, would it really be so hard to offer a bit of economics in the law course? A touch of politics? A sliver of sociology? I mean, learning all about the law is a bit useless if you have no idea about the context. You learn briefly about habeas corpus and how important it is, but don't really look at where it came from historically. You hear about the government trying to control terrorism but are expected to have enough of your own background political knowledge to grasp what exactly the government was/is doing. Plus it would be nice to slow down every now and again and really look into something. But alas, it seems for now that the choice looms between company and commercial law units...

I know I already mentioned this book but I wanted to do it full justice. It was recommended to me by a tutor, and since I wasn't reading anything I thought I'd give it a go. I think it's rather strangely written. 


The author is very good at setting up the characters, through glimpses of their everyday lives we get to know various people from various walks of life in varying degrees. Some people get only one paragraph in the whole book, others get whole chapters, but it's clear throughout that they are all interconnected. 


The book's official description says it's about the time just before Tienanmen Square and the democratic wall, and that's true, that's when it's set, but I think if you want to know more about this time in China from a historical viewpoint it's the wrong book to read. It's very much grassroots, and you see the effects of the revolution and change without seeing any of the change itself. 


I struggled a bit with the end, because having set up all these characters and this tense position of plot, the story ends very suddenly, and not very satisfyingly. She does bring it all together very well,  but you feel that it was all a bit of a waste of time instead of feeling the turmoil and perhaps hope that I would have expected from that era. But then I suppose that's how the normal everyday people would have felt. 


I also found it hard in places to really connect with the characters and their motives. Sometimes you could completely understand their fears and passions, but at other points what a character is doing and why just doesn't seem to make much sense and it's not really resolved by the end of the book. 


But all in all it was a reasonably thought provoking and well written story, although I would have liked the character development to be a bit more sturdy and perhaps a bit more story past the point where the novel ends. 

I think everybody has at least one friend who they stay friends with just out of a sense of duty and not because they genuinely like them anymore. As an aspiring lawyer that takes on a new level in many ways because friends aren't just there for fun. Friends can be the key to meeting the right people, having the right connections. So although you're not going to miss them, you might miss their contacts. 


That might seem like a cynical view, but remember that the bar in particular is made up overwhelmingly of Etonian types with plenty of money, and plenty of friends. Getting in there is still about the friends, even if we wish it wasn't. 


Of course, you can do it without, but you don't want to do anything that might make things harder, so you want to do it with. Plus, if you make an enemy or end up with an unpleasant relationship with someone important then that could really screw up your prospects. 


My university has a bar society, and the people that run it are the slimiest one-upping type folk. They ooze trying too hard. They're charming when they need to be, and love to shoulder rub with anyone mildly important. And of course they're hopelessly rude to everyone else. That's not what I wanted law to be like. I had hoped it would be an intellectual environment where everyone was dedicated to their studies and hardworking and everyone would sort of get along because we're all in it together. 


But you're never allowed to forget about class and money. 

I think I'm going in a new direction as a reader at the moment. Over the last couple of years I've mainly been working my way through the classics and non-fiction, with the occasional bit of modern work from an author I know to be good or as new bits of series come out. But lately I've been more inclined towards Asian writing. 


At school I studied Chinese Cinderella, which I sort of liked at the time but wasn't a massive fan of. More recently I've been reading The Vagrants, which is again about China, and really quite disturbing. It follows various characters about one generation after the Communist revolution. Some of them like it, some of them don't but won't say anything, some of them have said something and are punished for it, and others don't even seem aware that it happened. But the characters are all connected; they all live in the one small town, and their lives are all intertwined whether they know it or not. It's quite good thus far, although I haven't finished it yet. 


On a slightly odder note I've also been rereading Franz Kafka's Metamorphosis, which is just weird. Everyone knows that one morning Gregor Sansa woke up to find he'd been turned into a  cockroach, many of them because it made its way onto the SATs syllabus a few years ago. But what I find most odd is that nobody seems to ask why. They just hope it'll go back and carry on, but then that is the point, because it highlights the absurdity of life. You get the feeling quite strongly that it demonstrates that the working class don't really have any other choice but to just carry on regardless. 


But anyway, as to the Asian side, I think it's because I got bored of European literature (and I haven't yet found it in me to like American stuff really) because it's too familiar. So I'm heading to other cultures to try and find something a bit more new. Because that's really why you read, isn't it, to broaden your own experience into things you've never encountered through fiction. 


Or maybe you just like stories. But that seems a bit mundane. 

It's difficult to feel creative when you're massively overworked. You expect uni to be challenging, that's part of the appeal, but I'm currently suffering under the burden of an overzealous tutor who sets three times more work than a normal tutor would and, furthermore, expects that you will never argue with their opinion, ever. Because of course they're always right. Which is frustrating, because it means there's absolutely no possibility of any sort of theoretical discussion because it's just: this is how it is, and we're not going to discuss how it could be. 


Because there are two main ways of looking at law, it seems. You can look at it as some strange body of a thing that we don't make but instead decode from cryptic revelations of logic, or as a man made structure that can be altered and adjusted according to theoretical and practical needs. Mostly this tutor of mine is in the former camp, and I'm in the latter. So when I suggest a theoretical basis for a change, I get shut down with 'there's no precedent for that' and we carry on talking about what she thinks. Which annoys me. 


I was under the impression that law was about facilitating justice and the right outcomes. You only have to look at administrative law or criminal law to see that judges will bend over backwards to make the law do what is morally or 'naturally' just. So if something is clearly producing unfair results (take, for example the law in contract that some modifications are enforceable and others aren't) surely you should engage with ways of changing it so it produces the right result. Then you can worry about the case law later, because if the judges want it to happen, the Supreme Court will make it so one way or another, in the interests of 'natural justice' and so forth. 


Open your minds! Engage with the issues! You'll never get a first if you don't.
But don't engage with them if it means disagreeing with me. 
Because I am God. 

Contrary to what one of my lecturers said the other day some lawyers do have poetry in their souls. Thus I recently took it upon myself to make the long journey to Stratford-Upon-Avon to participate in the World Shakespeare Festival. 


The play in question was Twelfth Night, which isn't exactly my favourite Shakespeare, I tend to prefer the tragedies to the comedies, but it was what they were showing so I duly paid for my ticket, grabbed a dinner on the go to avoid extortionate theatre cafe prices, and settled in to a rather poor upper circle seat. 


The first thing that catches your eye when you enter is that there's a swimming pool under the stage. It's really quite odd, since the first thing on stage is a character flopping out of it, having just been shipwrecked. Then of course the play gets going and you have other things to worry about. The set was very elaborate, as you would expect for the RSC, and the actors all of a decent class. The drunks were roudy and silly, the lovers were passionate and threw themselves around the stage like mad people, and the fool was a fool. 


But the character, and indeed the actor, that really stole the show was the manservant, Malvolio, portrayed by Jonathon Slinger who you may remember as the leery chap 'Peter the Pardoner' who steals all of Jeff's clothes in a Knight's Tale. He's still leery, but the costume interpretation of the classic yellow socks and cross garters that Malvolio is tricked into wearing takes on a whole new level with him, as he wears very little else. His performance was excellent, and he received a well deserved ovation at the end of his incredible appearance in said outfit. It takes a lot of courage to go out dressed like that on stage in front of an audience, and to do it every night for the whole run is amazing. 


Other amusements included the traditional theatre ice cream which I cannot resist despite the price, and a quite good souvenir shop where one can purchase a magnet telling you to 'Kill all the lawyers' from Henry VI. 

So the Parliamentary timetable for this session has been announced (woo!) and they're introducing a bill to reform the House of Lords. It won't get through (probably, most likely, on the balance of probabilities), but it's worth looking at anyway. From the Guardian Newspaper:


'The government on Wednesday set out areas of agreement between it and the joint committee: a mainly elected chamber, elected members voted on a system of single transferable vote, staggered elections with one third coming up for renewal at a time, peers to serve 15-year terms, current peers to leave in stages, a reduced number of peers, and powers to expel peers.' 
...
'Ministers are concerned that any statute or memorandum setting out mutual powers will then make the relationship between Commons and Lords justiciable in English courts, so reducing the much prized autonomy of parliament.'


You may have a feeling that I don't like it. 
You'd be right. 
Single transferable vote? Great. Just like the country ought to be and in that move justify never changing the main voting system because Commons and Lords need to be elected on a different basis or there's just no point. 


The other problem I have is that the House of Lords would be elected. Yes, I have a problem with giving Lords a democratic mandate, despite my firmly held believe that not everybody should have a democratic mandate because the proletariat/voters/common people/homies just don't have a clue what they're doing when they vote for the most part. We already have one House elected by people who haven't got a clue what they're voting for, the value in Lords is that it is comprised, at least in part, of experts. If I were in charge (and I should be, let's face it) Lords reform would involve the House of Lords being entirely unelected, nominated experts in various fields, with no more bishops (totally inappropriate to have bishops in politics...or at all) and nobody in there who didn't get in on merit. 

I've been thinking quite hard today on Contract Law but I don't want to post my fruits just yet because the idea needs a bit more ironing out. If it comes out well, it'll be pretty nifty. 


So in the meantime, how about idols? 


I think a lot of people tend to idolise the wrong kind of person in today's culture; people like Paris Hilton that seemingly have no self respect and eat way too little whilst projecting the image that that's the ideal and have achieved nothing with their lives and don't need to. Admittedly that's an extreme example. 


My point is, there are some really incredible people alive today, not to mention all the people that have done something spectacular in the past.


My favourites are quite varied really. I quite like Nelson Mandela although I suspect 'Long Walk to Freedom' was rather heavily edited to paint him in the most positive light. Nevertheless, it's pretty impressive to overturn an oppressive regime like that. Which I suppose means I ought to be fond of the people in the Arab Spring. And I am glad that people have finally stood up against their oppressors in that part of the world and that dictators have been overthrown, but I worry about the consequences. The Muslim Brotherhood gaining influence in Egypt, for example. That's just trading one extreme regime for another, albeit with a religious rather than a selfish justification (allegedly). I suppose we'll just have to wait and see for now, but until then, check out Srdja Popovic and CANVAS: the people that train protesters. 


I really enjoyed reading Aung San Su Kyi's 'Letters from Burma' too, but I think I find it harder to connect with her ideas than with Mandela's because she's just so gentle. Which is great, but I'm not sure I agree that it's the most effective method. At present things seem to be looking up for her at last. 


In terms of slightly less serious idols, Margaret Atwood is a stunningly good author. She writes books from historical fiction to fantasy and dystopia and I particularly like her 'The Penelopiad' because of the feminist, realist angle. 


Thinking about people that have achieved something with their lives makes me incredibly anxious to do something with mine. 

Being a student is, generally speaking, a pretty high stress experience. A lot of students use drinking and partying as a relief, and your author does too, it's true, but I find a cheaper method of relaxation is a bit of good comedy. 


Thus, I was rather pleased when Russell Howard's Good News started up again a couple of weeks ago. I think the talent in his show is the combination of the speed at which he makes the jokes and the fact that he never goes back over the same ground (which would be pretty pointless on a  news show) save for a couple of his own 'meme' type things. It's also great that you can see he enjoys his own jokes; sometimes he has to stop talking just to laugh. Plus he showcases lesser known comedic talent on his 'Extra' show which means you get to see a lot more of British Comedy than just your standard Lee Mack and Dara O'Brien. 


But of course, I am a law student and I think one of my favourite shows of all time is the little known Fox show Boston Legal. Running for just five seasons as a spin-off of another American legal drama, the show stars William Shatner (Cptn James Tiberius Kirk, to most, although a bit chubbier these days) and James Spader (the evil best friend in Pretty in Pink, now also known for the American version of The Office) as a pair of ageing, shameless lawyers in a Boston law firm. The show has some great characters, and the perfect moment in season 2 where William Shatner makes a joke about 'cling-ons' is precious. Definitely worth checking out, and even though it's American it's not too bad for Criminal Law revision. 


Then there's always live comedy. I have to admit, I don't get out much to live shows, and when I do they're usually book signings and occasionally plays (review of RSC's Twelfth Night coming up soon) but there's something quite nice about actually being in the room with your comedian, especially if you're in the front row and have the chance to actually interact with them, assuming you don't get embarrassed too easily.