Letters to a Law Student

Chapter 1
 People should do a law degree because studying law is interesting, important and
educational.
 Law isn’t for everyone.
 Describes law as a fascinating, significant and transformative subject.
 What law is:
o Law as a conversation:
 In law, there is a need to talk.
 Our law makers talk to each other to determine what sort of society we
should live in.
 This conversation is ongoing and intergenerational. Law makers in previous
generation took a particular position on what sort of society we should live
in, that does not mean that the future generation cannot take a different
position, thereby bringing about a change in the law.
 The views of the previous generation law makers do not die.
 Their record lives on and has the potential to influence the views of the
current generation.
 The great law makers in the past, continue to have a voice in the
conversations that go on today amongst our law makers as to what sort of
society should we live in.
 These conversations are conducted between two classes of Law Makers
 Judges: Decide concrete cases – Tell the parties to each case as to
what the law says in that particular case -
 Legislators: Legislators lay down general rules in the form of
statutory provisions:
o To guide them as to how they should behave
o To empower people to act in socially productive ways.
 Both judges and legislators are busy in determining as to what sort
of society we should live in.
 Law that emerges from the way judges decide concrete cases is
known as Common Law.
 Law laid down by legislators is known as Statute Law.
 Ultimate power to decide what sort of society we should live in rests with
Legislators. (Example 1)
 The question of what sort of society we should live in is a large one.
 No on judge can claim monopoly of wisdom on it.
 Wise judge will listen to views of other law makers- both past and
present.
 Some judges want to give effect to their own convictions.
o Concrete Example:
 Belmarsh Case, A v. Secretary of State for Home Department (2004)
 The issue was whether the government was entitled to detain non-nationals
indefinitely whom it suspected of being involved in terrorism. (The people
were detained in Belmarsh prison, hence the name of the case)
 The Rule of Law:
 One view is that we should live in a society, that places strict control
on how government power is exercised, to make sure it is not
exercised arbitrarily.
 Expressed the view that we should be governed by the law and not
the men.
 Expressed in arguments and judgements of Entick v. Carrington
case:
o They had gone into his house, and searched it for papers, in
pursuance of a warrant issued by a secretary of state that
purported to authorities them to make searches to find out
who was publishing ‘very seditious papers intitled The
Monitor or British Freeholder’
o Because of this case, the court realised that any government
power to detain people indefinitely on suspicion of being
involved in terrorist plots is legally suspect as it places too
much power in the hands of the government to act
oppressively and arbitrarily.
 Necessity:
 Other view states that we should live in a society where the
government is empowered to do what is necessary to ensure the
safety and security of the populace.
 Latin tag: salus populi suprema lex est (the safety of the people is
the supreme law)
 This view finds support at the end of Entick v. Carrington.
o Talks about Civil Contingency Act 2004: The govern should
be empowered to act in ways that would ordinarily be
regarded as oppressive and tyrannical in order to secure
public safety and the purports to allow the gov in an
emergency, to make emergency regulation ‘ to make
provision for the purpose of preventing controlling or
mitigating an aspect or effect of emergency’ when there is
an urge to do so.
 This view also underlay the decision of the House of Lords in
Liversidge v. Anderson (1944) holding that
o where someone was detained under wartime regulations
allowing the Home Secretary to order the internment of
someone whom he had ‘reasonable cause to believe of
hostile origin or associations’, the court could not inquire
into whether there was reasonable cause to believe the
detainee was ‘hostile’,
o and the Home Secretary said there was.
 So, because of the above-mentioned case, the ordinary requirement
of the Rule of Law- which suggests that gov powers should be
strictly controlled- should be relaxed where the public safety is at
stake.
  Then, giving the gov power to detain people indefinitely when they
are suspected of involvement in terrorism might not be so
objectionable.
 Democracy:
 The third view, which was imp for the Belmarsh case, is that in our
society, difficult questions of how to balance the need for security
against the need to respect people’s liberties should be decided
through democratic institutions that can fairly reflect the desires of
the majority as to where that balance should be struck.
 This view underlines the doctrine of Parliamentary Sovereignty- the
courts are not allowed to set aside of refuse to set aside or refuse to
give effect to an Act of Parliament.
 This third view had relevance to the outcome of the Belmarsh case
in the way that parliament had legislated to authorise the detention
of the non-nationals whose detention had given rise to the
legislation in Belmarsh. And according to the 1971 Act, the Home
Secretary could keep these non-nationals in detention while
awaiting deportation.
 In creating this power, parliament made it clear that it thought the
need to ensure the security of the British people by detaining in
custody these non-nationals and this outweighed any concern about
depriving such non-nationals of their liberty.
 Discrimination:
 There is a fourth view that we should live in a society where the gov
and other imp institutions are not allowed to discriminate against
people for morally arbitrary reasons.
 It finds expression in Lord Denning’s MR’s great judgment in Nagle v.
Feilden (1966), where the court of appeal held that a horse owner
could sue the jockey club for denying her a licence as a trained
because she was a woman.
o This theme was acquired for Equal Pay act, Sex
Discrimination Act and the Race Relations Act.
 This view has most recently been given expression in the Equality
Act 2010, which brings together many earlier anti-discrimination
provisions.
 The relevance if this view to the Belmarsh case was that only non-
nationals were supposed to be detained while UK citizens could not
be detained.
 A view suggested that the parliament wanted to act in a
discriminatory wat. They thought that a UK citizen would not be put
up with the indefinite detention on the grounds of suspicion but
would be okay with someone non-UK citizen suffering the similar
fate.
 The outcome of the case:
 The house of lords made it very clear that the existence of such
power was repugnant to their vision of what sort of society we
should live in and declared that the power to detain indefinitely
non-nationals who were suspected of involvement in terrorism was
incompatible with the European Convention on Human Rights.
  Although parliament was under no obligation to listen to the House
of Lords, parliament repealed s 23 and replaced it with Prevention
of Terrorism Act 2005, to impose control orders on an individual in
order to prevent or restrict ‘involvement by that individual in
terrorism-related activity.’

Chapter 2
Four Reasons for Studying Law:

 Brain Training:
o Studying law at a university is great at helping you learn how to think carefully,
imaginatively and sensibly.
o When faced with discussion a situation raising some issues of law, their responses
seem to be much more guided by their instincts and emotions, rather than carefully
and imaginatively reasoning their way to a sensible conclusion.
o The author believes that in these benighted times, we need a more than ever people
who can think properly, and he believes that, if children have not acquired that
ability at school, then they definitely will at a law school.
o Example:
 He says that in order to test out whether we can always be said to intend
something we foresee will happen as a result of our action, we have to come
up with a hypothetical example to test this out.
 And other examples (pg. 31-34)
o Law helps you to think straight.
 Rhetoric:
o Law helps you to sharpen your tongue and pen as well.
o Studying law is the closest one can come to getting the course in what the ancient
Greek and Romans called Rhetoric: The art of persuading someone to adopt a
particular point of view by speaking and writing effectively.
o Rhetoric is not taught in schools anymore.
o Studying law at a university changes the way in which one writes, and that is, it helps
in backing one particular view point and helps in changing the way the reader thinks.
o Lawyers follow one immutable rule: Express yourself clearly or die. (Iron rule of
lawyering). If you cannot express yourself clearly then there is no room for you in
law.
o If you cannot express yourself clearly, obscurity will doom to failure all your effort.
o Obscure and unclear judgments have a very short shelf-life. As the same for
statutory provisions.
o The Iron rule of lawyering also applies to legal academics writing about the law. A
legal academic who cannot make themselves clear to his/her peers will have no
future as an academic.
o Solicitors: who represent their clients outside the courts, and Barristers: who
represent their clients inside the court, are also bound by the iron rule.
o Solicitors who do not advice their clients clearly, will lose them pretty quickly.
o Law students are not exempted from this iron rule as well. They are expected to
write essays that make effective arguments in favour of a particular view of what the
law says or what it should say.
 o As the time is short during exams, law students need to learn to say a lot, in very
little time.
o Brevity is always much harder to achieve than loquaciousness.
o But you cannot do well as a law student if you don’t know how to get to the point
quickly and make every word count.
 Politics:
o It helps you form your own views as to what sort of society we should live in and
puts you in a good position to provide an informed contribution to the future
shaping of our society.
o Difference between studying philosophy and law-
 Philosophy: You are looking at a set of thinker’s abstract ideas as to how the
society should work.
 Law: It exists at the cutting edge of shaping society. Law makers have a
special responsibility, that philosophers are not subject to - the ideas for
arranging society that law-makers give effect to have to work in practice.
They have to do more good than harm.
o So, when you study law, you develop a practical sense of what works and what
doesn’t work in ordering society. And this is something which philosophy can’t give
you. Also, many philosophical ideas put into practice have proven to have terrible
consequences.
o Studying law, introduces you to a particular method of effecting social change.
o The common law method was a solution to the problem of lack of omniscience.
o In developing this method, the courts would have to decide on a case to case basis,
as to what the law said. This method allowed the English courts a lot of leeway to
experiment with the law.
o To understand the meaning of one law, they had to look back at the previous cases,
where the law was used and what the law said, and then make some educated
guesses as to what the courts would say on that question.
o And this uncertainty had a huge political impact.
o This was the reason as to why UK did not face any revolution, whereas most of the
countries in the continent did.
o In the twentieth century, it changed.
o Legislation became a much more dominant form of law and this reflected a utopian
turn in political thinking.
o Those entering politics should be exposed to the alternative, more organic and
incremental, approaches to changing society that were once second nature to our
law-makers. But exposure to this alternate approach could be made possible by
studying it in action, in the development of the common law.
 Legal Training:
o Astonishing hypothesis: That studying law at a university is not the best way to
become a practicing lawyer.
o He says that the astonishing hypothesis is not true.
o One has to sell their soul in order to become a lawyer. People think this way because
anyone who has the power to argue convincingly on either side of a case will always
attract suspicion.
o A lawyer’s ability to take either side of a case seems to indicate an unprincipled
indifference to right and wrong.
o We need legal systems for the society to work. We live under a legal system that
sets strict limits on what the State may do to us and to others. Legal system helps us
to trade with each other. It gives people to trade by granting them legally
enforceable rights over such things as their bodies, land, things, and ideas. And, our
legal system allows people to enter into binding contracts with each other.
o Defending evil:
 The work that a lawyer does us morally disreputable.
 Our legal system wont work properly if people are denied access to it’s
benefits by lawyers who stand in judgement on them and refuse to work for
them on the ground that they are not entitled to those benefits or don’t
deserve them.
 The rule of law would be fatally undermined if the mere fact that you
appeared guilty, would be the basis on which, you were declared guilty,
without a proper trial.
 Same with freedom to trade, as people would disapprove of the way in
which you ran your business meant that you could not find adequate
representation.
 For our legal system to work, lawyers would have to back the unpopular and
unpleasant clients and do their best for them.
o Irrelevance:
 The games lawyers play is largely irrelevant to the vast majority of society
and make little or no contribution to ensuring that we don’t slide into living
in a society where everything is permitted.
 If the rule of law is as imp as the author says, then no enterprise could be
more valuable or more urgent or make more contributions to people’s
welfare. And to get involved in this enterprise, one must become a lawyer.
o Corruption:
 It’s not true that lawyers are more likely to end up acting immorally. If it
were, then decent lawyers would be extremely hard to come by. Most
lawyers are not corrupt, but just wish to fulfil their professional
responsibility as best as they can.
 And if this were correct, then no one should become a lawyer, which would
ruin the society. A society without lawyers is one without a future.
 If lawyers were tempted to do the wrong thing, then the proper way is not
to stop becoming lawyers but for us to strengthen the sanction against
lawyers, who do the wrong thing, so as to encourage them to resist
temptation.
o As far as morality is concerned, there is nothing wrong with being a lawyer.