Category: Words and Things

But what about international law – continued.

4th March 2026

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Hello and welcome to The Empty City blog, the new name of which is explained here.

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From time-to-time this law and policy blog touches upon international law.  The last time a post was devoted to it was only in January this year, though that already seems a long time ago.

The argument put forward in that post was that even if international law cannot readily be enforced, it still nonetheless can be recognised.  This means international law, like any body of law, still exists, even if it is being disregarded.

The tree still makes a noise when it falls in the forest.

But.

It is also fair to say that many are sceptical and dismissive about international law, and even some (eminent) lawyers regard it as essentially a fiction.

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One problem about international law is that it can often seem one-sided.

Take for example the inability of many (though not all) European countries to say plainly that the attacks on Iran by Israel and the United States were not in accordance with international law, let alone in breach.

When a European territory (like Greenland) and a European country (Ukraine) are threatened or attacked, then European leaders are ready to invoke international law.

But when it is not a European territory or a European country at stake, there is an awkward silence.

Of course, the United Kingdom government know that the attacks on Iran were illegal – it is the necessary implication of the stated position on the validity of “defensive” attacks.

And, of course, we know why as a matter of realpolitik the United Kingdom government thinks it cannot say this aloud.

No sensible person is under any illusion on either point.

But.

One can also see why elsewhere in the world many do not take the West’s professed attachment to international law seriously.

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Iran’s scattergun retaliations against those not concerned with the American and Israeli attacks are plainly against international law.

And that these retaliations are against international law is said aloud, including by the United Kingdom government.

We thereby have one without the other.

We openly say one thing is against International law, but are closed-mouthed about the other.

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Yet unless international law applies to all nations (the clues are in the words “international” and “law”) then it can hardly be called international.  Or law.

But in something akin to “victor’s justice”, it is a standard we only seem to invoke plainly against some countries and not others.

From the perspective of this liberal blog, international law is a good thing.  In general the more international law is recognised and even enforced the better.

But international law will never get real traction when it is deployed in such a one-sided way.

A thing cannot be both universal and partial.

And so to condemn Iran for breaching international law in its reckless retaliations to attacks, but not the countries making those attacks, means you end up with a position that is neither coherent nor compelling.

Yet for international law to gain purchase in the world, the case for it needs to be coherent and compelling.

Else, like the cynics maintain, it is (or will be seen as) little more than fiction.

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This post will also be cross-posted at The Empty City substack, which is run in parallel with this blog.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Jane Austen as a writer about law

Boxing Day 2025

Some notes on Sense and Sensibility and Pride and Prejudice

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There were a couple of significant Jane Austen anniversaries this year.

 

It was the 250th anniversary of her birth earlier this month, and it was the 30th anniversary of the best adaptation of one of her novels.

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(Of course, many of the costume drama adaptations of her works are good as costume dramas. But the glory for me of her novels is in how she uses the written word and the gaps between those words – what she writes and what she does not write, and how she reveals miscommunications and deploys irony. Turning the stories into visual period feasts seems awkward. You may as well just watch Bridgerton. And, again for me, perhaps only Clueless gets to the essence of a character she created.)

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To begin with a disclosure of bias: I am a Janeite and I regard her as the greatest writer in the English language. You no doubt may disagree, but you should know this as a starting point.

The implication of regarding her as the greatest writer is that she is likely to be a great writer on any topic she covers: from gardens to what we now call stately homes.

But I am a legal commentator, and it is her writing about law that I want to discuss here. For I would like to make a case for her being a great writer about law – to put alongside Franz Kafka and maybe Charles Dickens.

The thing is though you hardly know she is writing about law – she describes highly complex areas of law deftly. You take in the law’s significance and the predicaments in which the law places her characters and how legal relationships drive the plot.

Let us see how she does it in her first two novels, Sense and Sensibility and Pride and Prejudice.

(Note that in the quotes below the emphasis, of course, has been added. For convenience I have taken the texts from my Kindle version of the complete novels.)

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Sense and Sensibility

Here is the famous first paragraph:

The family of Dashwood had long been settled in Sussex. Their estate was large, and their residence was at Norland Park, in the centre of their property, where, for many generations, they had lived in so respectable a manner as to engage the general good opinion of their surrounding acquaintance.

Straight away, like a skilled land law lecturer, she distinguishes between an estate, a residence, and property.

She then explains the significance of an estate.

The late owner of this estate was a single man, who lived to a very advanced age, and who for many years of his life, had a constant companion and housekeeper in his sister. But her death, which happened ten years before his own, produced a great alteration in his home; for to supply her loss, he invited and received into his house the family of his nephew Mr. Henry Dashwood, the legal inheritor of the Norland estate, and the person to whom he intended to bequeath it.

Austen soon moves on to showing how this affects others.

By a former marriage, Mr. Henry Dashwood had one son: by his present lady, three daughters. The son, a steady respectable young man, was amply provided for by the fortune of his mother, which had been large, and half of which devolved on him on his coming of age. By his own marriage, likewise, which happened soon afterwards, he added to his wealth. To him therefore the succession to the Norland estate was not so really important as to his sisters; for their fortune, independent of what might arise to them from their father’s inheriting that property, could be but small.

Now, having set out these basic elements of property law and succession, she turns to the crucial legal development (accompanied with gentle wit).

The old gentleman died: his will was read, and like almost every other will, gave as much disappointment as pleasure.

Austen now does some sophisticated legal world-building, having given readers the fundamental points, mixed with doses of characterisation.

He was neither so unjust, nor so ungrateful, as to leave his estate from his nephew; but he left it to him on such terms as destroyed half the value of the bequest. Mr. Dashwood had wished for it more for the sake of his wife and daughters than for himself or his son; but to his son, and his son’s son, a child of four years old, it was secured, in such a way, as to leave to himself no power of providing for those who were most dear to him, and who most needed a provision by any charge on the estate, or by any sale of its valuable woods. The whole was tied up for the benefit of this child, who, in occasional visits with his father and mother at Norland, had so far gained on the affections of his uncle, by such attractions as are by no means unusual in children of two or three years old; an imperfect articulation, an earnest desire of having his own way, many cunning tricks, and a great deal of noise, as to outweigh all the value of all the attention which, for years, he had received from his niece and her daughters. He meant not to be unkind, however, and, as a mark of his affection for the three girls, he left them a thousand pounds a-piece.

And then we move with speed to the second legal development: the nephew’s death.

Mr. Dashwood’s disappointment was, at first, severe; but his temper was cheerful and sanguine; and he might reasonably hope to live many years, and by living economically, lay by a considerable sum from the produce of an estate already large, and capable of almost immediate improvement. But the fortune, which had been so tardy in coming, was his only one twelvemonth. He survived his uncle no longer; and ten thousand pounds, including the late legacies, was all that remained for his widow and daughters.

In the passages above we see terms like “secured” and “tied up” – but now Austen changes gear so as to emphasise the relative weakness of mere assurances, recommendations, and promises.

His son was sent for as soon as his danger was known, and to him Mr. Dashwood recommended, with all the strength and urgency which illness could command, the interest of his mother-in-law and sisters.

Mr. John Dashwood had not the strong feelings of the rest of the family; but he was affected by a recommendation of such a nature at such a time, and he promised to do every thing in his power to make them comfortable. His father was rendered easy by such an assurance, and Mr. John Dashwood had then leisure to consider how much there might prudently be in his power to do for them.

[…]

When he gave his promise to his father, he meditated within himself to increase the fortunes of his sisters by the present of a thousand pounds a-piece.

[…]

And so by the following chapters we already know the truth of what Mrs. John Dashwood says about this.

“And I must say this: that you owe no particular gratitude to him, nor attention to his wishes; for we very well know that if he could, he would have left almost everything in the world to them.”

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The legal situation of others at the house as mere visitors – with no rights in respect of the residence – is also explained, almost in passing, in the first and second chapters.

Mrs. John Dashwood, without sending any notice of her intention to her mother-in-law, arrived with her child and their attendants. No one could dispute her right to come; the house was her husband’s from the moment of his father’s decease

[…]

Mrs. John Dashwood now installed herself mistress of Norland; and her mother and sisters-in-law were degraded to the condition of visitors.

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By the second chapter Austen is being even more skilful and confident in how she explains the law.

In a conversation between John Dashwood in his wife, we have this exposition dump which – because of the characterisation and framing – seems entirely natural to come from the mouth of Mrs. John Dashwood.

“An annuity is a very serious business; it comes over and over every year, and there is no getting rid of it. You are not aware of what you are doing. I have known a great deal of the trouble of annuities; for my mother was clogged with the payment of three to old superannuated servants by my father’s will, and it is amazing how disagreeable she found it. […]”

In the hands of most other writers such an explanation of annuities would have jarred. But by this point, we think this is exactly what this character would say and that she would also say it in just this way.

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Pride and Prejudice

Unlike Sense and Sensibility, Austen in her second published novel waits a few chapters before she explains the relevant law.

And now she is not even full sentences, just the first clause of this sentence in chapter 7

Mr. Bennet’s property consisted almost entirely in an estate of two thousand a year, which, unfortunately for his daughters, was entailed, in default of heirs male, on a distant relation; and their mother’s fortune, though ample for her situation in life, could but ill supply the deficiency of his. Her father had been an attorney in Meryton, and had left her four thousand pounds.

Even if you read a lot about the law you will rarely, if at all, find a complex legal concept – an entail – explained so succinctly – and in less than a full sentence.

We now know enough to deal with this key passage a few chapters later.

“About a month ago I received this letter; and about a fortnight ago I answered it, for I thought it a case of some delicacy, and requiring early attention. It is from my cousin, Mr. Collins, who, when I am dead, may turn you all out of this house as soon as he pleases.”

“Oh! my dear,” cried his wife, “I cannot bear to hear that mentioned. Pray do not talk of that odious man. I do think it is the hardest thing in the world, that your estate should be entailed away from your own children; and I am sure, if I had been you, I should have tried long ago to do something or other about it.”

Jane and Elizabeth tried to explain to her the nature of an entail. They had often attempted to do it before, but it was a subject on which Mrs. Bennet was beyond the reach of reason, and she continued to rail bitterly against the cruelty of settling an estate away from a family of five daughters, in favour of a man whom nobody cared anything about.

And that last sentence is rather clever and a little naughty – because Mrs. Bennet actually grasps the brutal consequence of the entail for her daughters.

Neither the mother nor the reader need an explanation from Jane and Elizabeth. Austen has already explained it.

Towards the end of the book we have this exchange

“I never can be thankful, Mr. Bennet, for anything about the entail. How anyone could have the conscience to entail away an estate from one’s own daughters, I cannot understand; and all for the sake of Mr. Collins too! Why should he have it more than anybody else?” “I leave it to yourself to determine,” said Mr. Bennet.

And with this Austen also leaves it to her readers to determine the nature of entails and their iniquities.

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Perhaps I will do another post on law the other novels, or perhaps a post on how Austen writes about lawyers – especially in Persuasion. (Maybe I will do this as a treat for paying subscribers.)

But what I wanted to convey here is just how brilliant Austen was as a writer about law. What, say, Dickens shovels on the page, Austen weaves so delicately that you hardly realise what she is doing.

Everyone knows Dickens was a great writer about law – he basically tells you this himself. But few realise that Austen is also a great writer about law – and in my view the better one. Only Kafka – himself a qualified lawyer – can in my view compare.

So a happy 250th birthday to Jane Austen (and happy 30th birthday for Clueless) and I hope this post encourages you to (re-)read her novels.

Clueless aside, they are all so much more satisfying than the film and television adaptations.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

“Words and Things” – a comment on three recent turns-of-phrase by Donald Trump and Elon Musk

26th June 2025

Three recent turns-of-phrase are perhaps worth a comment before they are forgotten.

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The first is from Elon Musk, about the “big beautiful” tax bill before Congress:

The phrase which caught the eye was “disgusting abomination”.

You see, abominations are inherently disgusting.

Either the bill is “disgusting” or it is an “abomination”, but there is no need to say both.

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The second is also from Elon Musk:

The key phrase here is “entire corpus of”.

Either “entirety of” or “corpus of” would have done, but again there is no need to say both.

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The third is from Donald Trump:

“Iran’s key nuclear enrichment facilities have been completely and totally obliterated.”

Here saying “obliterated” would have been enough.

Saying “completely” – though intended to intensify only weakened the impact of “obliterated”.

Adding “totally” as a further intensifier weakened it yet further.

There was no need to say all three words.

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All of these examples show a lack of attention to what words mean.

Each example is by itself unexceptional, almost trivial. We all make mistakes, etc – and this blog is not perfect, etc.

But taken together, with scores of other similar examples from Trump, Musk and other senior figures in the United States administration, it shows a casual relationship between words and the things those words describe.

Words are just for effect.

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Trump emphasising “completely and totally” indeed suggested a lack of confidence that the facilities had indeed been “obliterated”.

A lack of confidence which accorded with later news reports:

Trump did not take this correction well and so, despite his ‘free speech’ postures, he called for the journalist to be sacked:

(Note the “like a dog”.)

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One purpose of this blog is to send postcards from the here-and-now, so that there is documentation of how things seemed at the time.

And at this time, many politicians use words – like a real-life version of Artificial Intelligence slop – with little or no correspondence to meaning.

Perhaps politicians have always done this – and no doubt one or two will want to reply to this post saying so.

But it has now got to the stage where one can instantly dismiss what is being said because the politician is saying too much.

Had Trump said the facilities had been obliterated, it may have perhaps seemed credible.

But the addition of both intensifiers immediately discredited the proposition.

And so any useful meaning was, well, obliterated.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Spiteful governments and simple contract law, a weak threatening letter, and a warning of a regulatory battle ahead

13th January 2025

Some things from last week you may have missed.

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The weekly constitutional

Last week I expected my blogging to centre around a post I was preparing for Prospect, where my regular contribution is to branded as a ‘weekly constitutional’.

This pleasing badge implies a weekly meander – but it will be one based on a recent (or non-recent) published case report. The aim is to use that judgment or other decision to show how law and action work – and do not work – in practice.

The first ‘weekly constitutional’ was about a significant United Kingdom Supreme Court decision that was handed down in November but which got almost no press attention (the main honourable exception was in the estimable Byline Times).

In the unanimous decision the Supreme Court justices undid a grossly spiteful attack by the then coalition government on public sector trades unions not by resorting to elaborate employment law provisions, but by applying a contract law rule so simple it is the stuff of the first weeks of any law degree.

I liked doing that post – please read it here – and I hope you will follow the ‘weekly constitutional’ post. I will post here and alert you to them, perhaps expanding on certain points.

But that post got rather drowned by the attention received by two other things that I wrote last week.

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‘Lettuce before Action’

I so wish I had thought of the above line, but it was coined by the peerless Paul Magrath, whose weekly law email is a must-read – you can subscribe here.

This is about, of course, the antics of a former Prime Minister – and indeed a former Lord High Chancellor – in sending a legal letter to the current Prime Minister.

A letter so weak it may well be the weakest threatening letter ever sent by a United Kingdom law firm.

The ‘close reading’ post I did – here – was done very quickly and promptly, and indeed so promptly that I even had to set out why as a matter of copyright and confidentiality I was entitled to publish the letter so as to comment on it.

Since the publication, the former Prime Minister has been widely ridiculed for this misfired missive – but I think there may be something more worth saying about the letter – and so I may do a post with further reflections.

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Back in the salmon pink

Last week I was also invited to write something about about social media regulation for the Financial Times.

It is always lovely to write for what – in my biased but honest opinion – is the best newspaper, though it is always terrifyingly daunting to be published alongside proper commentators.

(Lucy Kellaway is my all-time favourite columnist in any newspaper anywhere.)

So I wrote one thing, about the inherent difficulties about regulating social media – some of which will be familiar to long-term readers here.

And is often the case, new ideas come out once you actually start something, and so I wrote a second thing about what I say as the rational drivers behind what Meta announced last week. This was based on actually listening carefully to what Mark Zuckerberg has said in his broadcast – and then reading that prepared statement even more carefully (which led to the all-important satisfying “Aha!” moment).

The two pieces were then banged into one longer piece with an overall, hopefully coherent structure.

And the resulting ‘essay’ was published in the print edition and online on Saturday.

For reasons of topicality, more than the quality of the writing, the piece became very popular.

The Bluesky stats for the article matched my Brexit posts on Twitter at the height of Brexit when I had five times as many followers.

The piece was even briefly one of the top five read FT.com pieces globally.

The sensation of this happening is not altogether pleasant.

But perhaps the one merit of the piece was that it offered an explanation for something which seemed otherwise hard to explain in rational terms.

Essentially the argument offered by the piece was:

(a) Meta has an interest in switching to a more confrontational approach with irksome foreign regulators, especially in the European Union,

(b) Meta now has an opportunity to do this because of the reelection of Donald Trump to the United States presidency,

but (c) this does not show strength but weakness, for in those foreign jurisdictions, the platforms know the respective state has the ultimate power of legal recognition.

And so this is why Meta now needs a strategic ally in the US government – and everything else follows from that.

This seemed obvious from Zuckerberg’s statement – but because it was slipped in a point number six after five rather attention-grabbing other points, but did not get the attention it should have had.

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Litigation and regulatory strategies are fascinating – in particular, where the surface theatrics of impulsiveness, hypocrisy and recklessness misdirect onlookers into thinking the underlying commercial (or political) objectives are similarly irrational.

Even Liz Truss’s letter makes sense – but solely from a political-media perspective, and not any legal perspective.

Perhaps I should write that further piece on that letter, if only to use that ‘Lettuce before Action’ line as a title.

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Commissioner Breton writes a letter: a post in praise of the one-page formal document

Zelensky and persuasion

8th February 2023

There are different kinds of political – and legal – advocacy.

One form of advocacy is to make as positive a case as you can for something you think your audience will want you to do anyway.

Here you identify the values and beliefs (and prejudices) of your audience, and tell them what they want to hear.

Another form of advocacy makes no pretence at being positive: you warn of consequences, and thereby manipulate or even coerce your audience into going along with what you want them to do.

But there is another form of advocacy – perhaps the most difficult.

And that is to make your audience feel intellectually – or emotionally – uncomfortable about deciding against you.

This cannot be done by mere warnings, or threats, or by promises and smiles.

It can only be done by making a better case than the one which – but for the advocacy – the audience would normally go for.

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Today we saw in Westminster Hall an extraordinary exercise in advocacy by the Ukrainian President Volodymyr Zelensky.

The concrete policy goal of the advocacy was simple: the supply of military aircraft.

He needed to shift the policy of the government of the United Kingdom, which is currently not minded to supply military aircraft.

I am no specialist in military strategy – and nor are you likely to be – and so I have no idea whether, in the round such supply would be a wise or a foolish or even a feasible thing.

But the one outcome of today’s speech is that unless there is a compelling reason otherwise, it would be uncomfortable for any politician to disagree with Zelensky’s request.

The mark of a great advocate is not so much to get a person to agree, but to make it harder for a person to disagree.

And it seems to have worked: the government position appears to have shifted.

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The gift of the signed pilot helmet was also an example of how useful physical artefacts can be in persuasion – especially as it was first presented as a gift, with the gradual reveal of the handwritten message.

This blog has previously told the story of how senior people at the British Library once persuaded Margaret Thatcher of the urgent need for the move of the library to a new purpose-built building.

They did not rely on reports and tables and words.

They just put in front of her a selection of books that were falling apart, including a novel by one of her favourite authors.

And they told her that unless they got the requested investment, that would be what the national collection of books would all end up like.

She stared at the dilapidated books.

They got the investment.

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Words, words, words can only get you so far.

And Zelensky realised that there is more to persuasion than mere words, or promises, or threats.

Rarely will we see such an outstanding piece of oral and physical rhetoric at Westminster, or indeed elsewhere.

It was a Westminster speech for the ages.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

 

Beware of judges employing rhetoric: a note on Lord Denning and his “appalling vista”

3rd February 2023

Yesterday on this blog there was a quick post on the Tate Modern privacy/nuisance case – and I am delighted that I have now been commissioned by Prospect magazine to do an online in-depth analysis of this fascinating case about the clash of public spaces and private rights.

The point of the quick post yesterday was not to offer any considered view on the Tate Modern case (on which I actually have not formed a view) but to point to a conspicuous absence in the judgment.

It was odd that the famous speech of the former Master of the Rolls Lord Denning in the 1977 nuisance case of Miller v Jackson was not mentioned, and nor indeed was Denning himself, given this is one of the most famous speeches in the history of English law.

That speech begins as follows (and I have broken out the sentences):

“In summertime village cricket is the delight of everyone. 

“Nearly every village has its own cricket field where the young men play and the old men watch. 

“In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. 

“They tend it well. 

“The wicket area is well rolled and mown. 

“The outfield is kept short. 

“It has a good club-house for the players and seats for the onlookers. 

“The village team play there on Saturdays and Sundays.

“They belong to a league, competing with the neighbouring villages. 

“On other evenings after work they practice while the light lasts. 

“Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore.

“He has issued an injunction to stop them. 

“He has done it at the instance of a newcomer who is no lover of cricket. 

“This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. 

“The animals did not mind the cricket.

“But now this adjoining field has been turned into a housing estate. 

“The newcomer bought one of the houses on the edge of the cricket ground. 

“No doubt the open space was a selling point. 

“Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house. 

“His wife has got so upset about it that they always go out at weekends. 

“They do not go into the garden when cricket is being played. 

“They say that this is intolerable. 

“So they asked the Judge to stop the cricket being played. 

“And the Judge, I am sorry to say, feels that the cricket must be stopped: with the consequences, I suppose, that the Lintz cricket-club will disappear. 

“The cricket ground will be turned to some other use.

“I expect for more houses or a factory. 

“The young men will turn to other things instead of cricket.

“The whole village will be much the poorer. 

“And all this because of a newcomer who has just bought a house there next to the cricket ground.”

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The leading legal commentator Joshua Rozenberg agreed about this conspicuous absence on Twitter:

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In the post yesterday I mentioned that I was not a fan of Lord Denning as an appeal judge, though I conceded that one cannot deny his quality as a wordsmith.

(Please note that this adverse view is not about Denning as a person, about whom I have no idea, but about the content and style of his judgments.)

One day I may write a fuller account of this adverse view, but in essence I hold this view for three reasons.

First, it seems to me that Denning’s judgments are often triumphs of form – indeed of rhetoric – over legal substance.

(Indeed, when I once read many of Denning’s judgments in succession, it felt as if he was even sometimes the prisoner, and not the master, of his style of giving judgments.)

Second, his freestyle use of law and equity created a great deal of needless uncertainty in areas of law where certainty is important, especially at appellate level.

(And the usual argument that this was for achieving justice in individual cases really goes to his deftness as a legal rhetorician: for it is difficult when reading his judgments not to sympathise with the party Denning wanted to win – “of course” they should win.)

And third, it is because his rhetorically impressive judgments often cloaked a very illiberal approach to the law and the rights of individuals.

For example there is his notorious 1980 speech in the civil claim brought by the then-imprisoned (and later rightly exonerated) Birmingham Six.

Here I will quote from that speech more fully than usual, so that you can see hos slow rhetorical build-up (and I have again broken out the sentences):

“In this case at the “trial within a trial” there was an issue whether the police had been guilty of violence or threats towards the six men so that their confessions were not made voluntarily.

“The judge on the issue made a clear finding against the six men after a trial of eight days in which the six men had full and fair opportunity of being heard – and were in fact heard – and were represented by leading counsel.

“At the trial the same evidence about violence and threats was given all over again before the jury.

“If the jury had acquitted the six men, it would not be fair or just to hold that the finding of Bridge J. was binding on the six men in subsequent proceedings.

“But seeing that the jury convicted the six men, it is reasonable to suppose that they took the same view as Bridge J.

“In any case the issues are such that it would not be fair or just to allow the decision to be reopened by the six men.

“Just consider the course of events if this action were to proceed to trial. It will not be tried for 18 months or two years.

“It will take weeks and weeks.

“The evidence about violence and threats will be given all over again, but this time six or seven years after the event, instead of one year.

“If the six men fail, it will mean that much time and money and worry will have been expended by many people for no good purpose.

“If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence: and that the convictions were erroneous.

“That would mean that the Home Secretary would have either to recommend they be pardoned or he would have to remit the case to the Court of Appeal under section 17 of the Criminal Appeal Act 1968 .

“This is such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further.

“They should be struck out either on the ground that the six men are estopped from challenging the decision of Bridge J. or alternatively that it is an abuse of the process of the court.

“Whichever it is, the actions should be stopped.”

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Denning’s exercise in legal rhetoric is strikingly similar in style to his famous introduction to the 1977 case of Miller v Jackson.

But instead of the readers clapping and cheering, as most will do with the Miller v Jackson introduction, the only decent response to this Birmingham Six passage is disgust.

And this is why one should be wary of rhetoric in legal judgments – and indeed it is why we should be at our most vigilant when we find ourselves nodding-along with a rousing passage in any judgment – whether by Lord Denning or by any other judge.

Of course: judgments should be plain and succinct and comprehensible to non-lawyers.

But judges should leave the tools of persuasion to the advocates.

For if the judge has got the law right and the facts right, there is no need for the judge to also employ rhetorical devices so as to get you to nod-along with what they have decided.

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Artificial Intelligence and how it will affect commercial lawyering (and legal blogging)

17th January 2023

Here is a thought:

Or, to perhaps put it another way: could Artificial Intelligence replicate, or even replace, the work of your normal contracts lawyer?

As someone who has spent over twenty years as a commercial lawyer (constitutional law is my interest, and contracts law my drudgery) I would say the answer is yes, and no, and but.

And as a coda, I will aver that those of us who write and comment on legal blogs may face a problem too.

Yes

The yes is a recognition that a certain amount of contracts law in practice is ploddery.

You have a standard form contract, and you read every clause, and you put all the clauses together.

Many standard clauses are what is called boilerplate – their effect, and often their very wording, are identical from one contract to another.

And even clauses which can vary from one standard from to another – payment arrangements, service levels, and key allocations of risk – do not vary very much.

In larger law firms, the task of reviewing, and even drafting, such contracts is given to junior lawyers, even trainees.

Many non-legally qualified contracts managers and procurement officers are better than many commercial lawyers in dealing with straightforward commercial contracts.

And so just as a text comparison program can identify differences between contracts better than almost any human, then a computer which has a bank of hundreds, if not thousands, of standard contracts would be able to identify standard and deviant clauses.

Such a computer may even be able to propose amendments to the deviant clauses so as to place the contract onto a more standard basis.

So, yes, some straightforward contracts reviews could be done by Artificial Intelligence.

No

Standard form contracts are subject to special legal rules in case law and statute, especially when they are for business-to-consumer transactions, and so a store of contracts would not enough: external legal expertise can be necessary.

And being able to advise a client on whether a standard form contract will be in their commercial interests or not is not something Artificial Intelligence is likely to be able to do soon.

That is because assessing commercial risk in a particular situation is not a form of abstract calculus, for it requires an understanding of industry, business, economic, social and human factors.

And, of course, not all commercial contracts are on standard forms.

Certain transactions require bespoke contracts, dealing with the allocations of risk of a range of things that could go wrong.

In IT and media contracts, for example, there often needs to be an understanding of technological risks so that the legal risk allocations match and mirror what problems can happen in practice.

A well-drafted and hard-negotiated bespoke commercial contract is as much a work of cooperation, conflict and collective endeavour as you will find anywhere else in human activity.

But

There is a problem.

The good lawyers who can advise on standard and bespoke contracts can do so because of their apprenticeship in dealing with straightforward clauses in everyday contracts.

You do not have child prodigies in practical law: a practice takes, well, a lot of practice.

One reason for this is that contracts are not linear documents but complex instruments: each clause can and should relate to other clauses.

And the only way to master complex instruments is to understand how the elements of that instruments all fit (or do not fit) together in given practical situations.

(I have said before that legal drafting is akin to coding in making sure lines all work together.)

This means that if Artificial Intelligence replicates and then replaces the work of junior contract lawyers it is difficult to see how senior contract lawyers will gain their necessary experience.

Coda

Perhaps a better route for Artificial Intelligence would be to replicate and then replace the work of legal bloggers and their commenters.

Perhaps the blogpost above was written by Artificial Intelligence, and perhaps also some of the comments below will be too.

If so, then Artificial Intelligence can merrily create blogposts and comments, rendering us all redundant.

Brace brace.

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Law vs Lore

8th December 2022

When I decided to start a Substack I also had to decide what to call it.

I could not call it “law and policy” as that is the name of this blog.

Dear old folkloric wizard “Jack of Kent” is safely dead and buried.

And so I settled on “law and lore” as that put together two things which not only interest me but also are more closely connected than many people realise.

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Let me explain.

Many of those reading this blog will not be lawyers and so have had little need to look up the raw black-letter texts of the law – in statutes, case reports and elsewhere.

Even those of you with the unfortunate affliction of being a lawyer, will not always have read the black-letter texts of every law about which you will have a view or an understanding.

And in society generally, a great deal of the law in practice is what people believe it to be – or should be.

“You cannot do that.”

“I cannot do that.”

“That is not allowed.”

“I have my rights.”

“Technically you are not allowed to do this.”

“Technically if you do this you don’t break a law.”

And so on.

Entire areas of law are, in practice, mini belief systems where people are confident about what the law is, free from ever looking it up: data protection, health and safety, consumer rights, Magna Carta.

And on the political plane, belief is (or was) a great deal of our uncodified convention: a general sense of balance and self-restraint.

This all fascinates me.

I have often wondered what an alien looking down would work out about our laws and legal system just by watching what people do and do not do.

Would such a Martian’s account correspond to what our legal texts say about the law?

And so my view is that to understand law in practice, one has to have an understanding of lore, which I see is helpfully defined online as “a body of traditions and knowledge on a subject or held by a particular group, typically passed from person to person by word of mouth”.

This is not to say that it is consciously invented: those with strong opinions about the law usually believe that they are actually correct.

Sometimes there is a close relationship between law and lore – in, for example, mercantile law, the practices of business folk often give rise to enforceable legal obligations.

And sometimes there are stark discrepancies: for example, data protection in practice often has no relationship with data protection as set out in law.

I would like to explore this distinction between law and lore more in future posts in particular areas.

Let me know if you have any ideas for subjects of such posts.

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A close reading of Boris Johnson’s statement saying he is not standing for leadership

 

24th October 2022

Yesterday the former Prime Minister Boris Johnson provided a statement about not standing for the leadership of the United Kingdom’s governing Conservative Party.

I joked on Twitter that a close of reading of this statement was a joy – and I was then commanded by the highest of all temporal and spiritual authorities to do a post setting out why.

And so here it is.

*

A close reading of any text has to have regard to the (seeming) intentions of the author, the content of the text itself, and the relevant context(s).

Here we have a resignation but not a formal resignation – indeed, there was not even a prior application, formal or informal, to which this is a sequel.

It is not any form of a required text – it was instead volunteered by its author.

This means that more regard has to be made to (seeming) intention and context than otherwise, as there are no formal, required “buttons” to “press” with its content.

*

Now let us begin.

“In the last few days I have been overwhelmed by the number of people who suggested that I should once again contest the Conservative Party leadership, both among the public and among friends and colleagues in Parliament.”

See how the “I”s are buried in this sentence, so as to indicate that it is not really about him.

The references to “the number of people” and to “the public and among friends and colleagues in Parliament” is pretty much an exercise in duplication.

The author could have said more simply “In the last few days I have been overwhelmed by [encouragement] that I should once again contest the Conservative Party leadership, both among the public and among friends and colleagues in Parliament.”

But the author needs to emphasise the quantity of people, and so the double-egging of “the number of people”.

The “overwhelmed” also indicates that he is protesting too much – and, indeed, the context implies that he was instead underwhelmed.

He did not get enough support.

*

“I have been attracted because I led our party into a massive election victory less than three years ago – and I believe I am therefore uniquely placed to avert a general election now.”

The author was once a winner, and it is important that this is emphasised and that the reader is reminded.

There was not just a “election victory” but a “massive” one.

And it was not now some time ago, back in 2019, but only “less than three years ago”.

But it is the last part which is most interesting, where the author puts forward a false proposition about an imminent general election.

There is no imminent general election – and there cannot be one without the governing party wanting one.

So this is misleading.

The author then protests that he is not only well placed but “uniquely placed” to “avert” this non-existent imminent general election.

He presents himself as The One – “uniquely”.

And he uses “therefore” when he means “thereby” – a neat and deft trick to make the proposition seem stronger than one bare assertion leading from another.

*

“A general election would be a further disastrous distraction just when the Government must focus on the economic pressures faced by families across the country.”

The “further disastrous distraction” means, of course, that there was a previous “disastrous distraction” – and here he can only mean his own loss of office.

The necessary implication of seeing his own loss of office as a “disastrous distraction” is that he is not contrite about how he lost the premiership.

*

“I believe I am well placed to deliver a Conservative victory in 2024 – and tonight I can confirm that I have cleared the very high hurdle of 102 nominations, including a proposer and a seconder, and I could put my nomination in tomorrow.”

Ah, the “well placed” line – a feature of a million job application letters, where the applicant cannot think of a better way of boasting that they are fit for a vacancy.

This follows the “uniquely placed” just two sentences ago, and it is saying the pretty much same thing: his electoral prowess.

Also note the passing mention of 2024, as for when this election should be.

Then we have “tonight I can confirm that I have cleared the very high hurdle of 102 nominations”.

Not just a hurdle.

And not just a high hurdle.

But a “very high hurdle”.

And he has “cleared” this hurdle.

This is energetic imagery.

The superfluous “I can confirm” – like the “therefore” in a previous sentence – is intended to make a proposition seem stronger.

Of course, in context, this is an unimpressive proposition, as his supporters have claimed for days that he had over a hundred nominations.

He is now reduced to claiming that he has managed 102 (or perhaps more).

The detail of “including a proposer and a seconder” gives an impression of desperation.

The crescendo of this sentence is “I could put my nomination in tomorrow” is an attempt to convince the reader and perhaps also the author.

Of course he could.

*

“There is a very good chance that I would be successful in the election with Conservative Party members – and that I could indeed be back in Downing Street on Friday.”

Not just a chance.

And not just a good chance.

But “a very good chance”.

*

“But in the course of the last days I have sadly come to the conclusion that this would simply not be the right thing to do. You can’t govern effectively unless you have a united party in parliament.”

But.

Having bigged himself up as the one who is “uniquely placed” to avert an imminent general election (which will presumably now have to take place) and “well placed” to give his party a general election victory in 2024, he now says it is not actually in his party’s interests for him to avert this looming defeat and claim this brilliant victory.

It would “simply not be the right thing to do”.

Why?

Because, he says, “You can’t govern effectively unless you have a united party in parliament.”

Seemingly gone is the “overwhelming” support he has in the party from the start of the statement, and gone also is the support that enabled him to “clear” a “very high hurdle”.

The support, in fact, is not “overwhelming”.

His candidature would split the party so much that he would not be able to “govern effectively” – even though he contends he is “well placed” to govern so effectively as to achieve a general election victory in 2024.

None of this adds up.

*

“And though I have reached out to both Rishi (Sunak) and Penny (Mordaunt) – because I hoped that we could come together in the national interest – we have sadly not been able to work out a way of doing this.”

With “reached out” we switch in style from the hapless job application to irksome public relations verbiage.

The context here is that the other two contenders rebuffed him.

The framing of this sentence is to blame the other two contenders for rejecting his approach: they are the ones who are not thereby acting in the “national interest”.

He is the statesmanlike goodie, and they have let him and you down.

And you are to be “sad” at this outcome.

*

“Therefore I am afraid the best thing is that I do not allow my nomination to go forward and commit my support to whoever succeeds.”

Hello, here is “therefore” again, seeking to add gravity.

Just sentences ago he had “come to the conclusion that [becoming leader again this week] would simply not be the right thing to do”, and now – separately – he is saying he has concluded because of another reason that “the best thing is that I do not allow my nomination to go forward”.

Given he had already decided this before “reaching out” it makes no sense for him to say that the rebuff is the reason he did not “allow” his nomination to go forward.

The author wants us to believe he is both a wise statesman and the unfairly scorned reject.

He wants both the credit for not standing and for others to be blamed for him not standing.

He wants the king-making cake, and to eat it.

*

“I believe I have much to offer but I am afraid that this is simply not the right time.”

Well.

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