Defending the Best: A glimpse of life at the Bar (Published in the Obiter Dicta Law Journal)

For online print version visit the Warwick Law Society site here.

‘It was so cold last week that I saw several lawyers with their hands in their own pockets’. Leaving financial exploitation aside, there is a heteroclite point worth making about lawyers, particularly barristers, and their hands. Traditionally, Barristers did not shake hands with one another. Generally, the purpose of shaking hands was to demonstrate that people had no concealed weapons. It was and is unthinkable to even consider that a fellow barrister might greet another with a weapon, and offensive to suggest that such precautions were necessary as between colleagues at the Bar. Indeed, Barristers were expected to know one another, thus introduction or shaking of hands was supposed to be unnecessary. This presupposed intimacy and courtesy is reflected, for instance, in the exclusive manner they refer to each other in court i.e. ‘My Learned Friend’.

Assumptions

The Bar is perceived, perhaps quite rightly, as a privileged coterie – a clique. They’ve been irresistibly plucked by miniscule tweezers from a narrow social pool. They are discrete and high shoulder braggarts – sometimes exhibiting frigid pride - with enviable intellect and an ability to articulate solutions to the most intricate and perplexed legal problems. Is entry to the bar biased towards the affluent? Some think of it as a patriarchal exclusive club, dominated by public school and Oxbridge students – a place where women have no say, or worse, no part to play. It is arguable that it is also a monochromatic representation of our very colourful contemporary society. All this leads most of us to paint a most tainted, and as I will argue, partially distorted, picture of what life at the Bar is really like.

I have therefore embarked into a rather ambitious task and dedicated my already scarce spare time at looking at the mechanics of life at the Bar. This machine of advocacy, motioned by intellectuality, has come under my magnifying lens. I have interviewed, to your delight, a group of judges and barristers to ascertain their experiences of the profession.

The distinguished panel includes:

Lord Hoffmann (Lord of Appeal in Ordinary)

Geoffrey Vos QC (Chairman of the Bar)

Cherie Booth QC (founding member of Matrix Chambers and the Prime Minister’s wife)

James Wood QC (Doughty Street Chambers – Warwick Alumni)

Rosalind Phelps (Fountain Court Chambers)

Emma Jackson (3 Stone Buildings – Warwick Alumni)

The Bar is changing: but is it getting better?

The Bar had been organised as an association of the members of the Inns of Court by the 14^th century. As Baker notes:

“The western suburbs of London were filled, by the 14^th century, with the town houses or inns (hospicia) of the statesmen, civil servants and lawyers whose work brought them to London when parliament and the courts were in session…by the middle of the 14^th century some of the inns had taken over the responsibility for educating lawyers.”

The law students of that time followed an educational regime, with oral pleadings exercises (moots) and other exercises based on writs. The 15^th century inns of court and chancery together formed a law school not much smaller in size than Cambridge University – it was called ‘the Third University of England’. After his elementary grounding in an inn of chancery, a student who aspired to the Bar would seek admission to one of the Inns of Court as a student. He would spend seven years (our 3 year law degree is not so bad afterall) or so attending courts, performing in more advanced moots, attending lectures, and keeping commons with his fellows. After this, he might expect to be called to the Bar.

As you may have noticed, nowadays training is very different. Indeed, the legal profession has revolutionarily changed in the 20^th century, a change likely to be attributed to the growth of the legal market and globalization. Thus, there was little point in turning to Lord Hoffmann, as I did, to seek advice about joining the Bar. When sought, he replied,

“…my experience at the Bar lies too far in the past to be of much value to anyone thinking of joining today”.

Probably asking Lord Hoffmann about it wasn’t too good an idea. Indeed, his experience would not be of much use to an aspiring barrister nowadays: it would be tantamount to using an obsolete precedent in modern litigation. This is because the Bar has changed. “The Bar is getting better”, says Geoffrey Vos QC, present Chairman of the Bar of England & Wales. But surely the Bar has always been a great profession, and in my view, one of the greatest. Accordingly, what Mr Vos QC meant was that, the Bar is getting better at providing access so as to make it more diverse.

Diversity: but does it really matter?

Yes it does. There are approximately 15,000 barristers in England and Wales. Upon a brief examination of the statistics provided by the Bar Council, I was surprised that 32% of practising barristers were female. But the figure does not reflect contemporary society. Indeed, 48.9% of students called to the Bar in 2005 were female. The evidence therefore suggests that the number is increasing and will eventually outweigh its male counterpart. I asked Cherie Booth QC about female representation at the Bar. Contrast the statistics aforementioned with the position at the time she joined the profession. She recalled,

‘I have no doubt that in 1976 when I was called being female was an undoubted disadvantage. For a start there were very few practicing barristers who were women. 1976 was the first year that the number of women called to the Bar got into double figures from 9% the year before to 16%. Many chambers still had a one female only policy. I can still remember one of my first cases outside of London when I went into the all male robing room only to find the whole room fall silent as I walked in which was pretty off putting for a 22 year old beginner. Luckily, things are very different today with women accounting for nearly 40% of the people called to the Bar far more women silks and positive encouragement to women to apply for judicial appointments.’ Diversity is good. It recycles the soil to allow more fragrant flowers to flourish. But many people assume – with reason – that women are still being discriminated against at the Bar. Once again, I turned to Cherie Booth QC, and asked her what particular advice she would give female students aspiring to join the profession. Eloquently, she replied ‘the same as I would give the male students. You need to have a passion for a career at the Bar and you need to get as good a
degree as possible and demonstrate a practical commitment to advocacy whether by way of drama, public speaking or mooting.’

Due to the scope of this article I have decided not to inquire into the ethnic diversity of the Bar. This is nonetheless a very important matter which calls for consideration and reform.

Exclusivity

There are now more female law students in the UK than their male counterparts. This leads me to tickle the idea that in the next 50 years what is now the testosterone-packed-House of Lords (this will eventually change to the ‘Supreme Court of the United Kingdom’ when the Constitutional Reform Act 2005 takes effect) will be equally (if not disproportionately) populated by female Law Lords. However, reforming the Bar isn’t just about increasing diversity and equal opportunities. The Bar’s recruitment process has been criticised for being secretive, exclusive and based on family contacts. Is this true? Or more importantly, is this still the case today? I probed Cherie Booth QC about this by asking her, ‘is the Bar an exclusive club?’

‘No I think I am a good example of a girl who was a first generation university entrant, with no private income or legal connections who still made it at the Bar. Nevertheless I am concerned that the costs of qualifying for the Bar, together with the uncertainty of a placement, is deterring some good candidates from applying, which is why I welcome the work of the Sutton Trust and the Bar Council to encourage diversity at the Bar.’

In similar fashion, Rosalind Phelps opined:

“No. It is to some extent "exclusive" in the sense that many more people want to do the job than are able to. But it is certainly not a "club" if by that it is meant that the people in the profession only want to recruit people in their own image, or are inward looking. These days the Bar recruits on merit only: it would not survive if it did otherwise.

It is arguable that the Bar is relatively more transparent. Statistical data helps us understand the mechanics of these changes. The Bar is, however, dominated by the Oxbridge produce. This leads me to inquire: Is there a silent policy at the Bar that suggests preferential treatment is given to Oxbridge graduates? Rosalind Phelps, despite being an Oxbridge graduate herself, answered this in the negative. Therefore, there is arguably a recognition that as long as you’re good, you’ll make it, regardless of where you graduate from.

It’s always reassuring to know that Warwick graduates have made it to the Bar, and have made it quite far. James Wood QC graduated from Warwick in the 1970’s and now practices at Doughty Street Chambers, one of the leading Criminal and Human Rights sets in the country. He believes the Bar is no longer an exclusive club.

“it is an open profession, where selection is on merit, and connections will not help you get in. But also, yes, in the sense that we are a referral profession, only getting our work from solicitors, and therefore without access to the high street and to the public. The concept of an "exclusive club" contains much of what I disliked of the Bar. The pomposity, and self opinionated character of (now very few) practitioners, with which the Bar has traditionally been associated, is now (thankfully) very much a thing of the past”

Education & Pupillage

After you graduate with a degree in Law (or CPE), you must join an Inn, undertake the Bar Vocational Course (BVC) and secure pupillage. However, it’s not that simple. I can think of three crucial weapons you will need under your belt before you start contemplating joining the profession: intelligence, determination, and…funding.

Do you really need a First? What happens after University? How difficult is it to get pupillage?

Emma Jackson, barrister at 3 Stone Buildings and a Warwick graduate, points out that:

“It is definitely very competitive and if you want to go into areas such as commercial, chancery, tax and the like a first class degree is a definite advantage. This is particularly because as non-Oxbridge (or Bristol) graduates you will be part of a minority at the Bar that has to go a little further in order to prove yourself. That said, Warwick is certainly not unheard of amongst chambers, and I, and friends of mine, found that Warwick often formed a talking point in interviews, as interviewers are interested to hear about the sociological approach that Warwick takes to teaching law. The Bar is increasingly recognising the need to diversify so as to better reflect society, and taking applicants from a range of universities is part of this process.

It goes without saying, but getting involved in things such as mooting, debating etc and doing some mini-pupillages also helps with applications and interviews. I also attended a university dinner at Lincoln’s Inn, whilst at Warwick, which was a very useful way of meeting people and getting a better idea of what life at the Bar was really like.

When it comes to choosing chambers to apply to, do your research thoroughly (and do a good range of mini-pupillages). Although it can be difficult, try to focus your application on a particular area or areas of law so that you come across as committed and genuinely interested in that particular chambers.

If you have the time and inclination it can also be helpful to do some work experience at solicitors as this will help you to justify why you have opted for the Bar instead of becoming a solicitor.”

James Wood QC, a more senior practitioner, advised:

“Ensure you get a minimum of a 2:1. Do other things (jobs, voluntary work, work placements etc), which might cause you to stand out from the crowd. It is an advantage at the Bar to have some other experience of the outside world. Think carefully about whether you really want to go to the Bar, or whether you would be better off as a solicitor. It is very tough getting in nowadays. My normal advice to people is to become a solicitor, you have the idea of a career at the Bar coursing through your veins. Building a career at the Bar is very difficult now. Most junior advocacy is done by solicitor advocates in the Magistrate’s courts. Solicitor advocates have higher rights of audience, and now frequently act as my juniors in Crown Court trials. Moving from being a solicitor to being a barrister is easy, going the other way involves taking exams. Getting into the Bar is a nightmare. We have over 600 applicants in chambers for 6 pupillages, and one guaranteed tenancy each year. Only do it, if you are absolutely convinced it is what you want to do. It is a perfectly safe option to become a solicitor, and try out advocacy, and see whether you really want to specialise in it. When you are sure you have the necessary skills and the inclination, move to the Bar. Your experience as a solicitor will stand you in good stead at the Bar.”

Mr Vos QC, Chairman of the Bar, gave me a few hints on what chambers look for in candidates. He stressed the importance of good advocacy skills, intelligence, incisiveness, personal and presentational skills and, above all, single mindedness. As he put it, “the object is to find clever people, irrespective of their social background.” Despite the many scholarships offered by the Inns of Court, he recognised that there is indeed a lack of funding for intelligent students who are unable to cover the costs of training. Amongst many initiatives that he will be leading this year, he has recommended a scheme whereby funding would be provided by banks, thus supplementing the work done by the Inns.

Tradition

In 1614, the legal Scholar Davies pointed out that “the common law of England is tradition and learned by tradition as well as books.” What is tradition’s role at the Bar?

Mr Vos QC, eloquently points out that,

“The role of tradition in the law is based on precedent i.e. the written tradition of binding precedents and the doctrine of stare decisis, where the historical applies to the present. Modern developments have, however, ruled out tradition in many aspects of the way we practice. The introduction of the Legal Services Bill is a case in point. It will develop new professional structures that we are currently unfamiliar with.

Indeed, the Bar does arguably possess more traditional features than that of solicitors working in modern City firms. The wigs, the drama, the gown, the court room, the etiquette are among many other features which make the profession seem “traditional”. However, this is all changing. As Mr Vos QC put it, “we’re moving ahead, but not without careful consideration.”

Barristers at the Bar (drinks-wise): life/work balance

A solicitor working in a Magic Circle law firm has recently died following an alleged suicide because he couldn’t cope with the working hours. Indeed, one of the questions I have always asked when interviewed for internships on my penultimate year was: “how’s the social life at this (boring looking – despite all the fancy restaurants, gyms and even beds!) place?” Conversely, what’s the social life at the Bar like? Well firstly, it must be noted that barristers practicing out of chambers are self-employed. Secondly (and no offence to aspiring solicitors), they’ve got more work to do than most solicitors. The Bar is an extremely challenging profession – it requires, inter alia, exceptional intelligence, profound determination, resilience, and an ability to work independently.

Rosalind Phelps, a relatively new practitioner, gave a little insight on what the social life as a barrister can be like:

“There are two focuses for social life as a barrister: one is your individual set of chambers, and the other is the Inns of Court. As for the latter, you will be involved with this as a student barrister as you have to complete a certain number of dinners there before being called to the Bar. All four Inns also have informal bars which can act as a focus for socialising, as well as organising various events throughout the year; the extent to which you carry on socialising within your Inn after being called to the Bar is very much a matter of personal choice but the options are there. Individual chambers vary as to their atmosphere and cohesion. My own chambers is a very friendly place and we have frequent social events (chambers drinks at least once a month), as well as the inevitable client events.”

A matter of personal choice. Yes, I reckon that’s true of any profession. You’re not really forced to go out and socialise. You do that if you want to. Just like at University. It’s a matter of personal choice. James Wood QC adds to this, that

“There is a good spirit of camaraderie and friendship in the job. The work can be isolating, and discussing work in chambers and "down the pub" is much the same as for any other profession.”

The Future of the Bar

Will the Bar survive? This is the question that academics, practitioners, international commentators and aspiring barristers ask themselves. The answer is, quite simply, a positive one, despite what the Clementi Report may have suggested. “The Bar is positioned favourably in the context of Clementi” says Mr Vos QC, “the Bar has been growing. Before we inquire into whether the Bar will survive, one must first consider what’s the role of the Bar in the legal market: What is the Bar? It’s a profession of specialist advocates and advisers.” Mr Vos QC, continues, “The Bar operates to a very high standard. But we need to retreat from the idea that it is a social elite and we need to widen access.” Indeed, he rightly points out that the Bar as a profession will survive but it needs to readjust its accessibility to the values of contemporary society.

In more detailed fashion, I asked Rosalind Phelps whether the Bar will still be around in ten year’s time. She responded,

“The Bar will still be here ten years from now. Solicitor advocates have been around since the Courts and Legal Service Act 1990 but are even now very few and far between (I have only come across one in my whole career). The vast majority of High Court advocacy is still done by barristers and I do not think that is likely to change. One effect of Woolf reforms (as well as the stable state of the economy over the past few years) has been that there is less civil litigation than there was ten years ago. The likelihood is that this will continue in the future, and that commercial barristers will find themselves doing less court work and increasing amounts of other work such as alternative dispute resolution, arbitrations and tribunal work. But there will in my view remain a place for the Bar as specialists in advocacy and litigation/dispute resolutionnfor the foreseeable future.”

This goes hand in hand with Mr Vos QC’s description of the bar as a specialist profession doing a special kind of job. It’s all quite simple. Just like a carpenter is the business of carpentry, and a teacher is in the practice of imparting knowledge and skill, so too are barristers a distinct and specialized profession which operates to very high standards and undertake tasks which requires a special type of training and skill.

James Wood QC echoed the defence of the profession’s existence, emphasizing the expertise of barristers:

“I have lived with the suggestion that reforms were going to see "the death of the Bar" since the start of my career in 1975. In fact the profession has adapted and modified well. My fundamental conviction is that an elite advocacy profession will always survive, and there will always be a need for a significant body of its work to remain publicly funded. We should not be afraid of reform, but should embrace it, and constantly work to modify the profession. The Bar is now a profession where racism and sexism are largely of the past, and where intellectual excellence is rewarded in an intensely competitive market place for our services.”

Learn from the Best

I know what you might be thinking. I’m not good enough, I’m not going to make it, and they’ll never take me on. Emma Jackson, barrister at 3 Stone Buildings, a top commercial set in London, graduated from Warwick with a First Class degree. She applied to 12 chambers and only got one interview. So do not panic! Even Mr Vos QC, the Chairman of the Bar, voted Barrister of the Year in 2003, a judge of the Court of Appeal of Guernsey and Jersey, found it difficult to secure tenancy when he was our age. As we were coming to an end of the interview, he said:

“The most salutary experience of any barrister’s career is to be rejected…”

Truly inspiring words. Even if you don’t make it as a barrister, don’t torment yourself. A.V. Dicey, the constitutional theorist, was a failed barrister who then went to academia to become Vinerian Professor of English Law at Oxford and leading constitutional scholar of his day.

Having met so many barristers, and undertaken quite a few mini-pupillages, I would advise you to work hard, get a good degree, try doing at least 2 or 3 mini-pupillages, participate in some sort of public speaking such as mooting, drama or debating, think about the money factor and ask yourself this: do I have what it takes? If the answer is no, think again, because the image of the Bar that you may have in your mind is changing as I write – the conventional perception of the profession won’t help you much in making an informed decision in managing your career prospects. To paraphrase Lord Hoffman, that perception now “lies too far in the past to be of much value to anyone thinking of joining today.”

The Bar is evolving afterall – it is no longer a patriarchal and exclusive institution. Traditions are accumulated over centuries and eroded by contemporaneity. Our very own precedential system suggests a tendency to look at and rely on the past. This finds strength with the doctrine of stare decisis et non quieta movere, (stand by decisions and do not move that which is quiet). Silence now needs to be disturbed and we must revisit the rationales and realities underpinning our legal profession. The examination undertaken in this article has demonstrated that the Bar is an extraordinary career, extremely rewarding, adaptable and welcoming to intelligent and determined individuals. “We choose people of quality” says Mr Vos QC. If you think you’ve got what it takes, do not hesitate further; for this is your wake up call if you’re thinking to be called to the Bar.

The author would like to express his gratitude to Camille Noirot for her assistance in the preparation of this article.

Extraterrestrial Law: The Legal Implications of Alien Co–Existence (co–authored with Jay Jagaysia)

For the print version visit the Warwick Law Society here.

“I think what we feared were the possibilities, the truth we both know” (Fox Mulder, X-Files)

Extraterrestrial intelligence has fascinated human populations from ancient Greece to modern times. Beginning with Democritus and later supported by Copernican ideology, the concept of potential contact with alien life is certainly not a novel idea. Historical interest has manifested itself through modern mediums such as conspiracy propaganda, science fiction literature, television programming, and Hollywood movies. From Star Wars to my personal favourite the X-Files (my co-author is shockingly a Star Trek enthusiast), there is no escaping the reality that the possibility of extraterrestrial contact has shaped our modern psyche. The truth is certainly out there, and until discovered, precautionary principles dictate that the best way forward is to presume in the interim that alien life does exist and that contact will eventually be made. This article proceeds on the basis that extraterrestrial contact will be made, and that alien life will be accommodating to co-existence with human life. Simply put, we will be dealing here with the friendly green aliens, not the mean ones associated with such films like Predator and War of the Worlds. If harmonious co-existence is to ever be achieved, surely legal instruments will have to be used to regulate extraterrestrial affairs. Can existing legal principles be modified to meet the needs of extraterrestrial law?

Property Law and Aliens – Space Easements, Universal Adverse Possession, and Intergalactic Nuisance:

The easement holds great promise as a legal tool to regulate rights of way in space. Convenient transportation routes take on a new meaning in space, where detours may take on a light years dimension. Black holes would no doubt represent a formidable transportation advantage to those who controlled them, allowing space ships to move quickly to distant galaxies. Assuming that express easements or easements of necessity will not be common because of obvious language differences and the vastness of space, and that the requirements of Re Ellenborough Park [1956] would remain applicable, what form would easements arising by prescription take on? What will constitute long use and acquiescence in space? Perhaps our earthly notion of years will have to be magnified to take into account the time delay in space travel. For example, instead of 12 years of continuous use being sufficient to satisfy a prescriptive easement, easements regulating humans and aliens will require the introduction of a new quantum of light years. Acquiescence requirements will also have to be modified. Space ships and planetary radar technology will surely be able to detect users across wide distances. It may be that acquiescence will be presumed on the basis that the user was not destroyed in space by the ballistic capabilities of the servient owner.

Adverse possession will certainly take on a new dimension in space. Since space represents such a vast area, there will be a strong utilitarian policy impetus to allow for legal regulation that seeks to maximise the use of property in space. If the principles of adverse possession will ever have a legal role to play in regulating alien and human behaviour in space, then the limitation period will have to be adjusted to reflect any necessary temporal enlargement. 12 years will certainly not be enough time to allow for space travel. The implications of the Land Registration Act 2002 will also have to be considered. Although at this time unclear, different languages surely must exist among alien populations, and the Register will have to be multi-lingual in order to accommodate the affected parties. With this said, if alien populations are as advanced as I personally know them to be, then they will presumably be able to speak many languages, including earthly ones. However, us primitive humans will find great difficulty in understanding alien dialect, and translations will have to be provided so that we can effectively assess our positions. A wider consideration is the potential scope of adverse possession. Can aliens and humans gain legal interests in planets or only parts of planets? This may not be very important if there is a proprietary dispute over useless Pluto, but may take on greater significance in more exciting planets, especially if they prove to be resource-rich.

The law of nuisance will probably take on a most exciting role in extraterrestrial law. Will the paradigmatic authority of Bernstein v Skyviews (1978) any longer hold any weight, or will we have to revert back to a strict interpretation of the cuius est solum maxim which holds that he who owns land owns everything reaching up to the very heavens and down to the depths of the Earth. Alien surveillance technology will no doubt be much more invasive, and there are legitimate concerns that surveillance from even long distances may infringe an owner’s right to private and home life. Extraterrestrial law may have to extend existing protections in the light of alien technology. Of perhaps greater significance will be whether the law of nuisance will be able to accommodate situations where aliens and humans live together as neighbours. The encroachment of alien life will likely bring new nuisances such as ‘green slime’ residue, foul smells, and unimaginable noise disturbances. Further, what we may describe as typical will have to be adjusted in the light of complaints brought by alien populations.

From International Law to Intergalactic Legal Principles:

We are limited, not by our abilities, but by our vision. Vision is, indeed, the art of seeing what is invisible to others. Our legal system tends to provide specific and limited responses to particular problems. Moreover, the law tends to be excessively anthropocentric. The product of these inevitabilities is two-fold. First, our legal vision is limited by our human experiences on earth. Second, and despite what natural lawyers may contend, the law is a creation of the human imagination, and is therefore utilised to govern the machinery our very own civilization.

This article invites the reader to contemplate beyond our foundations on Earth. Ask yourself this: what would happen if a human came into personal contact with an extraterrestrial being? One can only speculate the various answers to this question. However, in the US, The Extraterrestrial Expose Law 1969 makes it illegal for somebody to have contact with an extraterrestrial being. The Federal Statute states that “anyone guilty of such a contact automatically becomes a wanted criminal to be jailed for one year and fined $5,000. The N.A.S.A administrator is empowered to determine with or without a hearing that a person or object has been extraterrestrially exposed, and impose an indeterminate quarantine under armed guard, which could not be broken even by a court order”. Surely, this sounds odd. Is it in the best interest of humanity to confirm, or disconfirm, the existence of extraterrestrial life? Perhaps for the US, aliens will be the next personification of terrorism. However, remember that this article deals with friendly aliens. What will their rights be? Will we owe duties to them? How will contact with extraterrestrial life affect international/universal law?

The Universal Declaration of Human Rights (UDHR) emphasises that the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace of the world.” By undertaking a rather straightforward literal construction, it is clear that aliens are left out of the human rights equation. Will we detain them and conduct cruel experiments on their frail little green bodies? Surely Article V, which prohibits torture, cruel, inhuman or degrading treatment, will not be of any use to the little green creature. Article IV of the UDHR provides that ‘no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.’ Extraterrestrial beings, however, are not privileged enough to benefit from this provision: under international law, it is arguable that an alien would be considered ‘less than human.’ We all know that this form of overt discrimination, or even hierarchical categorisation, has been the cause of many catastrophes in the past. Just think about the potential for future conflict that such treatment may cause. We abuse their innocence and generosity, benefit from scientific experiments, dishonestly appropriate their futuristic space ships (would that count as theft?), only to later find out that those species are part of a wider civilization which has the ability to destroy planets and even galaxies. Thus, we ought to grant them rights – Alien Rights – so that human beings and aliens can co-exist peacefully. This may, however, cause juridical difficulties. If an alien decides to bring an ‘Alien Rights’ claim before a human court, we ought to have a judicial bench composed of a mixed panel: human and alien judges sitting alongside each other.

Once extraterrestrial contact becomes frequent, the creation of an ‘Intergalactic Court’ may prove to be the only judicial mechanism to govern disputes between civilizations in different galaxies. The court will be empowered to interpret future sources of law such as the Prevention on Inter-Galactic Genocide, The Treaty on the Protection of Space Minorities, and the Universal Intellectual Property Treaty. The formulation of such intergalactic laws will certainly pose drafting difficulties. Aliens may have a different interpretation of justice, or perhaps they don’t even strive for such a concept. An ultramodern legal profession could emerge, with intergalactic lawyers holding LL.BTs (Legum Baccalaureus Terra). Legal education will be transformed. Warwick may even have a campus on Mars.

The use of force provisions in Art 2 (4) of the UN Charter may have to be extended and modified to encompass the ‘territorial integrity or political independence of any Space State.’ Jus Cogens principles will have to adapt to the universal values of the day. Our understanding of self-defence in international law, and particularly the concept of pre-emptive strike, will have to reflect the respective technologies of the time.

How could trusts law become relevant in our relationships with aliens? Hopefully, the basic tenets of trusts law will change so that human beings will be able to hold planets on trust for the benefit of aliens, and vice versa. Furthermore, the inhabitants of a planet will be able to hold the planet on trust for the benefit of future generations. Most of the tidal effects seen on the Earth are caused by the Moon’s gravitational pull. Before somebody sells the Moon to an evil alien who plans to deprive us from our lunar benefits, there should be a general principle of international trusts law providing that our generation ought to hold the Moon on trust for the benefit of future generations.

Blaise Pascal once wrote “through space the universe encompasses and swallows me up like an atom; through thought I comprehend the world”. Although this article may seem, and quite rightly, a work of fiction, it nonetheless challenges our limited, anthropocentric vision of law. We ought to initiate a journey, beyond our planetary frontiers, to consider the extraterrestrial application and justiciability of our laws before it becomes too late.

Conclusions:

The inspiration for this article came from a paper published by our own Gary Watt entitled “The Soul of Legal Education”, which called for greater imagination within the fabric of legal matriculation. From the student perspective, imagination can provide not only a useful tool to complement our legal studies but can also serve to breed some much needed life into law, which may help us to overcome the banality of revising legislation and memorising key decisions. In this sense, the article is intended to attempt to move in the direction intimated by Gary Watt, and to demonstrate that the scope for imagination in law, although latent, can be potentially wide reaching. Although our ideas were meant to be lightly received, there are some important material considerations resulting from our fictional analysis. It is clear that it will be extremely difficult to import existing legal principles to govern relationships in new jurisdictions between parties who share little in common. The better way forward may focus instead on Rawlsian first principles and mutual negotiation from an original position. In this way, prejudice can be removed from legal principle, and affected parties can instead work from a clean slate, so that everyone can leave the party with an equal slice of cake. Although this may always remain a pipe dream at the global level, the future prospects within Europe may be more promising. With enlargement into new areas with vastly different cultures and legal traditions, perhaps lessons can be learned from a fictional exercise which seeks to simulate the inherent difficulties of legal harmonisation across cultures, States and even space.

• The authors would like to acknowledge Jabba the Hutt, Dana Scully and Spock for their helpful comments on earlier drafts. Any omissions or mistakes are of course our own.

The ghost of international law (published in Obiter Dicta, Law Journal)

Shortly after the Second World War, international law has been developing in many directions. International legal rules have been subject to extensive and even radical criticisms throughout its evolving childhood. However, it was not until this generation that the debate of whether international exists gained momentum. There is a continuing tension between those rules already established and the constantly evolving forces that seek changes within the international system. One of the major problems of international law is to determine when and how to incorporate new standards of behaviour and new realities of life into the already existing framework, so that, on the one hand, the law remains relevant and, on the other, the system itself is not too vigorously disrupted. This is indeed what any legal system endeavours. However, international law (and bearing in mind its international character) poses many unanswered questions. Is international law just a set of documented treaties and agreements? Does it have any binding force? How should it be enforced? Or ultimately, who should enforce it? Virtually everybody who starts reading about international law today does so having learned or absorbed something about the principal characteristics of ordinary or domestic law. Such identifying marks would include the existence of a recognised body to legislate or create laws, a hierarchy of courts with compulsory jurisdiction to settle disputes over such laws and an accepted system of enforcing those laws. Without mentioning a legislature, judiciary and executive, it would seem that one does possess the right vocabulary to start talking about a legal order. Indeed, international law does not fit this model. International law has no legislature. For instance, the General Assembly of the United Nations comprising delegates from 191 member states exists, but its resolutions are not legally binding save for certain of the organs of the United Nations for certain purposes. Moreover, there is no adjudication system. The International Court of Justice does exist at The Hague but it can only decide cases when both sides agree and it cannot ensure that its decisions are complied with! Above all, there is no executive or governing entity. The Security Council of the United Nations, which was intended to have such a role in a sense, has at times been effectively constrained by the veto power of the five permanent members. Thus if there is no identifiable institution either to establish rules, or to clarify them or see that those who do no comply with them are punished accordingly, how can what is called international be in any way or form, law? However begging for elaboration and further discussion, this question we will leave to omit, inasmuch as it is foreign to the present inquiry. The principal purpose of this article is to inquire into the historical development of ‘international law’, because it is by understanding its history that perhaps the reader may contemplate about its present and eventually wonder into its uncertain and promising future.

It is generally accepted that the foundations of international law as it is perceived today lie firmly in the development of Western culture and political thought. While the modern international system can be traced back some 500 years in the writings of Francisco Vitoria, Alberico Gentili and Hugo Grotius, certain of the basic concepts of international law can be discerned in political relationship thousands of years ago, around 2100 BC. At that specific point in time a solemn treaty was signed between the rulers of Lagash and Umma, the city-states situated in the area commonly known as Mesopotamia. It was inscribed on a stone block and concerned the establishment of a defined boundary to be respected by both sides under pain of alienating a number of Sumeria gods. Next on the agenda was an international treaty concluded between Ramses II of Egypt and the Kink of the Hitties for the establishment of eternal peace and brotherhood. Since then, many agreements between the rival Middle Eastern powers were concluded, usually aimed at embodying in a ritual form a state of subservience between the parties or attempting to create a political alliance to contain the influence of an over-powerful empire.

Following the chronological bar, the next main achievements worth noting were materialised by the Greek and the Romans. The era of classical Greece, from about 6th century BC and onwards for a couple of hundred years has been of overwhelming significance for European thought, with the writings of Socrates, Aristotle and Plato. However, Greek awareness was limited to their own competitive city-states and colonies. Those of different origin were barbarians not deemed worthy of association. The value of Greece in a study of international law lies partly in the philosophical, scientific and political analyses bequeathed to mankind and partly in the fascinating state of inter-relationship built up within the Hellenistic world. Numerous treaties linked the city-states together in a network of commercial and political associations. Rights were often granted to the citizens of the states in each other’s territories and rules regarding the sanctity and protection of diplomatic envoys developed. Certain practices were essential before the declaration of war, and the horrors of war were somewhat ameliorated by the exercise, for example, of religious customs regarding sanctuaries. The Greeks, however, had no sense of world community in spite of the growth Greek colonies throughout the Mediterranean area. However, this Greek handicap was not associated to the able administrators of the Roman Empire.

The Romans had a profound respect for organisation and the law. The law knitted together their empire and constituted a vital source of reference for every inhabitant of the far-flung domain. The early Roman law, the jus civile, applied only to Roman citizens. It was formalistic and reflected the status of a tiny, unsophisticated society rooted in a unfertile soil. It was unable to provide a relevant background for an expanding, developing nation. This need was served by the creation and progressive augmentation of the jus gentium. The jus gentium was the common universal law based on the doctrine of the universal law of nature (otherwise referred to as the Natural Law) and thus overrode the narrow jus civile until the latter system ceased to exist. It provided simplified rules to govern the relations between foreigners, and between foreigners and citizens. One of the most influential of Greek concepts taken by the Romans was the idea of Natural Law. This was formulated by the Stoic philosophers of the 3rd century BC and their theory was that it constituted a body of rules of universal relevance. Such rules were rational and logical, and because the ideas and precepts of the ‘law of nature’ were rooted in human intelligence and discoverable by reason, it followed that such rules could not be restricted to any nation or any group but were of international relevance and application. In addition to being a fundamental concept in legal theory, Natural Law is vital to an understanding of international law, as well as being an indispensable precursor to contemporary concern with human rights. The classical rules of Roman law were collated in the Corpus Juris Civilis, a compilation of legal material by a series of Byzantine philosophers completed in AD 534. Such a collection was to be invaluable when the darkness of the Middle Ages, following the collapse of the Roman Empire, began gradually to evaporate.

At this period in time, Islam also played an important role in the international legal system. Its approach to international relations and law was predicated upon a state of hostility towards the non-Moslem world and the concept of unity, Dar al –Islam, as between Moslem countries. Once the period of conquest was over and power was consolidated, norms governing conduct with non-Moslem states began to develop. The law dealing with diplomats was founded upon notions of hospitality and safety (aman), while rules governing international agreements grew out of the concept of respecting promises made.

The Middle Ages were characterised by the authority of the organised Church and the comprehensive structure of power that it commanded. All Europe was of one religion, and the ecclesiastical law applied to all, notwithstanding tribal or regional affiliations. For much of the period, there were struggle between the religious authorities and the rulers of the Holy Roman Empire. These conflicts were eventually resolved in favour of the Papacy, but the victory over secularism proved of relatively short duration. Of particular importance during this era were the authority of the Holy Roman Empire and the supranational character of canon law. Nevertheless, commercial and maritime law developed apace. English law established the Law Merchant, a code of rules covering foreign traders, and this was declared to be of universal application. Throughout Europe, mercantile courts were set up to settle disputes between tradesmen at the various fairs, and while it is not possible to state that a Continental Law Merchant came into being, a network of common regulations and practices weaved its way across the commercial fabric of Europe and constituted an embryonic international trade law. Similarly, maritime customs began to be accepted throughout the Continent. Founded upon the Rhodian Sea Law, a series of commonly applied customs relating to the sea permeated the naval powers of the Atlantic and Mediterranean coasts. Such commercial and maritime codes, while at this stage merely expressions of national legal systems, were amongst the forerunners of international law because they were created and nurtured against a backcloth of cross-national contacts and reflected the need for rules that would cover international situations.

During the Renaissance period, we could observe that the rise of nation-sates of Enlgand, Spain and France in particular characterised the process of the creation of territorially consolidated independent units, in theory and doctrine, as well as in fact. This led to a higher degree of interaction between sovereign entities and thus the need to regulate such activities in a generally accepted manner. It was the evolution of the concept of an international community of separate, sovereign, if competing, states, that marks the beginning of what is understood by international law. The Reformation and the European religious wars marked the decline of a continental system founded on religion and the birth of a continental system founded on the supremacy of the state. Natural Law continued to have a profound effect on the creation of international legal rules but the subject was somehow distinct and underived from any other, and it was with such an intellectual background that Renaissance scholars approached the question of the basis and justification of a system of international law. The British historical lawyer Maine characterised the birth of modern international law as the ‘grandest function of the law of nature’.
Following a number of Spanish and Italian scholars in the 16th century, such as Vitoria and Gentili, it was Hugo Grotius, a Dutch scholar born in 1583, who towered over this period and has been celebrated as the father of international law. His primary work De Jure Belli ac Pacis, excised theology from international law and emphasises the irrelevance in such a study of any conception of a divine law. Grotius conceived of a comprehensive system of international law and his work rapidly became a university textbook. However, in many spheres he followed well-trodden paths. He retained the theological distinction between a just and an unjust war, a notion that was soon to disappear from the treaties on international law, but which in some way underpins modern approaches to aggression, self-defence and liberation. One of his most enduring opinions consists in his proclamation of the freedom of the seas. Grotius opposed the ‘closed seas’ concept of the Portuguese that was later elucidated by the English writer John Selden and emphasised instead the principle that the nations could not appropriate to themselves the high seas: ‘they belong to all’.

Moving along the chronological bar, it appears that the eighteenth century was a ferment of intellectual ideas and rationalist philosophies that contributed to the evolution of the doctrine of international law. The nineteenth century by contrast was a practical, expansionist and positivist era. The Congress of Vienna, which marked the conclusion of the Napoleonic wars, enshrined the new international order which was to be based upon the European balance of power. International law became Eurocentric, the preserve of the civilised, Christian states, into which overseas and foreign nations could enter only with the consent of and on the conditions laid down by the Western powers. The Industrial Revolution mechanised Europe, created the economic dichotomy of capital and labour and propelled Western influence throughout the world. All these factors created an enormous increase in the number and variety of both public and private international institutions, and international law grew rapidly to accommodate them. The development of trade and communications necessitated greater international co-operation as a matter of practical need. In 1815, the Final Act of the Congress of Vienna established the principle of freedom of navigation with regard to international waterways and set up a Central Commission of the Rhine to regulate its use. European conferences proliferated and contributed greatly to the development of rules governing the waging of war. The International Committee of the Red Cross, founded in 1863, helped promote the series of Geneva Conventions beginning in 1864 dealing with the ‘humanisation’ of conflict, and the Hague Conference of 1899 and 1907 established the Permanent Court of Arbitration and dealt with the treatment of prisoners and the control of warfare. The nineteenth century also saw the publication of numerous works on international law, which emphasised state practice and the importance of the behaviour of countries to the development of rules of international law.

In the twentieth century, the First World War marked the close of a dynamic and optimistic century. European empires ruled the world and European ideologies reigned supreme, but the Great War undermined the foundations of European civilisation. The most important legacy of the 1919 Peace Treaty from the point of view of international relations was the creation of the League of Nations. The League consisted of an Assembly and an executive Council, but was crippled from the start by the absence of the United States and the Soviet Union for most of its life and remained a basically European organisation. Nevertheless much useful groundwork was achieved by the League in its short existence and this helped to consolidate the United Nations later on in 1946. The Permanent Court of International Justice was set up in 1921 at The Hague and was succeeded in 1946 by the International Court of Justice. The International Labour Organisation was established soon after the end of the First World War and still exists today, and many other international institutions were inaugurated or increased their work during this ‘institutionalist’ period.

In 1946 the League was succeeded by the United Nations Organisation, which tried to remedy many of the defects of its predecessor. It established its site in New York, reflecting the realities of the shift of power away from Europe, and determined to become a truly universal institution. The advent of decolonisation fulfilled this expectation and the General Assembly of the UN currently holds 191 member states.
Many trends which first came to prominence in the nineteenth century have continued to this day. The vast increase in the number of international agreements and customs, the strengthening of the system of arbitration and the development of international organisations have established the essence of international law as it exists today.

What is next for the international law? This question we will leave open to interpretation. However, it is difficult to plan an answer. This is because international law has developed an ambiguous, and to a certain extent, ‘ghostly’, character. On the one hand it is perceived and acknowledged as ‘law’, reflecting a body of rules governing certain types of behaviour or activities. On the other hand, closer analysis demonstrates how ‘international law’ does not encompass a legal definition, let alone a legal character. As we have explored at the very beginning of this article, international law has no legislature and no adjudication system. The modern international system necessitates powerful changes if greater respect for international law is to materialise. As George Bernard Shaw put it ‘we learn from history that we learn nothing from history’. History is, in fact, the only laboratory we have in which to test the consequences of thought. By analysing the historical development of international law, we learn that international law is, to a certain extent, merely an embodiment of the strong’s policies to rule the world and enforce their ‘rights’ by disregarding their duties. We learn that modern international law will not survive the rebellious future if changes do not materialise. The world as we see it today lacks the strength of a truly representative and respectable governing body which would enforce decisions in order to secure and promote peace, justice and global prosperity. Until this concretises, the world will remain a dynamic arena where the rich rule the poor while the weak serve the strong.

Imagine this scene (published in the Warwick Boar)

Imagine this chilling scene. You’re nine years old. You’re scared. You have just woken up in war-torn capital Monrovia in Liberia. You’ve lost your brothers and sisters during the brutal civil wars, and your parents died from AIDS way before you had the chance to show them your toddling skills. You soon discover that you don’t have a home, a family, a school to go to. All you have is yourself, and literally, nothing else. All you know is that other children around the block are stuck in the same horrific situation. Your options are limited. If you’re a boy, you can become a soldier to gain respect from your comrades. If you’re a girl, you may become subject to prostitution or sex trafficking. Shocked, you assume this is all a nightmare, one of those that feels so real that you even try to pinch your skin to wake up. But you don’t wake up. You can’t. It is real. How would you feel? What would you do?

The truth is that this scene is far from a dream, illusion, hallucination, head-trip. It is in fact almost a reconstruction of the lives of millions of genuine, real, innocent children in the world today. ‘Almost’ because reality can never be truly characterised into words. And as reality is always far from illusion, not only are they far from us in a physical sense, but so are their lives ridiculously different from ours. I do not pause to consider in detail the realities of the horrific lives of those unfortunate children. I leave this open to interpretation. But before you even consider imagining the horrors those kids have been through, the brutal sexual experiences they have been forced to participate in, or the disheartening conditions that they live in, I beg you to contemplate the following facts.

First things first: the key problems. One in three of the world’s children live without adequate shelter, one in five has no access to safe water, and one in seven has no access to health services. Furthermore, 121 million primary school aged children are out of school, the majority of them girls. Oh! Also, 1.6 million children have been killed in armed conflicts since 1990, while another 20 million have been forced from their homes by conflict or human rights violations. If that wasn’t more than enough, around 2 million children are recruited each and every year (the number is increasing) to work within the sex industry. In total, more than 1 billion children are living in families with a daily income of approximately £1.50. Hold on. That’s not even how much you spend on a pint, is it not?

If you believe in your own future, you must believe in the future of the world's children. No matter how much of a cliché this sounds, its nonetheless an accurate statement. You were a child once, right? If our previous generations didn't believe in us, how on Earth would we be here today?

There has been much talk on terrorism, human rights, global warming and American politics in the past few years. There exists extensive literature on these topics, as well as other interesting subjects such as Newton’s gravity theory, Shakespeare’s plays, Chomsky’s commentaries etc. and I will not undermine their importance to the world today.

But what purpose will it serve if more than 200 million children in the world cannot read it, let alone understand it, because they don’t have a school to go to?

Ultimately, you may ask yourself, why should we co-operate to eradicate not only child poverty, but also help the other 2.6 billion people living below the poverty line? Think about the scene in Monrovia, Liberia, where you had no help, no hope and no future. You were begging for help. Well, right now, they are crying for hope.

And its people like you and me that can make a difference.

We were born in what they regard as abundant luxury. The pint that you drink could buy them the food for a day, if not a week. I’m not asking you to jump on the next flight to Liberia and rescue those children nor am I asking you to donate your ‘binge’ money to charities. Far from that.

I only beg you to genuinely contemplate that ‘scene’ in Monrovia and share your thoughts, ideas or even projects with others in the community, because it is through great ideas, and great people, that truly good and amazing things are achieved.

On Legal Mathematics(published in the Mathematics Journal, University of Warwick)

Christopher Columbus Langdell, Dean of the Harvard Law School and originator of the “Case Method” of teaching law, famously advocated that Law was a science, whose principles and doctrines could be ‘discovered’ in cases, much as biologists discover the principles of their science in their laboratories. To Langdell ‘science’ conjured up the ideas of order, system, simplicity, taxonomy and original sources. The science of law involved the search for a system of general, logically consistent principles, built up from the study of particular instances. Once the general principles have been found, it is then the task of scholars to work out, in an analytically rigorous manner, the subordinate principles entailed by them. When these subordinate principles have all been stated in propositional form and the relations of entailment among them clarified, they will, Langdell believed, together constitute a well-ordered system of rules that offers the best possible descriptions of that particular branch of law – the best answer to the question of what the law in that area is.

This ‘mechanical jurisprudence’, often criticised by American realists, resembles at first the methodology used in mathematics in deriving conclusions from basic axioms and logical deductions. When a lawyer writes a brief for a case in which he has to convince the judge that his argument should prevail, he structures it just like a geometric proof. He starts with all the given facts, then states the relevant laws and precedents that relate to the case. Then he makes his argument based on these facts using deductive logic, exactly as if he were doing a mathematical proof.

Mathematicians have the ability to analyse problems and principles just as lawyers have the ability to dissect dictums and rules from cases. Comprehending certain laws, for example taxation law, is as challenging as understanding some of the most complicated mathematical theories you will encounter. Most solicitors involved in civil cases, in which people are suing others, must be able to calculate percentages, interest rates and the like to determine what is or isn't a fair settlement for the parties involved. Likewise, lawyers involved in tax or corporate law have to perform a lot of computations involving money, interest rates, percentages and proportions. Patent lawyers who work on behalf of inventors generally must also have a degree in engineering because they must be able to understand the inventions and the mathematical formulas involved in the physics or chemistry applications of the product.

Although a comparative study of the relationship between the Law and Mathematics wouldn’t result in any offspring, there exists nonetheless methodological devices used in mathematics which corresponds to those used in the application of the Law. From its birth in ancient Greece, and for over two thousand years, mathematics has been viewed a body of collective truth, being the basis of innumerable scientific theories which describe the world around us. To achieve such powerful results, early mathematicians employed deductive reasoning in their examination of new hypotheses. This logical methodology created the assumption that mathematics is a certain science. But more recent realisations in the world of mathematics have revealed that it is not the body of truths once assumed to be, and further, that the very deductive reasoning used to create and develop these truths contain flaws.
In his book Mathematics: The Loss of Certainty, Morris Kline claims that ‘the current predicament of mathematics is that there is not one but ‘many’ mathematics and that for numerous reasons each fails to satisfy the members of different schools. Uncertainty and doubt concerning the future of mathematics have replaced the certainties and complacency of the past. The disagreements about the foundations of the 'most certain' science are both surprising and, to put it mildly, disconcerting. The present state of mathematics is a mockery of the hitherto deep-rooted and widely reputed truth and logical perfection of mathematics.’ However disorganised the world of mathematics may be today, contradictions have always existed in bodies of knowledge – especially in the Law – just after periods of major revision in which inevitable periods of uncertainty follow, new ideas are allowed to reach fruition.

Accordingly, although the promulgation of the law claims to guarantee its certainty and consistency, its application is a different matter. The courts, and indeed judges, play a significant role in applying the law in the real world in real situations, thus making the ambiguity of the Law vulnerable to ultra vires interpretation. ‘Statutes are not laws by virtue of their enactment. They only become law when applied by a decision of the courts’ argued J C Gray, 20th century American realist. Thus instead of being regarded as a body of abstract rules and principles, the law shall be understood from a broader angle. Legislation is therefore no more than a source of law: it is the courts that ‘put life into the dead words of the statutes’.

Likewise, mathematical laws and principles are no more than an instrument to an end: it requires real-world situations in order for its true efficacy to be understood. The efficiency of symbols and numbers in mathematics only becomes evident when assembled in theories and applied to real problems. Although both disciplines endeavour to be certain, they are both subject to the creative interpretation and ambiguity of human minds. In other words, they are both subject to the concept of relativity. Searching for the Truth in mathematics mirrors the search for Justice in the Law; objectives which appears to be unattainable for sceptics. Unfortunately, the ordinary citizen fails to contribute to this quest for Truth and Justice, as both disciplines remain perceptibly ‘inaccessible’ by the populace at large.

Perhaps I place too narrow a definition upon Truth and Justice – for despite the seeming contradictions of mathematics and the disagreements which characterise its past, one evident theme remains. Mathematics has always been and remains to be a remarkably effective method of describing the mechanics of the world around us. Accordingly, the Law has always been and remains to be the fundamental element that holds society together. Both disciplines are of respectable value and utility, even complementary at times, and both are consistently evolving towards the same uncertain future. Even if one is to disregard absolute certainty in mathematics, the Law, or in any body of knowledge, we must not give up the search for Truth and Justice, or allow our limitations to overcome us.