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Barker, D --- "What About Law?" [2011] LegEdDig 31; (2011) 19(2) Legal Education Digest 52

What About Law?

Catherine Barnard, Janet O’Sullivan and Graham Virgo

Hart Publishing, 2011

235 pp

The authors claim that the aims of this book are twofold. Primarily it is intended to be a ‘taster’ for potential students hoping to make their minds up as to whether a career in law is what they really want to pursue as a profession. It is also intended to serve as an introductory text for students who have already decided to embark on the study of law.

As regular readers of the Digest are aware, recent issues have incorporated reviews of a number of similar books of an introductory nature for the potential law student. A decision has to made, as to whether the approach of this text has something new to offer on what is becoming a well-covered field for new or potential law students. To this extent both the Preface and the Introductory Chapter set out what the authors acknowledge is a highly original approach by ignoring the normal tactic of such books which usually set out the basics of the legal system. Instead the text adopts an exploratory approach towards the study of law by exploring what the law is, how it has developed and the reasoning followed by judges when interpreting the law.

The authors and their colleagues have chosen a bold approach by examining seven cases in the context of the seven compulsory core topics required to have been studied by English and Welsh law graduates when applying for entry to the legal profession. To the hardened law academic it is fascinating that the authors have not chosen the most popular or well known cases within the particular law topic, but cases which, although obviously relevant, could be regarded as of a more complex nature than those normally studied by first year students.

However before embarking on the specific case studies, the authors use the opening chapter to cover that which the more contemporary law academic would regard as legal method; in fact a part of the chapter is given that description. Under this heading the student learns the rudiments of the skills required to solve legal problems. These include such instances as when applying the law it is necessary to identify the nature of the problem involved in a particular case, and also how it is necessary to draw distinctions between the previous case decisions on the same topic and also to make predictions by putting oneself in the position of a judge when faced with deciding the merits of the case. Continuing with this approach in the first chapter the reader is asked to add imagination to interpretation, and to the search for principle is included generalisation and the further dimension of policy underpinning the law.

It can be gathered from this opening chapter that this is a highly unorthodox but nevertheless effective approach to the study of law, and as the book jacket description states: It shows how the study of law can be fun [but also] intellectually stimulating.

As explained above, the succeeding seven chapters each covers the elements of the compulsory core subjects required for qualifying as a legal practitioner.

In the chapter dealing with criminal law Virgo chose to consider the case of Regina v Brown (1994) within the context of the reasons characterising conduct as criminal. As some readers will be aware, this case involved the activities of 40 sadomasochistic homosexuals indulging in activities by the defendant sadists to which the masochistic victims had consented. In this chapter the reader is asked to consider whether it is appropriate to convict a defendant of a serious crime involving personal injury where the victim consented to that injury?

O’Sullivan’s choice of case under contract was Ruxley Electronics and Constructions Ltd v Forsyth (1996) which she has used to illustrate some crucial ideas regarding contractual remedies. The case involved the faulty construction of a garden swimming pool, and O’Sullivan justifies her choice by arguing that: There is much more to contractual remedies than just the boring mathematical bit tacked onto the end of a course on the law of contract.

Whilst Weir has followed the lead of his colleagues by ignoring the most obvious and popular tort choice of students, that of the snail in a bottle case – Donoghue v Stevenson (1932), he nevertheless uses it to lead into his selected tort case of McFarlane v Tayside Health Authority (2000), which is like Donoghue, a House of Lords (now the Supreme Court) case from Scotland. This case is of interest to potential lawyers in that an alleged carelessly performed vasectomy operation resulted in the birth of a healthy baby unwanted by the parents who consequently sued for the costs of raising her. Although the plaintiff’s case finally failed on appeal in the most senior court in the United Kingdom, it is most useful to a student of law in that it ranges over many aspects of the law of torts including distributive justice, and for Australian readers in particular the fact that the Australian High Court declined to follow the decision in Mc Farlane and did award damages where a healthy child had been born in similar circumstances.

Gray justifies his claim in discussing land law or real property as; an arena in which the agony and ecstasy of life are played out against a backdrop of abstract proprietary concepts followed by an even more emotive statement on the topic: In the case of land, the factor which intensifies the explosive cocktail of proprietary emotion is the truism that there is a strictly limited supply of the commodity. After such statements it would have to be a highly unemotive student who failed to be roused by the facts of Chhokar v Chhokar (1984). In this case, which involved the problems of legal and equitable ownership of a family home, the reader is asked to appreciate the fact that the case: provides a superb cautionary tale couched in the improbable language of the law of realty and that: human weakness is countered and ultimately redeemed by the magnanimity of a courageous and determined woman. Powerful forces of lust and cupidity are brought low. There is an eventual triumph of good over ill. There is an ethically satisfying conclusion. In the opinion of this reviewer there could be no better introduction to stimulate the law student in property law than this chapter by Gray.

If the subject of land law is encouraging in its intensity to stimulate the law student then even more unexpected is the approach by Virgo, who in adopting a description by Dickens in Bleak House, uses this to illustrate how different the study of equity was in the 19th Century to that of today. He argues that the former dry and technical nature of equity has now given way: to a subject which is intellectually challenging but provides solutions to some important and difficult current problems. His choice of case, Foskett v McKeown (2001), involved the breach of an express fixed trust and the application of the following and tracing rules. Again this is a bold choice of a case to illustrate the principles of equity, because as most Digest readers will be aware, the rules to tracing are interpreted differently when tracing property at law, the claimant having a proprietary base recognised by the common law as compared to equity whereby the proprietary base would be regarded as equitable. One of the arguments by Virgo in choosing Foskett v McKeown is that an analysis of the case not only tells the student a great deal about the nature of equity, but also forces him or her to think more deeply regarding their approach to legal method.

On the topic of constitutional law, Elliott focuses on suspected involvement in terrorism as raised in the case of Belmarsh (A and Others v Home Secretary (2005)) to illustrate the fact that the United Kingdom does have a constitution (although not a written one). In examining this particular case he uses it to illustrate some of the (in his words): key features – and peculiarities – of the UK constitution.

On the final topic of the European Union Law Barnard recognises the preconceived prejudices which exist in the United Kingdom regarding the European Union: You are bound to be either (strongly) for or against it. And perhaps ‘against’ is more likely, given the often hostile media coverage in this country about the EU. However as she explains, whether you: love it or loathe it, the EU [has become] a fundamental part of the daily existence in the UK and European Union Law [has been recognised as]: having a profound effect on every aspect of national law, since EU law is part of our law and takes precedence over our law. In using the case of Bosman (Case C-415/93 Union Royal Belge des Societes de Football Association ASBL v Bosman (1995)), a Belgian footballer and his dispute with both the URBSFA (the Belgian football association) and UEFA (the Union of European Football Associations), Barnard has adopted the sport of football to explain the doctrine of supremacy of EU law, and so has managed to put European Union Law into context for students who may have an interest in sport. She is then able to compare and contrast the effect which EU law has on not only the: world of the professional football, but also about the nature of EU law, its relationship with national law, the legal reasoning of the European Court of Justice and the broader political context in which the court operates.

In the concluding chapter the three authors pose the question – ‘So what about law?’ – using it to review the many themes and ideas which the student will have encountered when reading the book. In doing this they explain the contrast between the complex process of legal reasoning as compared to a common law system built on precedent. The problem is that the latter will always be subject to the reality that it is extremely rare for the facts of a case to be exactly the same as the facts of an earlier precedent. They also explain how the case studies used in the book illustrate the problem posed for judges in having to decide whether to apply or distinguish an existing legal rule. As always the focus for the reader is on the continuing theme of considering the connections and effect of one legal rule with another, and responding to the challenge of drawing distinctions and considering arguments and concepts from disciplines outside the law. If the reader is stimulated by this challenge then they will relish studying law at university.

There is one more challenge contained in the book. This reviewer was intrigued as to the choice of the image used in the cover; that of a fresco in Coit Tower, San Francisco, California, USA, showing a robbery in process. In an Epilogue the authors ask the reader to look at the image on the front cover and identify how many legal issues are involved in the activities contained in the picture? This is just one more example of how the authors have endeavoured to adopt an innovative style throughout the book which will both stimulate and engage the reader.

Emeritus Professor David Barker


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