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You are here: BAILII >> Databases >> United Kingdom Journals >> Collier R, 'Book Review, Cownie and Bradney, English Legal System in Context' URL: http://www.bailii.org/uk/other/journals/WebJCLI/1998/issue1/collier1.html Cite as: Collier R, 'Book Review, Cownie and Bradney, English Legal System in Context'

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Fiona Cownie and Anthony Bradney, English Legal System in Context, Butterworths, London 1996, xxiii+360p, ISBN 0 406 51181 0, pb £19.95

Reviewed by Richard Collier

Reader in Law
Newcastle Law School
<[email protected]>

Copyright © 1998 Richard Collier.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

When asked 'what to expect' from the publication of (yet) another textbook on 'the English Legal System', it is likely that the response of many legal academics and students would be both predictable and homogenous. And, indeed, the selection of topics which are covered by English Legal System in Context do reflect in many ways the standard concerns of most, if not all, 'English Legal System' courses. The authors recognise the arbitrary nature of this textbook tradition they are working in as an enterprise reflecting, not natural divisions in law or legal institutions, but the needs of course divisions drawn up largely for teaching purposes in university law schools. There is a chapter asking "What is 'the English Legal System'"? and the chapters which follow, in seeking to 'flesh out' this question, address such familiar subjects as Courts and Tribunals, Legal Reasoning, Judges and the Legal Profession, Civil Courts, Policing, Criminal Justice and so forth. This is the 'very stuff' of the 'English Legal System' as it is currently taught and the book is structured in such a way that it embraces these 'core' issues in something like a systematic manner. Yet this is also a book that is positioned by its authors, because of its 'contextual' approach, as being somehow 'other' to the mainstream broadly 'doctrinal' 'English Legal System' textbooks which preceded it. Singled out for particular comment and critique in this regard are Jackson's The Machinery of Justice in England, Walker and Walker's The English Legal System, Smith and Bailey's The Modern English Legal System and White's The Administration of Justice. Notwithstanding the ways in which the evolving 'English Legal System' textbook tradition represented by these books may have sought, with varying degrees of success, to complement the analysis of legal rules with an increased awareness of questions of process and practice, it is Cownie and Bradney's argument that there has nonetheless remained a common purpose to this tradition in terms of both its scope, method and, above all, its underlying conceptualisation of law: that is, "the rule centred paradigm" (pp 3 - 5) of previous texts. Thus, what is different about English Legal System in Context is its explicit attempt to provide what the authors describe as a "richer" "deeper" idea of how the "system" works via an engagement with "a variety of approaches to legal theory", notably "the process paradigm", the perspectives of "law in action" and legal realism, legal anthropology, informal legal systems, legal pluralism and the idea of "semi-autonomous" legal fields. Each of the above, it is suggested, have "something to contribute" towards an analysis of 'English Legal System' based on "an integrated theory of law", an approach which might "be able to look at broad social structures and the effects of policy on our legal worlds" whilst also being able "...to look at the consequences of the behaviour of the actors within the legal worlds" (p 19).

The theoretical frame of the study, introduced in Chapter 1, seeks to fuse a broadly interactionist perspective with an integration of "macro- and micro- approaches" to law. Approvingly citing the work of Henry (1983), this is seen as involving recognition of the "dialectical, interdependent and mutually implying relationship between structure and social action". What results is the possibility of "transcending the view that law is either the product of structure or the outcome of interaction" (Henry, 1983, p 61). As developed in the studies of the specific areas of the legal system which follow, whether it is in relation to courts, tribunals, police powers, legal reasoning or civil justice, Cownie and Bradney highlight what they see as the complexity and diversity of dispute resolution, the always contestable nature of the 'English Legal System'. This in itself may not be (as the authors' note) a novel observation. What English Legal System in Context seeks to do, however, far from treating issues such as arbitration procedures, private courts, conciliation schemes and processes removed from the state apparatus as being peripheral to the (rule/state-centred) main text, is to move such concerns 'centre stage'. In so doing a body of socio-legal scholarship which has so often appeared in footnotes within previous textbook discussions, as adjuncts to the 'main business' of describing and recounting rules, instead surfaces as central to the intellectual project at hand.

What results is a most impressive piece of scholarship. As a critical introduction to, and overview of, 'the English Legal System' the publication of English Legal System in Context is to be welcomed. What sets the text apart from many others in this field is the scope of its vision and ambition. Importantly, it does more than synthesise existing work; it provides a broad based, critical and challenging introduction to a subject that has too often appeared as being within the intellectual stranglehold of doctrinal method. The book is meticulously referenced, clear and accessible to law students and lecturers alike, whilst also seeking to challenge and engage the questioning mind in ways in which, it could be argued, many other textbooks in legal studies do not. There is, throughout, an admirable reflexivity about the possibilities and the limitations of the project they are undertaking (limitations, it must be said, many of which derive from the self-imposed constraints of the textbook format). A particular strength is the book's success in dealing with material from diverse fields of scholarship not normally associated with the legal textbook. Such perspectives at times 'bring alive' the discussion of issues which have, so often, appeared tired, perhaps dulled by the familiarity of the 'rule-centred paradigm'. Two of the most challenging and innovative sections of the book are, for this reader, those addressing legal reasoning (Chapters 5 and 6), where there is to be found a useful discussion of the concept of precedent and the "language of law" which, drawing on some recent developments in legal theory, is considerably more sophisticated and insightful than that which appears in many other similar texts. The chapter which is particularly welcome, however, is that addressing "The University Law School and Law Students" (Chapter 7). Notwithstanding the now considerable critical scholarship in this area, in many ways there has been little filtering through of these arguments to what might be termed 'mainstream' materials (such as the 'first-year textbook'). This Chapter, providing a much needed exception, considers the nature of both law students and University Law Schools, the processes of inculcation, hierarchy and the way in which issues such as gender mediate the experience of learning (and, indeed, teaching) 'the law'.

English Legal System in Context is a book, therefore, with many strengths. In some important ways it is a book which I would recommend over and above many of its competitors in the (already overcrowded, some might say suffocating) field of legal textbook provision. Some of the minor quibbles, and at times frustrations, felt by this reviewer in reading the book arose from what appeared to be, for the authors as much, one suspects, as the reader, the limits of the textbook format itself. It is recognised by Cownie and Bradney that the textbook could "only ever [be] a beginning". Yet at times the discussion does appear to 'scratch the surface' of certain topics (the consideration of the politics of the law school and legal education are a case in point). At other moments, one is left wishing the authors would make their own views felt. There is a tendency to 'see both sides' which, whilst admirable in providing the reader with a balanced argument and an opportunity to engage with law as 'something to be debated and discussed', nonetheless jars with what is also the authors' clear (albeit mostly implicit) faith in the idea of there being a 'truth' about 'law'. These are issues which relate to the authors' particular conceptualisation of the 'contextual' socio-legal project and, ultimately, in terms of the contribution to legal scholarship this book makes, what one feels remain unanswered are some of the questions this engagement with the 'English Legal System' raises about the nature of this contextual project itself.

To ask some questions about the socio-legal approach adopted by Cownie and Bradney is not to negate the undoubted strengths of this particular book, both within and beyond its own terms as a law textbook (for English Legal System in Context is more than 'just another' textbook). The book is based on a clear commitment to the project of socio-legal studies, an enterprise with which both authors have been institutionally involved via the British Socio-Legal Studies Association (henceforth SLSA). It is noted in the book, in mapping out the context of this particular engagement with the 'English Legal System', that the history of British legal education has over the last three decades been "replete" with those who have "rejected the black-letter tradition" from a range of critical/ideological perspectives. Cownie and Bradney recognise, quite rightly I think, that the ideological effects of 'traditional' legal education have been more complex than is sometimes made out; that "... there is nothing new in the suggestion that the study of legal doctrine is insufficient on its own" (p 134). The widening of the nature of legal scholarship that has taken place is thus interpreted in a broadly positive light. Indeed, it is in drawing on this diverse material that the authors frame their "pluralist", "integrated theory" approach:

"... the writing of this book would have been impossible without the articles and books which are themselves evidence of a wider approach to legal scholarship than is suggested by the black-letter tradition .... In writing this book we have been forced on many occasions to observe that we have no evidence about how a particular legal process works in practice or that the evidence is very limited ... ." (p 134)

The black-letter tradition is not all pervasive and the present strength of the presence of socio-legal studies in most, if not all, UK law schools attests to significant changes which have taken, and are taking, place in legal scholarship. These are changes the authors would no doubt welcome. Cownie and Bradney recognise, importantly, that, though weaker than it once was, the 'black-letter' tradition "... is still strong and it exerts a powerful influence on the psyche of the graduate who becomes a lawyer" (p 134). Yet what is also clear from English Legal System in Context is that this is a tradition which can also exert a strong influence on the legal academic. It is to the authors' credit that, within the constraints of the textbook approach, they succeed in raising quite so many important questions about the practice and theory of law within this broad (and ill-defined) field; and there will be some who will, no doubt, find this book a little too 'contextual' for their liking. However, the relationship between law and the 'other disciplines' on which Cownie and Bradney draw is itself far from clear.

To clarify; there now exists, of course, a rich body of scholarship which has sought to address the question of the (in)compatibilities of law and other disciplines. The broad parameters, fluidity and contested nature of the 'socio-legal' has itself been well-documented. The present constituency of the socio-legal would appear to be made up of scholars who would place very different emphases on the 'socio' and the 'legal' (the 'socio' itself being a revealing truncation of the 'social' preferred by some). The, at times, somewhat self-congratulatory tone in which the 'rise' of the socio-legal has been expressed in the UK context (elsewhere, and not in this text) has itself led some to question the ways in which such ambiguities of definition play out in terms of intellectual fashion and, in particular, the reconfiguring of hierarchies of knowledge taking place in a legal academy which is undergoing intense processes of bureaucratisation and commodification of research. In this context, and at times, the embrace of the 'socio-legal' has been seen as commensurate with entrepreneurial opportunity and individualist career management, so long, of course, as "... a soupçon of theory [is] added for academic good taste": Thomas, 1995, p 6). It is the recourse to the 'other' disciplines of the social sciences which English Legal System in Context depicts as 'revealing' what the law (and the previous textbooks) did not (or could not) see 'by itself' about its role in social practice.

The potential tension can be simply put: to what extent does the 'socio-legal' privilege legal categories over and above, even if it does not always ignore, issues of power and authority, questions of race, class, sex/gender? Cownie and Bradney's 'pluralist' perspective draws, we have seen, on a well-established tradition within legal scholarship which has considered the law as created and enforced by agencies of the state as being only one form of 'law' among many. It recognises the overlapping nature of patterns of regulation which arise in the interactions of different social groups with political processes that cannot, of themselves, be easily related to a centralized state authority. Thus, within the sixteen chapters of English Legal System in Context we find analyses of social sources and effects of legal rules, accounts of law as being shaped by, but as also shaping, its historical and social setting. A question remains, however, as to whether law and the 'social sciences' which are here (largely) constituted as providing the 'other' insights (i.e., that which marks this book out as different to what has gone before) are themselves discourses which negate any analysis of law as an object to be explained, rather than as a competing epistemology. To a degree, the authors' initial description of their book as being a contribution to a debate, a dialogue 'about the law' rather than a statement 'of the law' (understood as, pre-given object) meets this point. There is an implicit rejection of the idea that law exists as a pre-given 'object' to be explained. However, what I think remains open to question is the ways in which the book conceptualises the possibility of determining the functional or instrumental link between 'law' (whatever that is) and 'context' (again, whatever that may be). Those who are depicted at one point as putting their case "too strongly" (p 134) might question the implicit epistemological frame whereby such efforts to determine the functional or instrumental links between law/context are presently taking place within the domain of the socio-legal more generally. Others, for example some feminists and critical legal scholars, have sought instead to 'unpack' or deconstruct the way in which texts (including legal discourse) themselves constitute understandings of 'context', of the 'social', at particular moments.

The 'law in context' approach remains central to socio-legal studies. Yet as Nelken (1996) has suggested, such attempts to put the law 'in context' at times only succeed in getting it out of context. That is, law's lack of self-reflexivity of it's own 'context' becomes an intrinsic feature of its social reproduction. In other words, the law in context movement (placing itself 'in context') can itself be seen as a product of, and as assuming, certain social and political conditions; for example, the kinds of changes taking place in the legal academy which, it is argued, have positioned the socio-legal scholar as a woman or man 'of the hour'. When it is taken as a template of 'success' as a legal academic (as it has been in the UK) then the much-vaunted (indeed, in some instances, recommended) embrace of the socio-legal can be seen as taking on a rather unreflective aspect as a celebration of 'perspectivism' slides into an identification with an ostensibly 'critical' project which, nonetheless, continues to reify law in some important respects, law continuing to distort the knowledges which it embraces with such fervor, seemingly oblivious to the 'context' of its own (re)production.

This admirable, challenging and scholarly book is, without doubt, superior to some of the past doctrinal analyses of the 'English Legal System' in the ways in which it addresses the multi-layered nature of law. Its strengths are such that it is a book that is to be recommended for all students and lecturers working in this area. It does, without doubt, make a valuable contribution to the field. Yet, ultimately, I wonder whether English Legal System in Context is also a book that serves to reveal both the strengths and the weaknesses of contextual, socio-legal scholarship, at least as it is presently being conceptualised in the UK context. As Nelken has commented, writing in the pages of the Newsletter of the SLSA:

"... law in context...unconsciously mimics law in its own catholic tolerance of different and not necessarily consistent disciplines or critiques as long as they allow it to proceed with its project. So far, however, law students have not been provided with an account of law which contextualises the bounded and practical rationality of legal and other actors and the process of legal reproduction without assuming that they could or should have adopted the place, point of view,or practice of the discipline which produces this account." (Nelken, 1996, p 11: my emphasis)

Proceeding with the 'project' of an undergraduate textbook is, one suspects, in itself somewhat inhibiting of any engagement with such broader tensions and questions around the law/context relationship. What, ultimately, is distinctive about socio-legal studies as opposed to other studies of social organisation? In the embrace of the social, is there a point at which 'law' itself loses its analytic utility? As Lacey (1994) has noted, again in the pages of the SLSA Newsletter (where these issues have, for some time, been addressed), it is possible that "... a more open recognition of [the] normative dimension of socio-legal studies might ... have the advantage of encouraging the (already significant) intellectual exchange between and indeed intermingling of 'socio-legal' and 'critical legal' scholarship'". The problem which remains for those of us working in or around this field is not just the well-documented imperialism of the category of 'the legal' itself, the narrowness of lawyer's conceptions of 'law', but also the contingency of the ideas of the 'social' (the 'context') within the conditions of late-modernity/postmodernity. Ultimately, and given the constraints of the nature of the textbook project in hand, it is to the authors' considerable credit that they have produced such a challenging, accessible and informative book.

Bibliography
Bailey, S and Gunn, M (1991) Smith and Bailey on the Modern English Legal System 2nd ed (London: Sweet and Maxwell).
Henry, S (1983) Private Justice (London: Routledge and Kegan Paul).
Jackson, R (1989) The Machinery of Justice in England, 8th ed (Cambridge: Cambridge University Press).
Lacey, N (1994) `Socio-Legal Studies: Definitions and Directions' Socio-Legal Studies Newsletter No 12, Summer pp 2-3.
Nelken, D (1996) `Getting the Law "Out of Context"' Socio-Legal Studies Newsletter No 19, Summer pp 12-13.
Thomas, P (1995) `Speaking Truth to Power' Socio-Legal Studies Newsletter No 15, Spring, p 3.
Walker, R and Walker, M (1965) The English Legal System (London: Sweet and Maxwell).
White, R (1991) The Administration of Justice, 2nd ed (Oxford: Blackwells).