Blackstone's Tower: The English Law School - College of Social ...

The Law Library
"Is it not in the nature of the lawyer's work that his mind concentrates
on phenomena which are socially marginal? Legal thinking must, I think,
be constituted that way—this is perhaps the principal difference
between law as an academic discipline and the other social sciences
which are concerned with typical and not with marginal situations.
Above all: litigation is a pathological phenomenon in the body politic.
The reported cases are the cases of the most serious diseases, and the
leading cases are often the worst, and least typical of all.... Is legal
education based on case law not like a medical education which would
plunge the student into morbid anatomy and pathology without having
taught him the anatomy and physiology of the healthy body? More than
that, is the concentration on decided, and especially on reported, cases
not like a clinical education which would enable the doctor to diagnose
and to treat some complicated brain tumor without ever telling him how
to help a patient suffering from a simple stomach upset?" 35
The law reports are selective in another sense. They only give one,
rather peculiar, perspective on an individual dispute. They tend to
treat it in isolation from wider issues; they process the facts and
frame the issues for a quite narrow and specific purpose. They typically
leave out large parts of the wider context and the human
dimensions of the process. They treat what are often complex
dilemmas and tragic choices in an artificially rigid, all-or-nothing,
winner-takes-all dichotomy 36 : guilty/not guilty; liable/not liable.
Only exceptionally do they provide for compromise or for an
admission that a problem is insoluble. 37 The duty of the judge is
to decide and there are elaborate rules and devices—such as presumptions—for
assisting in the process of producing a final resolution
to often insoluble dilemmas.
Stranger still, the law reports often to do not tell us the end of
the particular story. They do not tell us what happened to the police
officers and the Hillsborough plaintiffs and football stadiums after
the House of Lords' decision in Alcock. 38 The law reports contain
a massive collection of artificially selected and truncated slices of
legal life which conceal and omit as well as inform.
Recently a new genre of literature has developed of which Professor
Brian Simpson is the principal exponent. Contextual studies
of leading cases explore their broader social context and the human
dimensions and political significance in depth. For example,
Simpson's enthralling Cannibalism and the Common Law explores
the background to the case of R v. Dudley and Stevens, in which
it was held that killing and eating a fellow crew member in order to
save one's own life cannot be justified by a defence of necessity. 39
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