Thursday, December 29, 2005

How I became Interested in Law

I wonder how people become lawyers. For some it must be the lure of money; for others it is the desire for justice. For me it was neither. My entry was a two-step process of error and luck. Let me tell you the story.

Error: I wanted to study economics at LSE. I started and by the end of the first year I knew my mathematics wasn't going to keep up with the pace. And I couldn't face the prospect of another two years of the same. Just before university I had worked with a tenants' association and knew a little about law. That would be my alternative. I spoke to my tutor who thought losing me to the law department could only be a boon to economics. The convenor of the law department was kindly enough to accept my application to transfer. All it took was for the registrar to sign the transfer and I would embark on a new degree.

Unfortunately, the registrar was one of those people who believed that once a bed was made you had to lie on it regardless--an acolyte of Procrustes. I couldn't understand why he was so difficult about it as everyone else, economics and law, were happy. I came out of his office with a glum face. I heard a noise and it was one of the several women who worked in the registrar's office. She was asking me what was making me sad. I told her the story and she commiserated sending me on my way with a "Don't worry, dear." Hmm.

I spent the summer vacation working in factories saving money for the following year. Some of it I spent on a holiday with my girlfriend in the south of France. It was near the end of September when we returned and waiting for me was a letter from the LSE. In it the registrar told me he was pleased to approve my transfer from economics to law. What? I was exultant but very confused.

Back at LSE for the first term of law, I went to the registrar's office to collect my papers. This time I was smiling as I entered the office where the women worked. They recognized me and asked how I was. I told them the strange thing that happened: how the registrar had inexplicably changed his mind. They looked at each other in a conspiratorial way and said they had something to tell me. After my last visit they were sorry for me and my plight and wanted to help. They typed the approval letter and inserted it among the letters to be signed by the registrar at the end of the day. They knew he rarely read them. He signed away, and signed mine. It was done and he didn't even have to know. The rules were subverted and all was neatly filed away. I was agog. In my future work on barristers' clerks I was to recall this event.

Only one small problem marred my triumph. I hated law. It was boring, rule-bound, memory-based stuff that was remote from anything I was interested in. Nor could I entertain another change to something else. I was now lying uncomfortably on Procrustes' bed. I knew I was not going to become a lawyer.

Luck 1: Although law did not inspire me, including the idea of the practice of law, I did come to change my ideas about law in society. During another summer vacation a friend and I took a long and at times tedious trip from London overland to Athens, thence to Cairo where we resumed overland to Nairobi in Kenya. This meant crossing the Sahara Desert. Since we had booked nothing in advance except our return air ticket, we had to get whatever travel was available. We knew there was a train to Khartoum from the bottom of Egypt at Wadi Halfa. What we didn't expect was that the only available seats would be in fourth class. Fourth class on Sudan Railways was stark. Wooden benches with a luggage rack overhead; windows without glass; and in the centre of the carriage were two booths without doors that had holes in the floor that were our latrines. Drinking water was piped directly from the Nile into two large earthenware pots. The journey's official time was 30 hours but everyone knew it took more than twice that.

Five hundred yards outside the station the train made its first unscheduled stop for several hours before lumbering onwards. Leaving aside the majesty of the Sahara Desert, which we trundled over at about 20 mph, wherein we watched people leave the train and walk towards the horizon, we were aware that the train was filling up with people, lots of people. After the first day's travel the inside was completely full. People squeezed together on the benches while some squashed themselves into the luggage racks which were like hammocks. From then on all newcomers had to ride on the roof of the train.

Being on the roof was illegal, but if Sudan Railways had enforced the rule there would have been rebellion in the country. There were not sufficient trains to carry everyone in comfort. (Rather like the present day British railways.) One of the charming features of the journey was the train's efforts to accommodate the faithful. Every so often it would stop to allow prayers. Shortly after one prayer session and the train was gently sidling along, cries were heard and the train came to another halt. I looked out of the window and saw a man rolling around the ground in some pain. Officials were running towards him, one of whom looked like a policeman. The roof riders were shouting and gesticulating angrily at the group on the ground. Their reaction didn't make much sense and I asked my neighbour if he understood what was happening.

"He is being arrested for travelling illegally on the roof of the train." My neighbour wasn't smiling nor was he taking the rise out of me: he was serious. "They are shouting at him because he is holding up the train by having fallen off."

"But," I stammered, "if he's being arrested, why aren't those on roof?"

While it was illegal to ride on the roof, one only came to official notice when one did something out of the ordinary like falling off the roof. The miscreant had acted selfishly and carelessly without considering his fellow travellers. He should suffer the full rigours of the law. Seventy two hours after leaving Wadi Halfa, we pulled into Khartoum. But the law student was very confused.

Luck 2: Back at LSE facing my final year, I had to decide if I was going to become a lawyer when I graduated. If I wanted to then I had to take certain required courses to satisfy the Law Society and the Bar Council, the guardians of the legal profession. Among them was evidence and revenue. The prospect was awful. I decide against and in favour of fun that year. I signed up for jurisprudence, criminology, Marxist theories of law, and anthropology of law. The last two turned my head and made me realise that there was much more to law than conventionally taught. And legal anthropology showed me that the state was not the only enforcer of law. There were plenty of acephalous groups who were ordering their existences without its sanction.

By the end of my law degree I was covinced I didn't want to practise law, but I did like it. Not the normal, conventional types of law, but those realms on the borders of law. They were the ones I wanted to inhabit. Where secretaries subverted the university's bureaucracy and rancorous roof riders castigated their fallen brethren. Alice in Wonderland began to look more like a legal text than did Cheshire and Fifoot on Contract. Ambiguity, subversion, transgression, these were the true elements of law while rules paled in comparison.

I couldn't wait!


Sunday, December 25, 2005

Merry Christmas

It is a mild, sunny day in Wilton Way, East London--a perfect Christmas Day.

So Merry Christmas to you all and a Happy New Year!

Thursday, December 22, 2005

Becoming a British Citizen

I am becoming steeped in rites of passage of late. First, a friend was called to the bar, and second, I attended two friends' citizenship ceremony. I was intrigued by this since not long ago we Brits were considered subjects not citizens. It may have been part of Blair's attempt at "cool Britannia" to rebrand us as citizens without the implied feudalism of being a subject. Citizen sounds closer to consumer also, so we now we exercise choice. Of course, if you are a Muslim who emigrated to Britain and you fall afoul of the new terrorism laws, you might have that choice exercised for you in a nasty way when you are repatriated.

The US has an oath of allegiance and has carried out ceremonies for a long time. For Britain it's a new way of doing things. New Labour thought merely posting a certificate that said you are now British didn't do enough to instil a sense of Britishness and belonging. Now, once you have served your time and clocked up enough British flying hours, you get to take a test. Sample: when do British children normally receive their pocket money--monthly, weekly, after they've done their chores? The answer's obvious, isn't it? Weekly. What? You didn't know! Out you damn foreigner!

Once you've passed this gruelling exam, you are eligible for the ceremony. You are invited to the town hall. In my friends' case it was the Old Marylebone Town Hall, a fine, stout Victorian building (although it is truely an edifice!). The deputy superintendent registrar then talks you through the ritual. There are two groups. The god-fearing ones choose to swear by almighty god while the heathens merely affirm. Affirmation lacks resonance and authority somehow. Swearing before god means you could be struck by lightning at any moment.

After the rehearsal there's a short wait in which the lord mayor of Westminster should have ironed his rather creased blue and gold robe and also cleaned his grubby white gloves. We see this splendid vision when he enters and we are commanded to be upstanding for him. You can tell everyone's thinking why didn't he iron his robe? It is very badly creased. He briefly welcomes us to Westminster and latterly Britain. His priorities are to be seen talking to future voters. And indeed he reminds his audience that they will be able to vote and that they have a voting registration form in their welcome packs.

Then the deputy superintendent steps forward and asks the "swearers" to stand and each says his and her names. The "affirmers" do it next. They all stand together and read the oath after him.

I (name) swear by Almighty God that on becoming a British citizen, I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her Heirs and Successors, according to law.

I will give my loyalty to the United Kingdom and respect its rights and freedoms. I will uphold its democratic values. I will observe its laws faithfully and fulfil my duties and obligations as a British citizen.

There is a lot of twaddle in this. The UK doesn't have a constitution, at least not a proper one, so knowing one's rights and freedoms is tricky because they can change anytime. Duties and obligations means the government's passed a new law and god help you if you are Muslim or look like one. And do try hard not to look Brazilian; that really is dangerous.

I watched the nascent citizens read their cards. I suppose reading it aloud may have increased the significance. But that was brought home as each one stepped forward to receive their certificate from the mayor (and be photographed doing so--orders taken after the ceremony) and a glass inscribed with the City of Westminster's logo/brand/seal, depending what century you come from. Once everyone had passed go and collected their glasses, we were again commanded to be upstanding for the National Anthem (it needs capitals, doesn't it). Fortunately we only had to listen to it and not sing it, which would have been excruciating. Only the first verse was played as I think we were being broken in gently on this.

Then it was over. Gregg, Adrianne--our new citizens--and I sloped off to the pub where we talked about their Christmas trip to the Red Sea and their dream of returning to Australia before long because Britain was too cold for them.

Rule Britaaanniaaa!


Wednesday, December 14, 2005

Law Reform and Law Commissions

Law reform is not normally something I spend time on. In my field, of socio-legal studies, law is there and is interpreted through interactions. The rules are almost of secondary importance. But today I had to attend a meeting of the English Law Commission for a colleague who was unable to go.

The aim was for the Law Commission to explain what it had been doing to a group of academic representatives of learned societies. We were the Socio-Legal Studies Association, the Society of Legal Scholars, and the Association of Law Teachers. The idea was that we could explore possibilities of collaboration in the future.

Law Commissions are plentiful. Google law commissions and you will receive over 20 pages of hits, and lists over 35 law commissions. Their justification is to reform the law, which can be done in a number of ways. One is to remove obsolete laws; another is clear up anomalies. The real challenge for law commissions is to find areas of law that need a big overhaul. One that was mentioned today was insurance law, where the practice and the law have drifted apart.

It all sounds necessary and worthy. And when the English Law Commission was established in 1965, the merits of a commission were clear. Forty years on the merits remain clear, but the political case for the Law Commission has waned. One reason is the change in the institutions of government. Today the Cabinet Office, which is the prime minister's fiefdom, likes to plan strategy and conceive how delivery of policies will be effected. These have to be done quickly, that is, within electoral cycles. They have to be responsive to political needs. This is where the votes are. Consultants are born to this work, which is why so many McKinsey alumni are found in government.

Law commissions are generally staffed by judges, lawyers, and academics who live in the long term. To them law reform is something to be performed with care, attention to detail, consultation, and reflection. Government doesn't allow itself these luxuries anymore. Even when law commissions negotiate reform projects with government departments, who become their sponsors, realpolitik may intrude and render the project redundant. The type of law reform done, in the main, by the Law Commission doesn't attract votes. As important as the reform of trustees exemption clauses is, to the populace at large it's a dead letter. No government campaigns on that cause. Even if the Law Commission brings a reform project to fruition and drafts a model bill for legislation, there is little guarantee that government officials will be able to find time to slot it into the legislative timetable.

Nevertheless, law commissions through their work are able to build a "bank" of future potential legal reforms which governments can draw on as they want. Law commissions also have the benefit of being small and relatively inexpensive to run. And this is probably why their tasks haven't yet been outsourced to McKinsey. Law reform is a pedantic world, in the best sense of the word, and a necessary one. I hope it continues.

Sunday, December 11, 2005

Universities' Bizarre Behaviour

In a recent blog Acephalous of the University of California, Irvine wrote of his discovery of a couple having sex in his office. They abused him and threatened him with an harassment charge when he asked them to leave as he had a student coming to see him. Since then he has been in a Kafkaesque world with the university administration. Who is the culprit and who is the victim? We won't know since the university has made it a non-discloure matter.

Kafka is stalking the halls of the University of Westminster also. I wrote back in August that the university was evaluating professors in order to create a new pay system. Hay Management Consultants who are carrying out the exercise told me that they would be done by the end of August. I strongly suspect that would have been so if the university had been able to pull its act together. But here we are in mid-December and the university hasn't yet delivered all the necessary papers to Hay. And we don't know when the process will be completed...if at all...

My colleagues and I always had our suspicions that the administration of the university wouldn't handle this process to the best of its abilities. Interestingly, a survey on attitudes towards the university administration carried out in 2003 found that senior faculty were the most mistrustful. And that the personnel/"human resources" department, which is handling the job evaluation process, was found wanting. (Quite what a human resource is I'm unable to fathom. Even the Society for Human Resource Management didn't elucidate.) During early summer we met with the head of personnel and the vice-chancellor to express our concerns, namely what did it all mean, and above all ask for transparency in the process. It was assured. Five months on we await the results of the exercise.

When during September it was clear that the pace was neck and neck with the annual snail and slug race, we asked for regular updates from the personnel department. Oh well, one tries. If you have seen the movie, the Shawshank Redemption, you will appreciate this next bit. The hero becomes prison libarian and asks the state legislature for money to finance book purchases. Nothing happens so he writes each week to them asking for money. The state relents eventually and provides books. His buddy asks him if he'll now stop writing. No, he says, he will now write twice a week asking for more. Our request for regular updates was met with a similar blankness and I began to write to the personnel head each week asking for information. It always takes two emails to get him to respond, which is indicative of translucency rather than transparency. It seems there are a few job evaluations outstanding and rather than tell us the results of ours we have to wait.

This last is interesting because we discussed the fact that professors are different from each other and therefore it's not so much the group aspect as how each professor fares. On this basis there's no reason why individuals couldn't be given their results. But no, we wait for the stragglers.

What confidence there has been in the process has ebbed away. I continue to email personnel and forward their responses to my colleagues. How is it that an organization based on knowledge work could be so backward in its dealings with its most valuable "resources"? We, who are meant to be at the cutting edge of knowledge, teeter on the edge of an administrative mire. The numbers of emails I receive from my colleagues suggest that adversarialism is the dominant motif in relations between "senior management" and them. Of course there will always be a tension between administrative necessity and intellectual desire, and that can be creative. But when administrative suffocation becomes the norm with bloated bureaucracies, attempts to impose uniform "working practices" and so forth, it saps the creativity that makes universities the great institutions they can sometimes be.

In order for universities to be their best, they need a careful blend of collegiality and administration. This cannot be imposed by administrative fiat. It comes about by a creative melding of ideas from academics and administrators. My guess is that administrators now believe they are the university, whereas we know otherwise. Administration is there to service academics and students, not to demand fealty from us. That is perverse.

My experience of both American and English universities--as student and faculty--tells me that a good administration thinks about the university within society, its role and its creativity which will bring the other benefits of status and money. A small number of English universities have got the message; a greater number of American ones have known it for a long time. Is it any surprise that America now attracts the best students from the world. The English share of the market is declining in parts and may grow ever smaller. Even English undergraduates are beginning to consider American colleges for their first degrees, not just graduate work.

Using Fordist principles to run universities won't work. (And was it good for car manufacturers? Probably not.) Fortunately, my law school understands this but we stand apart from the university as a whole--we have a growing cohort of graduate students, our undergraduates are improving in quality, our faculty produce quality research and attract research grants. If the university is unable to adapt to the norms of collegiality, the results will be predictable.

The result? People leave. Already I have lost three colleagues from the law school to other universities: two to Aberdeen and one to Warwick. Other departments are suffering. It's the run up to the RAE and we should be keeping faculty not losing them. I'm not sounding optimistic, but we did so well in the last RAE, I'd hate it to be a one-shot wonder. I hope the university can see that.