The law of the steppe

Roman (“steppe law”) Putin

I recently wrote an article for the Scottish Review of Books in which I discussed what a Russian friend of mine calls “steppe law” (степное право). The essence of it is that, in a land without roads or courts, where the Khan is, there is the law. As he puts it, looking round the room with one hand shading his eyes: “Где Хан? Там закон”.

     In Russia today, the Khan is Mr Putin, so it came as no surprise to read in this morning’s Moscow Times a story with the headline: “Putin’s Relative Promises‘Special Protection’ for Firm’s Foreign Clients”. It seems that Mr Putin’s “first cousin, once removed” understands the realities of a steppe law system.  His website, at Putin Consulting), makes this revealing assertion:

“It is a well known fact that investors in Russia often face corruption, aggressive bureaucracy, extortion from local and municipal authorities, and the unfair games of competitors.”

     Roman Putin (for that is his name) goes on to say:

“The nature of business management in Russia implies close interaction with the state authorities. When treading uncharted waters, accurate guidance must be provided.  Therefore, it is vital to have a consultant who has influence within the state authorities, ranging from the Government and Office of the President to the leading banks and State Corporations.”

     That is a description of steppe law if ever I saw it.

     I wrote offering to correct the grammar in this website. I wonder if I will get a reply? I have in mind such solecisms as “treading uncharterd waters”. Only Christ claimed to be able to walk on, or “tread” water, unless this is taken to have the meaning applied to swimming, in which “treading water” means simply staying afloat without moving in any direction.
     On reflection, maybe that reading is the correct one and the site needs no improvement. In which case, we can all relax and get back into bed alongside Mr Oblomov, as it were.

Bishop Hoadley joins the chorus

Today’s Daily Telegraph has a story about judicial activism in England. It is worth reading. It quotes a three hundred-year old authority as saying, in different words, “Show me the judge and I’ll tell you the law.” This is the quote:

As Bishop Hoadley of Winchester remarked three centuries ago, “whoever interprets a law may justly be considered the lawgiver, not he who first wrote or spake it”.

There is little more to be said.

Let's start with something very funny, but very true, too, about judging

Peter Cook: “The judge”

Having provided details of my book (as below), I am now free to start.
     To kick things off in a jolly mood, I can do no better than to refer readers to what is in my view the funniest sketch ever performed about judging. The star is the late, great Peter Cook, and the subject matter the Jeremy Thorpe trial, in 1979, which featured a ludicrously biased summing up (or charge to the jury) by the judge, Mr Justice Cantley. 
     Mr Thorpe, who was then Leader of the Liberal Party, was on trial for attempted murder and conspiracy to murder, allegedly in order to cover up a homosexual affair. But he was an important member of the British establishment and the judge appeared to want to protect him. He described one of the witnesses for the prosecution, for example, as “a crook, an accomplished liar [and] a fraud”. This is, of course, not the way blindfold justice is supposed to operate, and Peter Cook’s sketch builds upon this promising foundation for satire. 
     A summary of the background can be found on Wikipedia, and readers interested in a fuller account of the trial, which caused a scandal at the time, can read it in Auberon Waugh’s book The Last Word: an Eye-Witness Account of the Thorpe Trial.

How the Lord President of the Court of Session in Edinburgh tried to interfere with my research for this book

The Justice Factory is the book the judges tried to ban. It lifts the veil on the character and outlook of the senior judges in Scotland, while explaining how they relate to the American and English traditions of judging. The reason for the attempted ban was that this is the first book to be published in the English-speaking world about the personality of judges and the practice of judging for which the primary source is the judges themselves. It is a novel attempt to see the rule of law and the threats to it from the point of view of those who have to defend it.

I reproduce below the memorandum which Lord Hamilton, then Lord President, circulated to the judges in Scotland. It is gratifying to note how many ignored him, which is why I have been able to publish this ground-breaking book on judicial thinking. In a more bureaucratic judiciary, such as the Scottish civil service appears to support, where judges are “accountable”, they would not have been able to act as they did. Imagine what would have happened to them in Russia today!

The Justice Factory: what the book contains

As the proud author, I am going to start this blog with a brief description of my book! It is available both print form from Amazon and in electronic form on Kindle. Readers interested in the English language might find something useful in it too because I have devoted quite a bit of space to considering the language of law.
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     Below I give a very brief outline of the contents of the book. To the right, is a picture of the cover.

I hope some of you will think it worth reading. If so, I look forward to hearing your reaction by email.

The Justice Factory: Content Guide

The Introduction explains the purpose of the book, which is to present a picture of the personality and character of the senior judges in Scotland while comparing them to judges in England and the United States. Where judges have scope for making independent decisions, the character of the judge is both important and, in a democracy, a subject of legitimate public concern.

Also explained is the attempt by the most senior judge in Scotland, the Lord President of the Court of Session, to prevent the author getting access to judges. He failed, with the result that this is the first book to be published in English which describers the business of judging, from both a practical and a jurisprudential point of view, in the words of the judges themselves.

Chapter One (“The Law as Guardian”) describes the best of judging, US v Nixon (1974) the “Watergate” case, in which a body of judges managed to defeat an attempt to frustrate the rule of law by the assertion of unlimited executive privilege on the part of the then President, Richard Nixon.

Chapter Two (“The Law as Theatre”) describes the worst of judging, telling the story of the Engineers’ Trial in Moscow in 1933, which was controlled by the Stalin in order to defeat the ends of justice and play politics with the liberty of six Britons and twenty Russians accused of “wrecking”.

Chapter Three (“The Law as Codified Custom”) tells the story of two Scottish cases of interest to the theme of the character of judges being relevant to the way in which judicial power is exercised in a humane jurisdiction. The first case concerns a disputed flower garden on a croft in Shetland, and the second one the presence of a lamb which was alleged to be infringing the rights of the millionaire owner of a 200,000-acre estate in the Highlands by nibbling the grass which he required for the deer he wanted to be able to hunt.

Chapter Four (“Judging as it Was”) tells the story of four interesting Scottish judges, Lord Braxfield in the eighteenth century (Scotland’s “hanging judge”), Lord Cockburn in the nineteenth (the first architectural conservator of Edinburgh), and, in the twentieth, Sheriff Bill Hook (how he reacted to being called “a fucking bastard” in his court) and Lord Murray (who believes that Britain’s nuclear deterrent is deployed unlawfully).

Chapter Five (“The Business of Judging”) describes in the words of the judges themselves what life is like on a day-to-day basis for judges in Scotland, the pressures they are under, both from the heavy work-load and a civil service which seems uncomfortable with an independent judiciary, and raises the fashionable cry of “accountability”, which would be in direct conflict with judicial independence.

Chapter Six (“Perception of Judging”) examines some common but inaccurate ideas of how the judiciary operates, taking one of Ian Rankin’s “Rebus” novels as the source for the popular attitude. This is set next to an author interview with Mr Rankin in which these prejudices are discussed, and more interviews with judges in which Inspector Rebus’s allegations are answered, and some questions raised about the honesty of the police.

Chapter Seven (“Judging and the Letter of the Law”) explores public misconceptions about legal certainty. Words mean what we take them to mean, and that must change over time otherwise life in an evolving world would grind to a halt. The example used is the shifting definition of “all men” in the US Declaration of Independence and Constitution over two centuries of social and political change.

Chapter Eight (“The Future of Judging”) explores the vexed question of how we choose our judges. If they are genuinely independent they cannot be controlled, so the choice of candidate is vital. How is this done in Scotland and the United States? What does the fu8ture hold for the Scottish Bench?

Chapter Nine (“Passing Sentence”) describes what happens to criminals when they go to jail, and wraps up the argument that it is the judges who, in practice, define the law—which is why the character of the men and women on the Bench is such an important issue.