Law Books Everyone Should Read

The criteria I have used for inclusion on this list are as follows. First universalism. These are works people in all times and places would benefit from reading, ruling out works specific to, say, the English criminal justice system. Second I found each of them immensely helpful in learning how to be a lawyer. I have made no concessions for accessibility, some are easier to read than others. I wouldn’t recommend that a student about to begin on a first year undergraduate degree read all of them before starting.

 

All of the authors on this list are dead white men (with the possible exception of Gaius who may not have been white). That is, I think, an inevitable product of the exclusion of women and others from the discipline in the past.

 

 HLA Hart, The Concept of Law

Written as a book for students in the Clarendon law series, this is the single most important work of legal theory of the last century. My only quibble is with the title. It sets out an account of the conditions necessary for us to identify posited law, within any society. Other conceptions of the word “law” are in use, and are no less correct.

 

When I studied law several decades ago, the most important critic of Hart was Ronald Dworkin, who in a series of books and articles sought, amongst other things, to tear down the wall Hart built between the fact of the posited law as it is, and the separate question of what justice requires. My view, for what it is worth, is that Hart has proven the clear victor in this dispute. There is more to be gained from reading Lon Fuller’s The Morality of Law  as a response.

 

(Buy a cheap second hand copy here, there is no point buying the third edition instead of the second.)

 

The Institutes of Gaius

Strictly speaking, this is the only ‘law’ book on this list (conceived as an account of a body of posited rules).  It is an introductory law text for students written in the second century AD. Most things (art, science, philosophy etc) began with the Greeks. That is not true of law, where the Romans were the true originators.

 

Once upon a time, all students would have studied Roman law, but at least in England this practice has nearly died out. It is very useful for everyone to have some familiarity with a legal system different from their own. This enables us to break free from the rigid mindset that the law as it is is inevitable and just. For common lawyers, it is important to have some knowledge of civilian law (and vice versa) as the comparisons within the respective traditions are less fundamental.

 

Roman law is a useful comparator as it is (inevitably) less detailed than a modern legal system, enabling us to see its skeleton. Start with Gaius, and you will have a reasonable grasp of how any legal system has to be structured.

 

(Free to read in English here.)

 

JS Mill, On Liberty

A classic text on the proper limits of law. Although I was greatly influenced (and convinced) by Mill’s Harm Principle when younger, I am now certain that Mill’s arguments are often both weak, and contingent on facts about the world and human behaviour that are never proven. Regular readers of this blog will have realised that I am no utilitarian, and Mill’s work was, in my view, hamstrung by his commitment to this (ridiculous) intellectual tradition.

 

That said, Mill’s instincts were good, and there is benefit from considering why his arguments (largely) fail and what else might justify the kinds of conclusions he wished to reach.

 

(Available for free.)

 

I Kant, The Doctrine of Right

Which leads us to by far the worst written, most frustrating, and profound book on this list. Kant’s The Doctrine of Right is a difficult work. It is probably best to read the Mary Gregor translation, available here, rather than one of the creaky nineteenth century versions available online.  Part 1 is the section to read (and re-read, and re-re-read.) Most philosophers neither know much about law nor are interested in the kinds of questions lawyers need answering. Kant was an exception. (The Groundwork to the Metaphysics of Morals concerns quite separate issues.)

 

WN Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning

Technically not a book but two articles in the Yale Law Journal from before the first World War (although subsequently collected as a book). Hohfeld died in the influenza epidemic of 1918 at the age of 39. His work was not wholly original, most of the distinctions he sought to draw had already been made by the New Zealander John Salmond. But, it is to say the least unusual for the work of any lawyer to be worth reading a century after his death, law books usually having the shelf life of a car manual. The distinctions he drew are basic and important, and avoid intellectual confusion.

 

If I had the choice of making the members of the UK Supreme Court read one work that would halp them to avoid error, it would be this.

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The Supreme Court as Legislature

Marriage and Money

Last week the UK Supreme Court handed down two judgments on the same day, one of which was important.

 

The unimportant case was the wholly unsurprising decision in Owens v Owens The Supreme Court confirmed that the Matrimonial Causes Act 1973 does indeed say what it says, and that a divorce is not available simply on the basis that the marriage has broken down.

 

That no fault divorce is not available without a separation period of two years appears draconian and wrong, but is neither news nor a major social problem.  People such as the bloody-minded Mr Owens, who will contest a divorce to the bitter end, are fortunately few in number. Absent a dispute as to assets or child custody, and changing the rules on no fault divorce will not eliminate those, most divorcing couples will nowadays lie on the form, tick the box saying they have been separated for two or more years, and be able to go their separate ways. That the law requires this is silly, but not to the same degree as the pre-war world of requiring one party to be found in flagrante in a hotel in Brighton with a third party.

 

A far larger social problem is cost, not the silly rule. The divorce court fee is £550. This is in addition to the fees of solicitors (which in a non-contested case may be low if you shop around online.) This fee covers little more administration than the sending of a couple of letters. For the vast majority of people, and especially the poor, this is a far higher barrier to divorce. Many couples must choose to stay married for no better reason than that they cannot afford to pay not to be. As so often, in the real world it is the money that matters, not the rules.

 

The important ignored decision was Prudential Insurance Company Ltd v HMRCThis was significant for three reasons. First the decision was a surprise and will save the Revenue more than £4 billion (see paragraph 36 , this is probably a conservative figure because of the broad basis of the decision of the court). Second it is important within the technical and boring area of the common  law of restitution, changing the position from that which was previously understood. Third the Supreme Court overturned the decision of the House of Lords from ten years previously, Sempra Metals v IRC. This third aspect is the constitutionally significant one.

 

Precedent

As is well known, up until 1966 the UK’s ultimate appellate court, until 2009 called the Judicial House of Lords, could not overturn its own decisions. So, however wrong one of its own decisions was, the House of Lords, and lower courts, was bound to follow it. The justification for this position was that it increased certainty, and the legislature could always intervene. However, this was never very satisfactory. The distracted legislature enacts very few laws (although nearly twice as many per annum thirty to forty years ago as now) and does not fulfill this corrective role in any meaningful way. This led to the oddity that is the Practice Statement of 1966. This was surprising not for what it did, it had long been thought by many that the House of Lords should be free to overrule itself, but because the change was made not through the decision in a case, where it could form part of its ratio and hence the law, but by the court simply announcing it. Since then our ultimate appellate court has overturned its own earlier decisions by relying on the Practice Statement on many occasions (over two dozen times on my count).

 

However, the Practice Statement makes it clear that the court will remain mindful of the need for certainty  and “the danger of disturbing retrospectively the basis on which contracts, settlement of property, and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.” So, the House of Lords in Cambridge Water Co Ltd v East Counties Leather Ltd refused to overturn the ‘rule in Rylands v Fletcher’ not because it was correct, but because such a radical change would be, according to Lord Hoffmann, “inconsistent with the judicial function.” In Chartbrook v Persimmon the same judge refused to overturn the rule excluding pre-contractual negotiations for purposes of construction of a contract not on the basis that he thought the rule a good one, but rather because the Practice Statement was only supposed to be invoked in the small number of cases where the court was confident that the earlier decision was “impeding the proper development of the law or to have led to results which were unjust or contrary to public policy.”

 

Dangerour Radicals?

What is surprising about Prudential Insurance Company Ltd v HMRC is not that the court overturned a decision of relatively recent vintage, that has happened before. Rather they did so first without having been asked to do so by the successful party, second by adopting an argument that was not made to them (although it might be said to have been a logical extension of an argument that was made), and third without invoking the Practice Statement. (For those interested in the finer points of the dust dry law of restitution, the relevant arguments of counsel for the Revenue are available online temporarily here from 1 hr 44min and here  from 1 hr 29 min).

 

The court sought to justify their departure from the earlier authority on the basis that subsequent decisions had undermined it. So, it has now become clear that the CJEU was not as bothered about what the position was as a matter of UK domestic law as was once thought, it is now clear that the legislature is not going to intervene to correct the mess that is the English law of limitation, and some tangentially related subsequent cases don’t fit happily with the thrust of the reasoning in Sempra (see Prudential at [55]-[67]). However, the reason for overturning the earlier decision is, at root, that it was wrong and always was (see [68]-[80]).

 

At ultimate appellate court level there is a tension between acting as a law maker, and acting as a court so as to do procedural justice for the parties before them. The court’s role as law maker is constrained by the cases that come before it. It doesn’t matter how appalling and wrong an earlier decision may be, unless a case comes before them where it is challenged it will remain the positive law. So the (apparent) rule that a husband could not rape his wife was only authoritatively overturned in 1991, when a case finally came before the court. It is hard to believe the rule could have survived if ever challenged decades earlier. So, the temptation is to do the just thing, when the opportunity arises even if the litigants don’t ask you to be so bold.

 

In retrospect, the Revenue were too cautious in failing to challenge the earlier erroneous decision. This must by now have cost the UK a sum of money the mind cannot comfortably contemplate, enough to pay for all divorces for decades. In now overturning the earlier decision, the court has taken another step towards being a subordinate legislature, rather than an ultimate appellate court.