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Jamieson, N --- "An Elegy (Long After Gray) on the Passing Gravity of Legal Scholarship" [2004] OtaLawRw 7; (2004) 10 Otago Law Review 623

An Elegy (Long After Gray) on the Passing Gravity of Legal Scholarship

Nigel Jamieson[*]

It could not have been the gracious Hazlitt, nor the universally popular Addison, nor yet the strongly sentimental Steele, but surely it were — to avail oneself of that now near obsolete but quasi-subjunctive verb in case it were not indeed the impressionistic Lamb himself who said —

If you had but five consolatory minutes between the desk and the bed, make much of them, and live a century in them, rather than turn slave to the Booksellers. They are Turks and Tartars, when they have poor authors at their beck. Hitherto you have been at arm’s length from them. Come not within their grasp.

Alas, like any academic who must publish or perish, I have come within the grasp of the Booksellers. What is “worse than all slavery” as my late friend Lamb puts it, “is to drudge [one’s] brains for pots of ale and breasts of mutton.” What might be worse than filling one’s paunch like Falstaff, which seems to be the prevailing mark of literary fame — vide the girth of Evelyn Waugh, the compulsive late-night eating of KingsleyAmis, and the self-confessed “yoghurt-filled, bin-bag body” of the writer Stephen Fry— is surely to be writing now like some skinny scrivener for legal fame — or could it be merely for university promotion? How now will this skinny scrivener fare at the TEC’s pricking of the South Seas Academic Bubble? Like the last of the Maccaronies, will he continue to “chirp and expand over a muffin” at his faculty’s morning tea? Or like some Vice- Chancellor’s Deputy, whose “intellect is of the shallowest order not reaching to a saw or proverb”, will he thus remain through ignorance impervious to insult? More to the case, should he imitate the great John Tipp — that world-renowned martinet of South Seas finance who, being so well endowed with the principle of self-preservation like all good accountants, would continue to share his cold mutton and pour out his punch for all who praised his fiddling long, long after the pricking of the Bubble?

Never mind the breasts of mutton or the pots of ale now far removed from making one’s fortune as a writer to the signet like Walter Scott, or even as a literary-minded Country Lawyer like Bellamy Partridge. For sheer physical corporation, it is hard if not impossible, without supplementing one’s royalties with a little tertiary teaching, to outweigh Alfred Hitchcock and Peter Jackson among the film-makers. As some skinny scrivener expresses his surprise on page five hundred and twelve in the sixth volume of the Supreme Court Law Review at the “puff from some law professor who tells him that some new law book will surely become a classic” we too are surprised that the same can be so without the law-book “soon becoming a major motion picture”. What serious writer, apart from any script-writer, grows fat on tax-cuts these days? Film royalties on the Twin Towers could not make long-deceased Tolkien any more of a trencherman. As in To Kill A Mockingbird and Fried Green Tomatoes, writers and film-makers rely on the legal system for their action, and on trial scenes to resolve their plots, but distribute little largesse in the practising lawyers’ direction. Legal writing offers no more assurance of posterity than of fortune. Tribonian’s fine turn of legal phrase is attributed to Justinian. Despite the Anecdota of Procopius, the efforts of the law professors Theophilus and Dorotheus remain relatively unrecognised. Edward I is credited with being the English Justinian, although most of his great statutes were drafted by his chief advisor, Robert Burnell. As in the cinema so also with writing legislation, the large face on the big screen takes over and ousts the legal text-writer. “This is my Bill”, boasts the Cabinet Minister who can barely read far less explain the Bill’s provisions

— although what the barely literate and perhaps tipsy Minister says before the House may now, as the result of Pepper v Hart, have enough force of law to alter the statute.

Readers (both in-house and out-of-house) may well remain innocent of knowing to whose corporate kingdom of writing they belong. So much, then, for finding one’s peers, far less applying peer review. Random House has now become so very random by incorporating Jonathan Cape, Chatto & Windus, and Stanley Paul. Reeds, Heinemann, and Methuen are now but alter egos of the Octopus Group. The Frankfurt Book Fair has proved so successful in substituting franks and sauerkraut for English breasts of mutton that German financiers now underwrite the biggest of both English and American publishing firms. So too “the curfew tolls the knell of parting day” for legal writing. The many several Turks who were once the little publishers of Law’s Great Empire have now joined corporate forces with the correspondingly many several Tartar Booksellers. Turks and Tartars together have turned themselves into Hugely Important Imperial Booksellers. The Oxford University Press will publish only on condition of the author assigning copyright. So too, Parliamentary Counsel have shrugged off their statutory responsibility for Parliamentary Acts by farming out some of their drafting and by passing off all of their professional responsibility for publication to the Private Sector. Even Government Printers have succumbed to the euphemism by which their Corporate Personality now masquerades as Private Enterprise. Anciently inscribed tombstones of legal learning to Dicey and Macaulay lie tilted and forgotten among the ravages of today’s marauding Turks and Tartars. As Lamb warned the Quaker bank clerk — the one who wrote devotional verse and who was thinking to close his ledger in favour of writing literature at Woodbridge — “Beware of Booksellers! Come not within their grasp! Those fellows hate us writers.” You know Woodbridge? It stands to Oxford, Cambridge, Harvard and Yale as Crown Office Row would stand to Christ’s Hospital had Lamb been educated in Dunedin. Washed by the Waters of Leith weaned from Dunedin’s seven surrounding hills, this place still maintains its own “classic green recesses” of Lamb’s Inner Temple. From this Antipodean source — however far removed from the Twickenham Naiades — our own most prestigious vehicle of South Seas’ Legal Learning (known to the World Wide Web as the Otago Law Review) spills into the South Pacific. Here in this South Seas sanctuary of scholarship, the

Inner Temple, Colebrook Cottage, and Mackery End are all rolled into one.

“D...!” as my passionately epigrammatic Lamb was fond of spluttering by way of monosyllabic interruption.

“Damn!” — or was it merely “Drat!” that my late lamented Lamb meant to say in his downing of the East India House? And since the Statute of Westminster Adoption Act 1947 should we not shout “Up the Kororareka Association!” and be toasting the Founding Fathers of the Port Nicholson Constitution? And yet in the same ebullient if not truculent tone of voice there are those who still ask where’s Woodbridge (as they ask where’s Dumbarton Oaks) in this world’s Grand Scheme of Things? For that matter, where’s the Privy Council?


Not “damned”, but “deuced” as my constantly card-playing but late lamented Lamb would euphemistically explain. I dare say Secretary of State Addison (who could never promulgate a dictate for his having got bogged down as a literary man with the style of its drafting) might answer any question as to the Privy’s future no less legislatively than any Scion of Marlborough. (When reminded while sitting on the toilet that His Lordship the Privy Seal was awaiting his attendance, Churchill’s reply was that he had his own Privy and could deal with only one shit at a time). Any Inspector-General under the Intelligence and Security Act of 1996 when asked whether we should invade Iraq or create a diversion by taking out the Privy Council is obviously obliged to choose the most financially feasible answer and opt for invading Iraq. Supreme Courts are never as cheap as going to war. Any Mistress Attorney-General or other Head of State caught short with the critical question as to what is going to happen to our own Offshore Privy will doubtless give a more politically correct but unmitigatingly dull reply. By creating any Supreme Court she will certainly not admit to causing any further constipation of our legal system.

“Su-su-su-preme Court?” stuttered Little Titibus, the stammering law stationer of Lincoln’s Inn.

In any case, what signifies a Supreme Court — whether a Supreme Court for academic excellence or for anything else beyond a Court of Appeal? In the Northern Hemisphere, Blair’s Britannic Majesty is as anxious to substitute a Supreme Court for the Lord High Chancellor as in the Southern Hemisphere we are to substitute the same for the Privy Council. It is difficult to know what to say. Who still recalls the Twickenham Naiades when the Aurora Borealis fills the southern sky off Bluff? Who recalls the perils of writing devotional verse in Woodbridge when the Beehive proposes to put down the Privy Council and set up a Supreme Court? The likely loss of a bird in the hand blinds the fowler to whatever birds remain in the bush. Yet to think of writing any legal commentary on the heightening of the Bench and the lowering of the Bar (occasioned by the demise of Queen’s Counsel in New Zealand), has little chance of success when done without any recollection of Tickenham or Woodbridge. It has as little chance of success as any South Seas Law Clerk has in commenting on the Lord High Chancellor’s demise without referring to His Lordship’s shoe-size as incorporated into our Supreme Court Ordinance of 1841. So too, the responsa prudentium carefully collected by Lawyer Boswell on behalf of Doctor Johnson (LLD) remain as much a part of our legal as of our literary heritage.

What is one to say? Churchillian repartee is deader these days than the pleadings of Chickpea Cicero. I could have said deader than Sheridan, deader than Lamb, deader than Shaw, and (with the collapse of communism) deader than Marx; but since Lamb (witness his hand) wrote his own epitaph, he could still be alive and kicking in these needlessly Cannibal Isles of the South Seas, and writing, although as yet without publishing in the South Pacific.

You may mistake this present legal writing, no less than every other commentary on Law’s Huge Empire for a spoof, were not the legal book market already all sewn up by countless spoofs pretending to be serious. As with Hart’s spoof on Ryle’s Concept of Mind, this presents difficulties. In the long run it is far, far riskier for the province of jurisprudence (as so far determined) to mistake Hart’s Concept of Law for being something far more serious than it really is than to mistake it for being something far less serious than it really is. Hart’s Concept is no different in kind than the trick pulled on philosophers by Wittgenstein with the pure poetry of his Tractatus or by Eliot on literature with the pure psychology of his Waste Land. To miss the trick is to miss the point — as one does when misled by peer reviews. Miss the point of a Swiftian Squib however — as those who mistook Carlyle’s Sartor Resartus for being the genuinely serious academic article — and you’ve brought your entire discipline into disrepute. Worse still, by failing to recognise the limits of your own subject — to distinguish when you’re having your leg pulled (however intellectually) from when you’re being seriously led astray

— you’ve exposed your own vulnerability. Just as Dicey discovered constitutional conventions to be an authorised source of law, some enterprising jurist may soon discover legal prions. Indeed, since Hohfeld has already reduced the legal system to legal atoms, none could take you seriously again until you’ve admitted your own false move in laughing off the possibility of legal prions

Business is business, however, especially in these days when law is all a business. The temptation is to put a brave editorial face on those who mistake the seriousness of this and all like legal writing for being a spoof. By all such intellectual risk-taking, however, I am ruined. As a constantly writing but relatively non-publishing academic I am ruined by a change of rules. No twist of fate can be more ironic for any lawyer than to be ruined by a change of rules. Today’s change of rules turns all serious scholarship into spoof, and all spoof into serious scholarship.

Talking of Tartars, of which my late friend Lamb had much to say, the new Tertiary Education Commissariat (previously passing itself off as a gramophone company with the name of TEAC) does not think to win ivory-towered converts by encouraging them to think and write but instead to publish and promote themselves. The old adage of “publish or perish” (at which serious scholars once sadly smiled and more knowingly than others quietly shook their heads) has been legislatively and bureaucratically overruled. Now it seems certain that scholarship will perish through publishing. The new Commissariat, at the cost of Five Hundred Clerks (in place of England’s Court of Chancery being satisfied to start off with Six) obviously does not think, nor care to think. Consequentially, like any bank clerk writing devotional verse in Woodbridge, (although now as an academic reduced to writing only legal doggerel in Dunedin) I am wholly ruined. Still talking of Tartars, TEC thinks to pass all academics under their Tartar Yoke of PBRF — Performance Based Research Funding. Each academic, on emerging from this Great Day of Academic Judgment is to be graded A, B, C, or else R

(which would surely have been D but for the Commissariat’s lapse in literacy). Unlike the old peine forte et dure, this process of Passing Under the Yoke is based on a system of rewards rather than of punishments (although certain Crown Prosecutors might thereby be reminded of Crossing the Line). The present reward system is modeled on Vladimir Voinovich’s performance based system of rewarding writers with fur hats. The best writers get hats made of sleek reindeer fawn, the worst get fluffy tomcat. (Peine forte et dure would have been worse for writers, as where Crown Prosecutors Crossing the Line are punished by being made to wear plastic boobs). The set text for the Tertiary Commissariat’s Performance Based reward system is Doctor Seuss’s Cat in the Hat. On first assessment I got buck rabbit. Lamb got marmot. Swift got skunk. Of course, Voinovich was not only expelled from the Writers’ Union but was also thrown out of the Soviet Union — still wearing his old tomcat hat.

For the benefit of all academic writers, let me quote the revered words of

Karetnikov, Secretary of the Writers’ Union:

You know as well as I do that you don’t need a hat.

That you can buy any hat you like for a hundred or two

off some fence. No, it’s not a hat you’re after. You want

to worm your way into a better category, a higher class. The new TEC, bringing a new technology to the quantification of excellence, is much too modest to aspire even to the name of TECH. The half-pi TEC, although obviously opposed to all notions of education conceived of by the ancients, and opposed to all standards of quality apart from the most mechanical, quantitative and physical of measurements, purports to reward and uphold excellence. Here is an instance of what Malcolm Arnold, the Oxbridge Professor of Poetry whose former role as Lay Inspector of Schools (deadening as he described it) would call Philistinianism. In fact, the TEC, as it likes to offend Orwell by calling itself by a Soviet-style acronym, is caught in a bind. It has brought Grubb Street onto campus and played right into the hands of big business in the hands of not so academic publishing. This country’s biggest stakeholder in the publishing business — the TEC — no doubt now puts its money where its heart is and invests in what were once known as the printing, publishing and book-selling trades. The resulting conflict against the clerisy — to quote from Geoffrey de Q. Walker’s ‘s seminal Rule of Law —has been fought and won. It has been fought and won by bureaucracy in prioritising the book-selling business over the writers and thinkers. The TEC

has obviously become the Bookseller’s biggest stakeholder — unless it be the other way around that Booksellers have become the TEC’s biggest stakeholder. Who’s who is nigh impossible to determine in the corporate arena. As Michael Taggart writes in his Gardens or Graveyards of Scholarship, “publishers know that ‘big names’ and high name-recognition sell law books”. (For saying so, Taggart is bound to be asked to hand in his sable and to join Voinovich in wearing tomcat). Never before have so many big-named Tartars and big-hatted Turks joined forces in support, superficial though it may be, of education. If it can be of any comfort, I am not at all alone in being ruined by having low name- recognition. Those small names who don’t write for, and publish to popular acclaim, who don’t play to one’s presumed peers far less than to the gallery, or who cock a snook at political correctness — will all go down together. Of course the mediocrities of the moment, never having read their Leacock and their Leys, far less than their Hazlitt and their Lamb, will not only survive, but shine, shine, shine in their own as well as each other’s greatly superannuated glory. Their every book and paper published thus becomes their own Festchriften.

The system may nevertheless prove to be a great success. Think of what it means in terms of academic innovation to have quantified excellence — for so long regarded by scholars as being incommensurably and indefinably non- quantifiable! Thence, no holds remain barred from quantifying seriousness, from quantifying humour, and from quantifying sexual arousal as well as sexual fulfilment — and all done by means of fur hats!

QED the Five Hundred Clerks of TEC will shout or would have shouted had they but reached Euclid’s pons asinorum and were not to mistake QED for a competitor with TEC as their own source of ale and mutton (or, as might be the case for Five Hundred Clerks, merely tea and muffins). Would that I had no cause to be sad in the midst of such high-flying educational celebration, but to share their Clerical Concept of Excellence as being something which by its own nature is not bound to be over the top but can be capable of mathematical mensuration.

Well, how could I, so much a broken man, pretend to remain rabbiting around like a dog in the manger by virtue of this present publication and not share a little something of the winners’ broken victuals — a few charitable crumbs reached perhaps by way of this or that fortuitous publication, a largesse to someone fallen on hard times, as received from some rich publisher’s but never writer’s table. Besides, like every jongleur (which by being now an English term needs no italics), I have a song to sing, a tale to tell — a tale which should amuse the table.

Alas, that song to sing, that tale to tell must wait another time. At least a year ago the tale was told, the song was sung to the editor of the second-most prestigious law journal in the South Seas, but of which song and of which tale was heard no more. It might be more acceptable to an author’s pride to think this tale had been sunk on its voyage out to publication, but neither hard-copied correspondence nor e-mail as to its whereabouts or status in the publishing stakes can elicit an editorial reply. Even that ultimate expression of editorial courtesy

— the one which every writer most fears by way of receiving a rejection slip

— would enable the tale to be told elsewhere. Of course, the hold of the publisher

in terrorem over the author is that until receiving that damned rejection slip, the author dare not submit the contribution elsewhere for fear of appearing in two places at once. Caput the contribution. Still, it’s not as if I’m new to this second- most prestigious law journal in the South Pacific. Like that Saintly Sister in Sister Act who survived five Popes, I’ve survived more than Five Editors, and most certainly intend to survive the Next Five. For which saying I must exchange my more genteel rabbit for a satirist’s hard hat.

There is a pit — or t’ma as the Tartars call it described by that perpetual scribbler and wisest fool in Christendom otherwise known to his face as the Very First James of England (although Not the Last of a Half-Dozen and More Rulers of the Same Right Royal Name in Scotland) in his most majestic tirade, self- published in 1604, entitled A Counterblast to Tobacco. (For better instruction than this Right Royal Tirade, I bid you read my own Ode to Tobacco, which signifying the best of literature, is really quite straightforward.) Before you laugh off this Right Royal Tirade for being self-published, (or the complexity of my late friend Lamb’s literary text for lack of scholarly footnotes), remember that none who scoffs at vanity publishing could ever take royal commissions, court reports, or parliamentary papers seriously. The vanity of self-publishing writers, from Thoreau, Whitman, Balzac, Kipling, Galsworthy, Paine, Twain, Burns and Joyce is beyond all publishing belief! That confirmed do-it-yourselfer William Blake mixed his own ink, printed his own pages, and had his wife sew the bindings!

Meanwhile, back to the pit-face of unselfish, or what publishers call real publishing. This pit — the opposite of those holes at the poles that Plato so enthusiastically describes in his Phaedo — is that “stinking, Stygian, fiery pit that is bottomless”. It is into this pit that is dropped all the papers, articles and dead letters of writers whom publishers never answer.

Having survived the Stygian stench of trying to get letters answered from Voinovich’s Writer’s Union, I prefer to remain the optimist I’ve always been for the South Seas. Were it not for Lamb’s advice to the writing divine of Woodbridge, I might trouble myself to bother the publishers of this second-most prestigious South Seas Law Journal. Perhaps my epoch-breaking paper on Reconstituting the Courts is already being implemented by the Law Commission. Just as Kipling discovered his own unanswered letters being sold off for a quid apiece, perhaps it is also a sign of renown to have one’s correspondence remain unanswered. Looking on the bright side of things there is always the possibility the publishers will find their editor sitting on his privy like Winston Churchill and unable to deal simultaneously with more than his own contribution. It is always possible that instead of any dead-letter long-drop having received resource consent for the South Pacific, the second-most prestigious law journal of the South Seas may have simply ceased to exist. On account of corporate head-hunting these are the Cannibal, or as they are otherwise, on account of their earthquakes, known to be the Shaky Isles. Heritage values even apparently as fixed and immutable as the country’s once Supreme Court have already been known to come, go, and periodically announce their return from the Gulags. Stalin’s Supreme Soviet had similar ways of reincarnating non-persons as persons. Whether coming or going, none can vouch for the idea

of Supreme Court Judges being more than buried alive in the political system.

“Publish for promotion!” as a Soviet-inspired slogan is not so far removed from “Publish and be damned!” as TEC’s true motto for individual demise. Let me quote from Kaiser & Kaiser’s Russia from the Inside as to the formerly Soviet situation. “Peer selection and then peer pressure,” say Kaiser & Kaiser, “are meant to maintain Party discipline”. There you have TEC’s policy in a nutshell

— maintaining Party discipline.

Publication, especially peer-reviewed publication, has precious little to do with long lasting scholarship. Dame Augusta Wallace, a retired District Court Judge, has recently gone on television to draw our attention to how many children commit crimes because of peer pressure. She asks us to help this country to say no to peer pressure. Academic peer-review is only an adult (and thus far more insidious) form of peer-pressure. So let’s support Dame Augusta Wallace! As professors, let’s say no to peer-review as we would to every other form of peer-pressure!

Peer-review, as everyone in academic circles knows, is quaintly fallible. There’s many more than Galileo that can vouch for their own solitary view of a round world, or for the existence of genes (or more recently of prions) having been scorned out of court by their peers. Didn’t Newton peer-review Liebnitz into an early grave? On the other hand, Bacquerel, Ballet, and Broca gave their peer- reviewed support to Blondlot’s delusion of N-rays. Sir Cyril Burt’s mischievous invention of experimental data never held up or inconvenienced the British Government’s peer-reviewed 11+ examination. Perhaps someone should peer- review TEC’s Five Hundred Clerks conscientiously sitting on their production- line privies to let them know that true pioneers have few peers...

Here I will leave off — notwithstanding a subject which so fills my heart with tears, my mind with contumelies, and my belt of truth burdened with the scalps of superficial educationalists, that I am completely disengaged from pure research. Alas, since I can only talk and write as I can now only think of nothing other than SC, TEC and PBRF, here will I leave off lest I fill up this paper with what my late lamented Lamb calls “even meaner matter”.


[* ]Senior Lecturer in Law, University of Otago.

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