Early years and the War (1926 – 1948)

John Anthony “Tony” Jolowicz was born in London on 11^th April 1926. His father was a lecturer of Roman Law and Jurisprudence at University College London, while simultaneously holding a Readership in Roman Law at All Souls College Oxford, where he commuted once a week. This propensity for hard work was inherited by his son. It would propel him also into an illustrious career of scholarship and legal practice.

A trait that was evident throughout our conversations was a straightforward appraisal of the debts he owed to the people who have assisted and guided him through his career, and he made no secret of the help that he received from various mentors. Many of these were friends of his father, who by the time Tony was embarking upon his own legal career, was a senior and highly regarded academic at Oxford University. To understand Tony's early career, it was necessary therefore to talk about his family background, and in particular his father's academic legacy.

The Jolowicz “clan” as Professor Jolowicz called it, emanated from what is now Poland when his grandfather (who was a silk merchant) emigrated to England (via France) in about 1865. He settled in London and his three children were all born in Maida Vale. The youngest was Professor Jolowicz's father Herbert FelixFootnote ², while his aunt was Marguerite (more of her anon). Herbert was a very bright boy who did well at St Paul's School, and progressed to Trinity College Cambridge (1908) where his earlier classics training eventually led him into Roman Law – and ultimately the Regius Chair of Civil Law at Oxford (1948). Apparently, he used to claim that Justinian was the founder of the family, but, as Professor Jolowicz recounted, there were several near-misses on the way.

In late 1913, Herbert, having acquired a first class degree, moved to Germany to further his studies at the two great Roman Law centres – Heidelberg and Freiburg, where he studied under Ludwig Mitteis and Otto Lenel, respectively. “His German was extremely good of course and people apparently showed some surprise to see one of the lecture audience writing notes in English from the German lecturer.”

With the benefit of hindsight this might not have seemed the most propitious moment to have moved in this direction, but at the time, Tony's father did not appreciate the dangers. These were compounded in 1914 by his taking a walking holiday in the Black Forest with no access to newspapers or radio. When he emerged again into the outside world it was 1^st August, and the day France and Russia declared war on Germany. Herbert hastily returned home, and arrived in time for Britain also to declare war on 4^th August. He volunteered for the Inns of Court Regiment Officer Training Corps, and in 1915 was commissioned into The Bedfordshire Regiment.

A second close shave occurred nearly a year later when his unit was sent to Gallipoli in 1915. Fortunately for Herbert, fate intervened. After a short time he was despatched south to Cairo to replace a certain Mr Price, an intelligence officer who had become sick with German measles, and for whom a junior officer with good German was required. Tony's father fitted the bill. A week later his unit in Gallipoli suffered severe casualties, and many years later Mr Price was introduced to Tony as the man to whom they both owed their lives.

Although Herbert Jolowicz was later posted on to France in the intelligence service, his good fortune persisted and he survived the war to be called to the Bar (Inner Temple) in 1919. Soon after he became All Souls Reader (1920) and then, concurrently, a lecturer at UCL (1924). Further military adventures awaited Tony's father, but in the interim his own story began.

Tony grew up in London where his father had been appointed Professor of Roman Law at University College in 1931 when Tony was five years old. By this time he had already got to know the son of another eminent legal scholar with roots in what is now Poland: Elihu LauterpachtFootnote ³. Eli's father HerschFootnote ⁴ was a recently-arrived refugee from Galicia who had completed a doctoral thesis at the London School of Economics, where he had just been made a lecturer in International Law. The families became friends and Tony got to know Eli: “Eli is the only extant human being whom I have known longer than anybody else, including my own sister…I have known him almost since birth…We have known each other forever”.

Like all boys of his generation in the UK, Tony Jolowicz's youth and early adulthood were strongly affected by the Second World War. When the war broke out the Jolowicz family was on their summer holiday at Southwold. They returned home immediately and initially, the effects were the sort of disruptions that schoolboys find intriguing. In late 1939, in anticipation of German bombing, Tony's prep school (The Hall SchoolFootnote ⁵) was evacuated out of London to a highly unsuitable stately homeFootnote ⁶. This impressive building in rural Buckinghamshire had been graced eighty years earlier by Florence Nightingale whose sister (Parthenope) was the wife of the then owner Earl Harry Calvert Varney. The most impressive characteristic of their temporary accommodation that the thirteen year old recalled was the central, grand marble stairway. It was, needless to say, out of bounds to the boys.

Tony had only one term at Claydon House before the “Phoney War” of 1939–40 lulled the headmaster into a sense of false security, and he decamped the boys back into London, just, as Tony pithily put it, “in time for the Blitz”Footnote ⁷. At this point, Tony himself was despatched to Oundle boys public schoolFootnote ⁸ (Northamptonshire), where he spent the war years until 1944 (when he was 18).

During this period, Professor Herbert Jolowicz was involved in military duties for the second time, and because of his age (he was nearly 50) and his language skills he was again involved in intelligence and enemy radio transmissions. When I asked Professor Jolowicz what this might have entailed, he said that his father spoke little about it, but that it was somehow involved with the famous Enigma programme at Bletchley. Later, his lecturing skills were also put to good use and he became an instructor at an intelligence school in north London (Netherhall Gardens). Herbert left the forces in 1945 and returned to his professorial duties at UCL, and Tony comically recalled that his father had been so indoctrinated by his war years with the need for security that it was with difficulty that he stopped himself saying at the beginning of a lecture at UCL “Now, you must remember that it is of the utmost importance that you do not mention a word about these lectures once you have left this room.”

As soon as his schooling finished in 1944, Tony was himself drawn into military circles, and went before a War Office Selection Board, which sent him to Oxford to attend a six month course. He was allocated to Brasenose College, but because the Army had taken over the College, he was physically housed in Christchurch. He told me that to this day he still receives all the Brasenose correspondence as one of their undergraduate members. His completion of the course almost coincided with the end of the war in Europe (May 1945), but nevertheless he was despatched to Egypt where he was put in charge of a transport unit that was mainly staffed by local personnel, with all the difficulties this entailed.

This, of course was his father's old stamping ground from WWI, and as soon as he was demobbed, Herbert and his wife Ruby came out to see their son in Egypt. Tony recalled this as a surreal episode, during which his parents stayed in the grand old colonial hotel Shepherds. The family took a river-boat cruise on the Nile to Luxor, which turned into a genteel comedy of errors as every so often the vessel serenely grounded on sandbanks and was poled off by the crew. The important thing was that drinks were hardly disturbed in their glasses while these various navigational hazards were negotiated.

Undergraduate to weekender (1948–1955)

When finally demobilised in 1948, Tony Jolowicz returned to a country trying to restore normality. The day after he arrived back in London the family went to see the Vienna State Orchestra, and celebrated with supper at the famous Savoy Hotel. Tony's sister noted in her history of her brother's life (compiled for his 80^th birthday and which he kindly allowed me to copy for the ESA), that rain leaked through the roof even of this prestigious venue.

However, after six years of war, it was not just roofs that needed repairing. Tony, along with his fellow returnees, had seen much of the world outside Trinity's mellow limestone cocoon. Although he was a good deal younger than most of the ex-servicemen, many of whom had been at war since 1939, their collective outlook on life was much different to modern students. This maturity beyond their years manifested itself in what Professor Jolowicz described as a very serious, selfish concern with their future, and how they were to make a life and a living in what was still a very turbulent and uncertain world. As he put it “we didn't have social consciences, as a lot of young people do now.” There was also, after years of military discipline, an intolerance of some of the “idiotic rules, like wearing gowns after dark”. This clash of attitudes caused friction with the more fastidious university staff who “didn't really know how to handle us.” What of course Tony was experiencing was the unstoppable transition, wrought by massive social disruption, untold tragedies and much physical danger, from a deferential pre-war society to a new era in which, at least in theory, lip service was paid to a meritocracy.

To illustrate his point, Professor Jolowicz quoted an incident that affected many students. On Poppy DayFootnote ⁹ 1948, an explosion occurred at the traffic island outside the Senate House which put at risk the glass in Kings College Chapel. The following day, the Vice-Chancellor, a noted pacifist, Canon Charles Raven (who was Regius Professor of Divinity and Master of Christ's College), in a public comment attributed the explosion to a “hooligan element of the British Army of the Rhine”. This created uproar because, as Professor Jolowicz pointed out, many of these men had fought in the Battle of El Alamein, and across Europe, and they became “livid with rage” and nearly rioted. Canon Raven had to back down, but it is a nice reminder of the social turmoil caused by the war.

One consequence of his single minded existence at college in that unusual, restrictive, era, was that Professor Jolowicz claims not to have made the most of his time at Cambridge. He said his life revolved more than he wished it had around three interests only: law, rowing and music, and restricted his circle of friends to “oarsmen, lawyers or musicians”, although membership of the Boat Club also entailed helping to organise the annual May Ball. Nevertheless, one of the oarsmen had an important influence on his life. Bill WadeFootnote ¹⁰, who had been appointed Assistant Lecturer two years before Tony went up to Trinity, became a great friend and rowing companion. He said that, along with Professor Jack HamsonFootnote ¹¹, Wade was one of the two people most responsible for his career. As for his music, Tony played the clarinet in the college orchestra, but although he still had his instruments upstairs in Barrington, he hadn't touched them “for donkeys' years”.

It is also worth recalling that several of the Faculty staff Tony knew had also experienced circumstances of which modern academics can have no conception – the most extreme being Jack Hamson himself, who, having been captured on Crete in 1941, had spent many years in a German prisoner of war camp. Professor Jolowicz recalled “Jack wrote a remarkable book when he was in prison …. . somebody discovered it and it was brought out by the College, Tony Weir Footnote ¹²principally acted as editor, and the book was called Liber in Vinculis Footnote ¹³. It was all done on little scraps of paper because he wasn't supposed to write things down…I've got a copy somewhere”.

Professor Jolowicz has nothing but praise for Hamson to “whom I owe more than anybody else I think for taking care of me..”, but his life became more complicated when he was persuaded by his mentor to do research on the subject of the history of vicarious liability and master and servant, and to present it for a Trinity prize fellowship. Much to Tony's surprise he was successful (1952), but when he suggested to Hamson that he should register with the Board of Graduate Studies for a PhD on this same work “…on the cheap.”. Hamson's reply was ‘Certainly not, no gentleman takes a PhD, that's for scientists and foreigners.’

An intriguing recollection from Professor Jolowicz's undergraduate days was his impression of the charismatic influence of Hersch Lauterpacht, the legendary international lawyer who was then the Whewell Professor. He described Lauterpacht's lectures as “outstandingly good”. This was partly due to the meticulous way Professor Lauterpacht would spend the forenoon preparing his material so that he was able to deliver his lecture at 12 o'clock in an apparently effortless fashion. Such was the impression left by Hersch Lauterpacht's presentations that Tony, along with many of his fellow undergraduates, initially were fired up to be international lawyers. Some of these (for example Derek Bowett and Robbie Jennings) went on to sparkling careers of their own in the subject, but for Tony the gloss soon wore off and he became “quite sceptical about international law”. When pressed, he conceded that Lauterpacht could be very persuasive, but that for his part, he “had difficulty with the idea of a law which is dependent upon consent,” and also, he is not one who has much time for the concept of “the state”. Finally, as someone who foresaw a career in legal practice, he could envisage no future in it.

Professor Jolowicz emphasised, however, that Hersch Lauterpacht's ability to influence students was not solely grounded in his lecturing technique, and he emphasised this by an anecdote in which he contrasted Professor Lauterpacht's very personal approach to that of Professor Emlyn WadeFootnote ¹⁴. He described Wade as a “nice man” who was a close friend of Tony's father, and Tony and his sister “were pushed around in our prams along with his [Wade's] eldest daughter, who was more or less my exact age.” One day, Wade called Tony into his room in the Squire Law Library (when it was still situated in the Old Schools building: this must have been around 1948–49) and said, “Tell me… .why is it that when an undergraduate goes to see Hersch Lauterpacht, within a couple of minutes he is more or less sitting on Hersch's desk and swinging his legs and when they come to see me, they stand to attention?” Simply, “Hersch had a way that could put you at your ease in no time flat.”

Teaching the “Cambridge Way”

After graduating in 1950, Tony spent nearly five years practising law in London, and also simultaneously commuting between both Trinity College Cambridge and University College Oxford as a weekender. These were tutors employed by both universities to supplement their war-depleted teaching staff and to cope with the huge influxes of post-war students. This was a gruelling schedule, and eventually Tony realised he would have to chose from his options. The Trinity Fellowship drew him towards Cambridge and when Hamson organised an assistant lectureship for him in 1955 (for which he had not even applied), his priorities became clear. Nevertheless, for a while he continued with his legal practice in London, but even this proved too conflicting – it was unfair on the students to postpone teaching because of case work, but equally the pressure from clients was not sympathetic to teaching commitments. His eventual choice of the academic path was primarily down to his love of teaching and the interaction with students, and a realisation that “I could do this thing called law.”

In financial terms this decision was a significant sacrifice, and he gave me an example of a case on which he worked as a junior counsel, doing research – “donkey work” he called it. “Before I was in Silk I did a case and I tried to tot up approximately how many hours I did on this particular case. I reckoned that the amount of work was about the same as six weeks of a full-time employment. I earned over that notional six weeks, more than my annual salary.”

For his whole teaching career, Professor Jolowicz was a strong believer in what he called “the Cambridge way”, and it was his experiences as an undergraduate at Trinity with Jack Hamson that formed the basis for this conviction. Hamson had meticulously read and annotated Tony's written work during the intensive system of “supervisions” that operated in Cambridge at that time, and Tony found these comments so important to his understanding. It formed a lasting impression on him and when he started his weekend teaching at University College Oxford the advantages that he experienced under Hamson were so ingrained that he could conceive of no other way to help his own students. He asked Norman MarshFootnote ¹⁵ who was in charge of the weekenders' schedules, “is it all right if I do it the Cambridge way because I didn't know anything else” and he said, “What is the Cambridge way?” I said I would tell the undergraduates to send me their essays to Chambers by the latest Friday afternoon, I would read them on the train before I saw them for supervision. He said, “Oh that's marvellous, no Oxford don would take that trouble.” Because at Oxford they made them read them out in the class.”

Thus, even by Oxford standards in the early 50s, “the Cambridge way” was too demanding of lecturers' time. The basis of the system was weekly tutorials in very small groups. It was extremely time consuming for the academics and Professor Jolowicz described how “… . every week, three days a week… . I would spend the time from going back to my room after lunch reading these essays. Get through them by 5 o'clock…and give it back at the beginning of the supervision [from] 5 to 8. We dined at 8 at Trinity”. “I reckon the whole of every afternoon on a teaching day was either preparatory reading, reading essays or doing supervisions…It was not perhaps my most favourite pass-time.” The advantage for the students was that “. …it makes you write and give them a commented answer on things…”. Professor Jolwicz was well aware that this supervision system was a “very extravagant and expensive way of teaching”, but knew that “… it's extremely good and effective. Not many places could afford to do it…. If we hadn't been doing it since the Middle Ages, we wouldn't be doing it now.” Nevertheless, times have changed, and he remarked that modern “supervisors don't like reading essays – it's a chore”

Although he had benefited personally from the Cambridge college-based system of education, his admiration for it is not based solely on an insular outlook. On the contrary, it is the opinion of a teacher who has experience in several contrasting educational settings. In addition to teaching sojourns to the Chicago Law School (1957 and ‘58), where he was exposed to the “case-based” method, Professor Jolowicz also spent a good deal of time in France and Mexico. His experiences at the University of Paris in 1976 made him realise what a relatively benign teaching environment Cambridge students enjoyed with their small classes and close relationship with their teachers. In Paris, where his post was, in effect, that of a French civil servant, the number of students was large “I swore when I came back from Paris, I would never listen to a complaint from a Cambridge undergraduate.” The situation was brought home to him on one occasion when he was in discussion with a student about a seminar paper that the student was preparing. Wishing to have lunch, he invited the student to join him in a café, and the student commented “You know, this is the first time in my life that I have had a cup of coffee with a professor.”

Circumstances were similar, but exaggeratedly so in Mexico City where Professor Jolowicz paid several visits to the National Autonomous UniversityFootnote ¹⁶ to teach. Here he found that the Law Faculty had ten thousand students, and that their working day consisted of classes from 7 to 10 am, then a break when many did a job to earn money. Later in the day they returned for more classes between 5 pm and 8 pm. Although some students were very hard working, most were not (“…. ten thousand people – not many students!”), and at the end of their courses the prospects of a good job were slim. Again, he realised what a blessing his own courses and the nature of the student/teacher relationship at Cambridge had been.

Scholarship and the nature of Civil Procedural Law (1955 – present)

Professor Jolowicz's academic career followed an impressive trajectory of achievement. After only four years as an assistant lecturer he was promoted to a lectureship in 1959, made Reader in Common and Comparative Law in1972, and in 1976 was given a personal chair in Comparative Law. He retired in 1993, but has continued to research and publish up to the present, and I have included a bibliography of some of his important works as a short appendix.

In the early years he worked on a variety of topics, including editing his father's lecture notes on jurisprudence (1963) and re-writing the famous student text by Winfield On Tort (the 7 – 9^th editions, 1963–71) and contributions to Clerk & Lindsell on Tort (14^th edit., 1975). However, the thread that runs through all his work, and on which he published numerous chapters, journal articles and his most recent text On Civil Procedure (2000), has been a quest to understand the nature, purpose and quirks of English procedure and in particular how it can best be reformed and refined to cope with the changing norms and requirements of society. There have been several formal attempts to reform civil procedure over the last few decades, as well as cases which have shaped it, and of these Tony Jolowicz has been an outspoken commentator and critic.

His concern with the way civil procedural law handles various notions was raised on numerous occasions when we discussed his various works, and one particular matter with which Professor Jolowicz is unhappy is the legal profession's ambivalence about whether the law is involved in settling disputes or whether the court's role should be primarily to get at the truth. A consideration of this dilemma raises all manner of related issues, many of a procedural nature. Examples are: the issue of case management; the role of “uninformed” judges; the whole concept of an adversarial system; and the way that the Common Law deals with appeals.

Professor Jolowicz has strong, not to say dismissive, views on the way reform of the law has been engineered to deal with some of these areas in England over the last few decades. Two government-driven developments in particular have irritated him: the implementation of the Woolf ReportFootnote ¹⁷, and the imminent establishment of the new Supreme Court. Because both are likely to have far reaching consequences in shaping civil proceedings in the future, I think it is useful to place the views of a doyen of civil and comparative law before readers.

As soon as Lord Woolf's report appeared, Professor Jolowicz wrote a commentaryFootnote ¹⁸ on the possible effects of transferring the pre-trial progress of action from the parties to the judge, and whether Woolf's intention of maintaining the traditional Common Law adversarial system were realistic. Professor Jolowicz concluded that, in fact, Woolf's proposals were likely to put the traditional Common Law adversary system at risk, and that seeing juries in civil trials were already virtually extinct, the likelihood was that judicial decisions would aim at substantive, as well as procedural justice. Being a non-believer in the adversary system of English law, Professor Jolowicz welcomed these developments, but it was not without irony that he pointed out how Woolf's reforms have achieved the opposite of what was intended. Notwithstanding his initial optimism that Woolf would achieve what he had hoped for, by default, his remarks apropos comments in his 2000 book On Civil Procedure Footnote ¹⁹, suggested that although he knew Harry Woolf well, and that he is an extremely “nice man”, his opinion is that the Woolf reforms have, over the last decade, been “torn apart” and that “some people [are] describing them as a disaster”.

On these matters of reformation, Professor Jolowicz parted company with his old mentor Jack Hamson, who, writing in the Preface of a 1970 bookFootnote ²⁰ edited by Jolowicz and Cappelletti, made some disparaging remarks about the (then) new Government post of Ombudsman, which he saw as a “fashionable modern device (which is a mark of civic indolence)” (p. xii.). These remarks were made by Hamson in his own defence of the adversary system and right of a litigant for his day in court, a position for which Professor Jolowicz had, apparently, originally been an advocate, but which latterly he has ceased to embrace.

This change of heart was brought about, at least partly, by his personal familiarity with the working of the legal profession, which caused the whole process to be “enormously costly” and with his realisation that the underlying philosophy of English civil litigation “..simply eschews the question of truth. Truth is irrelevant..” On such a fundamental, not to say emotive point, Professor Jolowicz continued to raise concerns in his most-recent book On Civil Procedure book (2000, e.g. p. 377), and in a recent paper in which he again raised the cry “Civil litigation: what's it for?”.

In both he returns to the infamous ruling of the Court of Appeal and House of Lords in the Air Canada caseFootnote ²¹ that led to his conclusion, “… it is not the court's role to decide which, if either of the parties’ cases is objectively correct..”Footnote ²² To him this notion epitomised the adversary system, entrenching the civil courts merely as a “system for the settlement of disputes in which justice is equated with procedural justice between parties….and that he [the judge] may only resolve the controversy as it is put before him by the parties.” He summed up this to me as “… it's so counter intuitive…”.

To him, the search for truth by courts should be taken for granted, but when I asked him if he would be in favour of legislation, as in France, where courts are charged with objectively seeking the truth, he conceded that he was not. As he put it, “…perfect truth is probably out of reach, but the closest approximation to the truth the judge can find is, I think, a very important thing to get. I wouldn't necessarily like legislation, because you can't have the truth, . …. I think one of the tests…is to say, if the judge is compelled to give judgment when he is of the firm opinion that he has not heard adequate evidence….[that]…..he doesn't think his own decision is right… So I coined the phrase “The closest possible approximation to the truth”.

The second matter of legal reform that exercised Professor Jolowicz's disdain, and which has recently been unleashed on the English Law, is the new institution of the Supreme CourtFootnote ²³. It is an issue that brought out his combative spirit: “A total waste of money. A total, absolute waste of money…It won't make any difference…” When I suggested that it would probably handle more cases than the House of Lords, he said “Maybe I don't know. It's not going to be a Supreme Court in the sense of any constitutional court like the American's. I was surprised that Lord Bingham was very keen on it …. They won't have any more power than the existing House of Lords. An immense amount of money's gone into it.”

A Chevalier comes to Barrington

Much of Professor Jolowicz's research involved comparison of the notional aspects of civil procedural law between the Common Law and various continental civil jurisdictions, particularly that of France. This side of his scholarship was grounded in his mastery of the French language, and over many years resulted in his close association with two of the scholars who had also held the position of Arthur Goodhart Visiting Professor of Legal Science at Cambridge – the late André TuncFootnote ²⁴ (the inaugural incumbent 1972–3) and Xavier Blanc-JouvanFootnote ²⁵ (1976–7). He became close friends with both, particular Tunc, of whom he said “…he gave me a great compliment once…” “you may lecture in French, but you may not publish in French without showing it to me”. “He was a great, great friend and a lovely, marvellous man”. Blanc-Jouvan was Professor of Law in Paris at the time Tony lectured there (1976), and the two continued their friendship when Blanc-Jouvan came over to Cambridge as the Goodhart professor.

This long association with French academics, his stint in Paris teaching, and the fact that he had “…written quite a lot in English about French law and in French about English law..”, resulted, “out of the blue”, with the French Embassy writing to him in 2000 saying that he had been nominated for the Légion d'honneur. When I asked him about it, he still seemed somewhat mystified at the circumstances surrounding this turn of events, but was quick to point out that he had not been the first Faculty member to have been so honoured – that had gone to his mentor Jack Hamson. Nevertheless Hamson's French was very fluent, although according to Professor Jolowicz spoken with an “abominable accent”, and even his mother, who was French said “My son, Jack, he speaks French like an Englishman”.

His investiture took place in 2002 at the “magnificent house of the French Ambassador in London…,” and there is a splendid picture in our Eminent Scholars gallery of this occasion, with his wife Poppy.

Final thoughts

Professor Tony Jolowicz is a man of the old school, cultured, courteous and concerned with the underlying health of the legal subject with which he has been associated since the 1950s. His love of Cambridge and the collegiate structure and the advantages it bestows on those fortunate enough to be exposed to it were evident throughout our interviews. On my visits to his home I was received with warmth and openness and thank him and his wife Poppy for all their hospitality.

Further highlights of Professor Jolowizc's career