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Law, caution: towards a better understanding of law for IR theorists

Published online by Cambridge University Press:  14 July 2010

ADRIANA SINCLAIR
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Abstract

The aim of this article is to provide International Relations (IR) theorists with a better understanding of law. This is important for all IR theorists, not just those who focus on international law, because the legalistic way of viewing the world colours all aspects of our world, from teaching us what justice is and providing the means to achieve it, to framing our understanding of human relations and giving us the language of rights with which to articulate it. This article has two main goals: first, to question our own assumptions about law; and second, to introduce IR theorists to the basics of legal methodology and demonstrate how law actually operates.

Information

Type
Research Article
Information
Review of International Studies , Volume 37 , Issue 3 , July 2011, pp. 1095 - 1112
Copyright
Copyright © British International Studies Association 2010

Introduction

The aim of this article is simple: to try to provide International Relations (IR) theorists with a better understanding of law. A basic awareness of law and the legal mind-set is important not only for scholars interested in international law but all IR theorists because it gives a better understanding of the international system and the legalistic world view. It is hard to overestimate the importance of the legalistic way of viewing the world: it teaches us what justice is, that it is desirable, and shows us how we can achieve it. It frames our world-view. It also frames our basic understanding of how human relations should work within political society and gives us a language of rights with which to articulate it. An understanding of the legal form and an appreciation of the legal way of thinking will enrich and broaden the IR theorist's world-view and intellectual awareness. The tendency of many IR theory accounts of law to implicitly view law as ‘a force of linear progress, a beacon to lead us out of darkness’,Footnote 1 can largely be attributed to an ignorance of how law works on the most basic and mundane level. Undoubtedly there are more sophisticated ideas of law but this is not what IR theory needs. The point of this article is to start to address the lacuna in IR theory's understanding of law and equip scholars with a little basic knowledge. This is not simply for the satisfaction of filling gaps but because a better understanding of the basics will produce better theory and strengthen our ability to understand and describe the world.

As IR theorists we need to be wary of falling back on our unspoken and common-sense ideas of law. As a discipline IR theory has not engaged in any sustained way with jurisprudence or legal theory. In part this is because IR theorists want to know about international law and jurisprudence has traditionally ignored it.Footnote 2 When jurisprudence does address international law it is primarily interested in answering the question of whether international law is really law. For IR theorists this question is fairly uninteresting; we are less concerned with how international law is categorised and more interested in knowing whether it is obeyed and how much, if any, causal power it has. Nor is law the most approachable of disciplines, with its own language, specific legal terms and heavy use of Latin.

Both these elements have pushed IR engagements with law away from theory and towards an approach focused on technical issues: the use of force, international trade, the environment.Footnote 3 This again has reinforced the tendency among IR theorists to rely upon our own common-sense ideas of law. It is just such ideas that Judith Shklar terms ‘legalism’: the Western idea of law.

In brief, legalism holds that moral conduct is a matter of rule-following and that all human relations can be put into the form of claims and counter-claims over rights and duties. This ethos has percolated throughout our society from the highest courts in the land to the village green, to the way we understand human relations. We understand the world through the idea of rights, so much so that envisaging justice as anything other than the ‘equal application of rules’Footnote 4 is almost impossible. This is both what justice is and how we achieve it. It sees the legal rules as both necessary and neutral and as applied by impartial legal technicians. It is the Western world's assumptions about law, which in turn have become the globally dominant idea of law. This belief in the rectitude and morality of rules and rule-following has coloured all of life from the highest courts in the land to the way we understand human relations. Moreover, its influence has extended to the international realm and international law. It is not only a way of resolving disputes but of being in and seeing the world.

But why should it matter that IR theorists' idea of law is coloured by legalism? Quite simply, the reality of law is sharply at odds with the image of law presented by legalism. This will become clear as we look at the historical emergence of legalism and how the law actually works. This article will therefore start by noting some popular ideas about law before undertaking a brief historical tour in order to demonstrate how law has developed over time and why knowing this matters. Here I trace the emergence of legalistic ways of thinking to the seventeenth century, the rise of the merchant class and their use of ideas of law, property, and rights to advance their position. In the third section of the article I will introduce the reader to the basics of legal methodology and briefly synopsise how court cases proceed and how legal decisions are reached.Footnote 5 Finally, I offer two illustrations in order to provide some practical support for my theoretical arguments: Brown v. Board of Education and desegregation in America, and attempts to improve conviction rates for rape in the UK. These illustrations also enable me to tackle the more difficult question of the capacity of law to deal with complex social phenomena.

1. Legalism in popular ideas of law

But first I want to start with a rough idea of the popular perception of law:

(1) the law on a particular issue is pre-existing, clear, predictable, and available to anyone with reasonable legal skill; (2) the facts relevant to disposition of a case are ascertained by objective hearing and evidentiary rules that reasonably ensure that the truth will emerge; (3) the result in a particular case is determined by a rather routine application of the law to the facts; and (4) except for the occasional bad judge, any reasonably competent and fair judge will reach the ‘correct’ decision.Footnote 6

Does this sound familiar? Accurate? A fair assessment? We will return to this perception of law towards the end of the article and see if the intervening argument has altered the seeming reasonableness of the above quotation.

What elements of legalism can we identify in this idea of law? The rules are clear, predictable and politically neutral. Law operates impartially and is nothing more than the routine application of rules to the facts by skilled legal technicians.Footnote 7 Law is seen as simply ‘there’. To clarify: ‘To be “there” it [the law] must be self-regulating, immune from the unpredictable pressures of politicians and moralists, manned by an impartial judiciary that at least tries to maintain justice's celebrated blindness. That is why it is seen as a series of impersonal rules which fit together neatly’.Footnote 8 Another key part of our idea of law is that it is a superior mode of social action to politics: what Shklar calls the policy of justice. Legalism is so prevalent as to be beyond reproach: who would argue against justice? But, as Shklar writes:

It is the rigidity of legalistic categories of thought, especially in appraising the relationships of law to the political environment within which it functions, that is so deleterious. This is the source of the artificiality of almost all legal theories and is what prevents its exponents from recognising both the strengths and weaknesses of law and legal procedures in a complex social world.Footnote 9

We can also see the importance of certainty in this idea of law. Indeed, legalism's most basic aim is certainty and it is through certainty that individual freedom is best guaranteed.Footnote 10 This is an idea with which we are all familiar: the idea of the rule of law. The belief in the rectitude of a governance of laws, not men, has long been considered the mark of a civilised society.Footnote 11 As the popular perception says: law should be predictable. We must know with confidence what the law is so that we can modify our behaviour accordingly and constantly changing laws are seen as the hallmark and tool of tyrannical regimes. Certainty is the primary value of the rule of law. The rule of law is principally concerned with the form of law, rather than its content: law must not impose impossible demands, they should be prospective, not retroactive; laws should be consistent with each other; they should be public, clear and constant over time.Footnote 12 Provided a law meets the checklist of requirements its content is unimportant.

According to Shklar, this tendency to think of law as ‘there’ as a discrete entity, which is discernibly different from morals and politics, is rooted in the legal profession's views of its own functions, and forms the basis of most of our judicial institutions and procedures.Footnote 13 This in turn is exacerbated and reinforced by the structure of legal education and the nature of legal methodology to be discussed below. It also means that the law can therefore be understood without reference to the societies in which it evolved and which it continues to regulate. Law has an integral history of its own and one that can be understood without reference to social context. Instead, law evolves according to a logic of its own; it is a discrete entity. In truth, legalism cannot see law as a product of its social context and influenced by the different historical epochs through which it evolves, because to do so would reveal that the laws we have are a consequence not only of those different historical eras, but that they reflect the interests of the powerful throughout history. To Shklar this deliberate isolation of the legal system is the expression of a preference, rather than a logical necessity of legal reasoning or judging human actions; it is the result of legalism. Even though we may be happy to see law as influenced by and as enshrining society's moral codes, we do not see the disproportionate role that powerful groups and actors have upon the law. This is why Shklar's idea of legalism as a moral ethos is important: because while key legal ideals, like contract, the protection of property and the notion of rights and duties, may not be moral ideas, they have been moralised in order to justify them and reduce opposition. While we may know at some level that some or all of these assumptions may not be entirely true, and we know that miscarriages of justice and so on occur, the crucial point is that we consider such instances to be the exception rather than the norm and still consider law to provide justice most of the time.

Legalism has provided the standards of organisation and operative ideals of a vast range of social groups from village social clubs to governmental institutions and ultimately the legal systems of Europe and international law. Not only is it expressed through personal behaviour but also in philosophical thought and political ideologies. Legalism has pervaded and shaped society and law and its way of thinking have come to frame our world. But how did this come to be?

2. The origins of legalism

Kurt Burch, J. G. A. Pocock, Michael Tigar and Madeleine Levy all share Shklar's belief that a certain set of ideas about law has become dominant. For Burch, law is an ideology which revolves around property: privileging and protecting it.Footnote 14 And for Tigar and Levy, this is bourgeois legal ideology, a set of ideas which reflects the interests of the bourgeoisie, primarily defined in terms of attaining a privileged position within society, both through property and measured in terms of it.Footnote 15 For Pocock, this is the ‘common-law mind’, the belief held by the gentry that English law was custom and had existed since time immemorial.Footnote 16 It was the product of no one will and because no one will made it, it was impartial, fair and perfectly fitting. That this idea of law also happened to strengthen the gentry's position vis-à-vis the monarchy and nobility is no coincidence.

All these authors take the seventeenth century as the pivotal historical periodFootnote 17 in the development of law and legalism. During this century feudalism was pushed aside by capitalism, at least an embryonic form of itFootnote 18 and, as Burch argues, by the close of the seventeenth century the ‘conceptual crosshairs’Footnote 19 for the modern, capitalist era were in place. As the bourgeoisie or merchant class became more powerful, it began to influence the creation and orientation of law. In order for trade to develop it had to be protected and a system emerged which not only guaranteed the physical security of merchants but also made credit, insurance and the transmission of funds possible.Footnote 20 As a result laws regarding contracts and property were created. Along with these legal rules there also developed a certain legal mind-set which reflected the interests of the bourgeoisie, protecting their property and freedom to trade. This understanding of law was not simply held by the bourgeoisie but, according to both Burch and Tigar and Levy, it came to be held by legal theorists too. Central to this ideology was the principle of rights, and by implication, property.

Property, rights and property rights

Property, and the ability to own, sell and exchange it, was fundamental to the emergence of capitalism and the rise of the bourgeoisie. Without the belief that an individual possessed a property in themselves, capitalism, trade and the emergence of a merchant class simply could not have happened. Perhaps the most famous articulation of this sentiment is Locke's: ‘every man has a Property in his own Person. This no Body has any right to but himself’.Footnote 21 The idea of property did not just relate to material possessions that an individual owned but also included rights, and property rights became the most fundamental rights a person could have. As such, rights could be considered a form of property; rights were something you possessed. The centrality of rights and the concomitant duties continues to be a central idea in our shared political universe and the collection of ideas, or ideology, which characterise it.

As a consequence the rights that became protected reflected the interests of the groups that were dominant within society at that time. William Blackstone's Commentaries on the Laws of England (1765) argued that the principal aim of society ‘was to protect individuals in the enjoyment of those absolute rights’.Footnote 22 He envisaged three absolute human rights: ‘the right of personal security, the right of personal liberty, and the right of private property’.Footnote 23 In other words – life, liberty and estate. If we take as our unit of reference the autonomous, rational (male) individual, the protection of such rights seems both natural and necessary. Yet as Hilary Charlesworth and Christine Chinkin have pointed out, such rights do little for women, and even less for seventeenth century women, who were unable to own property, vote and were themselves merely the property of their father or husband. The civil and political rights that were the first to be protected reflected the concerns and dangers faced by the men of liberal society. To Charlesworth and Chinkin: ‘[t]he operation of a public/private distinction at a gendered level is most clear in […] those [rights] concerned with the protection of the individual from violence’.Footnote 24 One example of this can be found in possibly the central human right: the right to life. This right is primarily concerned with the arbitrary deprivation of life through public action, something which the man of liberal society might reasonably fear. But such a construction obscures the most pervasive harms done to women and the reality that, for a woman, the home is the most dangerous place to be and one's own family are a greater threat than the state. The androcentric nature of rights means that ‘[t]o assert a legal right […] is to mischaracterise our social experience and to assume the inevitability of social antagonism by affirming that social power rests in the state and not in the people who compose it’.Footnote 25 Yet this idea of rights as property is pervasive. Pocock refers to: ‘a consciousness universal among Englishmen that property was the distribution of land by law and law the distribution of land as property’Footnote 26 and it is hard to over-estimate the importance or potency of the property-rights-law nexus. As Burch argues: ‘individuals possessing property rights constitute society; society, maintained through legal rules, secures individual rights and constitutes agents; the law (the social rules, the property rights) determines how agents organise and reproduce society. This is the process of social construction’.Footnote 27

Legalism becomes prevalent

As men of property, education and status came to see law as a vital form of protection and used it to serve their purposes, the language and reasoning of law spread. This legal worldview eventually came to dominate our ways of understanding the world, and legal values came to condition perceptions, establish role expectations and provide standards of legitimacy.Footnote 28 Legal discourse became the means for debating and understanding social, political and economic problems and most gentlemen had some kind of legal education. Indeed, the very act of discussing problems in the language of law unavoidably puts them into legal form and reduces them only to what is deemed legally relevant.

But the law provided more than a convenient language. According to Burch, it provided a coherent worldview, one which saw social problems (and solutions) in terms of rights and duties. It is no coincidence that liberalism is underpinned by what Stuart A. Scheingold calls: ‘a social perspective which perceives and explains human interaction largely in terms of rules and of the rights and obligations inherent in rules’.Footnote 29 For Scheingold, Burch, Tigar and Levy, liberalism, property and legal ideology are all fruit from the same tree.

Similarly, Pocock argues that, in advancing their interests, the rising merchant class referred to the ‘ancient constitution’; ‘the idea of law as a thing ancient, immanent and unmade, proof against invasion by human wills because no will made it’.Footnote 30 Law was common law, having originated from customs which, over the course of years of iteration, attained the force of law.Footnote 31 This uniquely produced a law which ‘so framed and fitted to the nature and disposition of this people, as we may properly say it is connatural to the Nation, so as it cannot possibly be ruled by any other Law’.Footnote 32 English law is immanent, ‘like a silk-worm that formeth all the web out of her self onely’.Footnote 33 Viewing law as originating from the very nature of the English people, fitting all perfectly and reflecting no particular interest, strengthened those social forces which were trying to loosen the grip of the monarchy and nobility. And yet for all the romanticism of the common-law mind and the ancient constitution, common law was essentially property law in this period. As Burch sums it up, the political debates of the mid – to late-seventeenth century illustrate that: ‘property constitutes not only social structures […] and practices […] but also structures of thought. Through legal discourse individuals conceived, conditioned, and carried out their behaviours […] jurisprudents constructed the conceptual foundations for the state and capitalist markets. Property was central to the framing’.Footnote 34

As a consequence, understanding the origins of the legal ideology which is still with us today can provide invaluable insight. What may appear settled, immutable and natural today was once contested and revolutionary. According to Tigar and Levy the massive political and legal change of the seventeenth century can be traced to the conflict between social classes that sought to ‘turn the institutions of social control to their purposes, and to impose and maintain a specific system of social relations’.Footnote 35 Once the bourgeoisie became secure in their privileged position they essentially raised the draw-bridge to prevent others from sharing, or toppling them from, their position. Thus bourgeois legal ideology for Tigar and Levy comprises two elements: the reification of the principles of property and contract upon which the capitalist system rest, and using the state power to protect and enshrine them. But the legal ideology of the bourgeoisie also comprised a third element: the instrumental use of the legal principles of personal freedom and fairness to individuals in order to win power.

Burch identifies a similar dynamic: that seventeenth century law was both universal and exclusionary. It was universal in that it sought to protect the liberties and property of citizens against royal authority. People were free to enter into contracts to exchange it as they wished. No one need work or be forced to sell their property; they chose to. As Tigar and Levy note the assumption is that because no one need work, and ‘those who do settle the terms by bargain’.Footnote 36 However, both these ideas proved fictional: the poor, marginalised, small landowners, and those without property could not avoid the ‘practical realisation that the law excluded them’.Footnote 37 Law represented the interests of the propertied and served their purposes. Moreover, the much vaunted freedom of choice proved illusory. Bourgeois legal ideology thus hid the reality that the wage-labourer's lack of property forced him to hire out his labour and that as a result he was in a position of weakness, unable to refuse the bargain that was offered to him, however unfair.

Thus it becomes clear through historical analysis that law is a product of its social context and the different historical epochs through which it evolved. What is also clear is that law bears the hallmarks of its creators and it reflects, enshrines and protects their interests. This might seem a fairly common-sense statement but its absence from the traditional view of law is significant.

3. Legal method and the nature of legal reasoning

A lawyer's son is accused of breaking the schoolroom window: He responds: ‘In the first place, sir, the schoolroom has no window; in the second place, the schoolroom window is not broken; in the third place, if it is broken, I did not do it; in the fourth place it was an accident’.Footnote 38

The legal profession is key to the continued centrality of legalism and it too is characterised by legalism: it is their identity and socialisation. According to Shklar: ‘The court of law and the trial according to law are the social paradigms, the perfection, the very epitome, of legalistic morality’.Footnote 39 It leads us to see society as best and most justly organised in terms of rights and duties, and that protection and satisfaction of these rights and duties constitutes justice. Legalism pervades and shapes society and law, and legal discourse and way of thinking has come to frame our world, whether we realise it or not.

In the paradigm of law two parties have a dispute which they are unable to resolve by themselves so turn to an impartial third party to arbitrate, or, if the matter is criminal rather than civil, the state will prosecute the alleged perpetrator. But the first step for what will become a court case is to put the issue into the correct legal form. Clients come to lawyers with storiesFootnote 40 from which lawyers must identify the applicable legal rule and relevant precedents, often giving the client an assessment as to their likely chances of success. In the criminal counterpart, the police must decide what the alleged offender should be charged with and this is confirmed or altered by the state prosecutors. But in order for the dispute to enter into the legal system it must first be classified. This process can significantly alter the essence of what has happened: there is no offence in being rude, for example, however aggrieved one party may feel. In addition, people can only be charged with committing acts that are illegal and if an act, however despicable, is not illegal, the law is silent. One such example would be the act of downloading child pornography. Until it was defined as a crime and the relevant Bill became law, no one could be prosecuted for doing it. Legal method teaches lawyers to view social problems as a series of disconnected disputes and by treating each case as an isolated event the systemic nature of discrimination is hidden.Footnote 41

The potential damage done by the process of classification is compounded by the rules governing the use of facts and proof in court. Evidence must be deemed relevant and admissible to be allowed into the courtroom. How facts are used is also important. At a minimum each side will emphasise different facts in order to support its case. There is no obligation for a lawyer to raise a fact in court which may be detrimental to her case. It is up to opposing counsel to find and use to the best of their ability all the relevant facts. If opposing counsel is less than competent and omits a key fact to their case, the other side will not introduce it. The system is adversarial and the aim is to win, not to find the truth.Footnote 42 On a more basic level all facts must be described in court and this requires language which can be twisted and deployed to ridicule, denigrate, emphasise and twist the facts. The role of language can be central to the outcome. Susan Ehrlich's analysis of the language of rape trials is instructive here. She demonstrates the tendency of defendants and their counsel to use the language of non-agency when referring to themselves and their actions: ‘my shirt came off […] I gather that I took it off’.Footnote 43 Such a construction, especially when used repeatedly, can be extremely powerful in creating a perception of innocence, or at least the absence of guilt.

But most importantly of all, facts change from case to case. This may seem an obvious point but it is an important one in legal method because legal reasoning works by drawing parallels between cases. This is precedent, the logic by which all legal systems – common or civilian, operate. The reasoning and decisions of preceding cases are not simply a guide but can actually be binding. This is known as stare decisis, or to give it its full name stare rationibus decidendis, meaning ‘let the decision stand’. This latter term is actually the more accurate description because it is the reasoning (rationibus) that is binding, not the decision. Clearly, not all legal decisions are binding. Instead, there is a hierarchy of ‘bindingness’. A court must follow the decisions of higher courts, but not courts which are equal or lower.

The value of precedent lies in the consistency that it produces. Continually referring back to past decisions makes the law and the decisions it creates remarkably consistent. James Holland and Julian Webb see precedent as ‘really the lawyer's term for legal experience. We all tend to repeat things we have done before: law is essentially no different’.Footnote 44 As a consequence, law is incredibly path dependent. But the reality is less rigid than the doctrine of precedent depicts. First of all, several precedents will, at least initially, be relevant. This is what the opposing sides do: find a precedent which fits the verdict they want the court to reach and which can be argued to be relevant. Opposing sides may even agree on the precedent that is relevant and simply disagree over the material facts (that is, the facts that are central to the decision). And even where there is one, clearly relevant precedent the judge may still decline to apply it. Judges may deem a precedent to be ‘awkward’ and therefore do not have to apply it. This provides a judge who is sufficiently determined not to apply precedent strictly with a means of so doing.Footnote 45 Judicial discretion also extends into relying upon policy in reaching their decision. This, according to Holland and Webb, ‘can range from the pragmatic, such as the so-called “floodgates principle” […] to the political’.Footnote 46 The judiciary has been extremely wary of admitting this because it would mean that judges were making law rather than just applying it. It is only Members of Parliament, as our elected representatives, who have the right to make law but the reality is that judges do sometimes use policy as their guide. Judges may also cite general principles of justice or equity in their decision-making and use them to justify reaching a certain decision.

Which raises the question: if judges are not just legal technicians impartially applying the law but have the latitude to import their own opinions and prejudices, should we be paying more attention to who they are? Should they be more representative? As Lord Justice Scrutton concedes: ‘Impartiality is rather difficult to obtain in any system. I am not speaking of conscious impartiality, but the habits you are trained in, the people with whom you mix, lead to your having a certain class of ideas of such a nature that, when you have to deal with other ideas, you do not give as sound and accurate judgements as you would wish’.Footnote 47 As a group, judges are still overwhelmingly white, male, upper middle class, elderly and educated in single-sex public schools. As Sue Lees points out, such institutions tend to foster ‘extreme forms of masculinity’.Footnote 48

Clearly there is considerably more complexity and confusion than the traditional view of impartial judges applying legal rules. The reality is actually more complicated because facts are always different. The difficult task at hand is assessing how significant these differences are. When Holland and Webb ask: ‘what is it about legal disputes which means that both parties can be sufficiently certain of the ‘truth’ of their claim, and the legal merits of their case to go to court, even though only one of them can win?’,Footnote 49 the answer can only be that because the facts of a case can be interpreted differently, multiple precedents can be deemed relevant and different constructions and outcomes can be placed upon the case. In short, there is sufficient confusion to make a court case possible and/or necessary.

So how does legal logic work? Edward Levi identifies three steps to the process of legal reasoning: ‘similarity is seen between cases; next the rule of law inherent in the first case is announced; then the rule of law is made applicable to the second case’.Footnote 50 Because the facts of case A will not fit perfectly with case B interpretation is required. For this reason Levi argues: ‘it cannot be said that the legal process is the application of known rules to diverse facts [rather] the rules are discovered in the process of determining similarity or difference’.Footnote 51

In one sense the reason for such confusion can be found in the way precedent operates: when judges assess a precedent's relevance to the case at hand they are not just matching the facts with one case with the facts of another, but matching the ratio decidendi – the reason for deciding. Cases which may be factually quite different may be governed by the same ratio. However, even this is not as clear-cut as it may first appear. In Twining and Miers' words, finding the ratio ‘is not like a hunt for buried treasure, but typically involves an element of choice from a range of possibilities’.Footnote 52 There can be contestation over what the ratio of a case is, a case may have more than one ratio and worst of all, in some cases no one can find the ratio at all.Footnote 53 A judge can decline to follow anything that is not the ratio (however defined) so what gets classified as the ratio is very important. One judge may consider one statement to be the ratio, while another may see it as mere non-binding obiter dictum.Footnote 54

Legal reasoning uses both inductive and deductive reasoning but it is deductive reasoning that is emphasised in the traditional view of law. Deductive logic takes the legal rule as its start point, for example, ‘any individual who takes another's property with the intention permanently to deprive that other of it, shall be guilty of an offence’ and uses the IF-THEN form. IF the accused has taken another's property with the necessary intent, THEN she is guilty of the offence. This IF-THEN construction supposedly ties the decision-maker's hands: if the first part is proven, the judge will have no choice but to convict. However, deductive reasoning is only used in the third of Levi's three stage process: in applying the legal rule. Inductive logic is used in deciding which rules are applicable. Judges and lawyers must decide between competing rules and competing interpretations of the same rule. Here complexity and confusion abound but this aspect of legal logic and decision-making is absent from the traditional view of law which depicts law instead as clear, uncontroversial and capable of being applied impartially. Moreover, the traditional view of law underemphasises the role that interpretation plays and the leeway that this gives legal decision-makers. So even when the deductive IF-THEN construction is used, the decision-maker's hands are far from being tied. In one respect interpretation and the flexibility it creates are desirable. It means that the law can change and grow in line with society. It also means that judges and other legal professionals have unfair influence on legal proceedings and the eventual outcome. But what is clear is that the reality of legal logic differs from the picture painted by the traditional view of law.

4. Law and legalism in practice

The purpose of this article has been to unearth our expectations of law in order to better equip IR theorists with a self-reflexive and informed understanding of law. Remember the popular perception of law that appeared at the start of the article? It offered a picture of the legal process or what happened in court. To repeat:

(1) the law on a particular issue is pre-existing, clear, predictable, and available to anyone with reasonable legal skill; (2) the facts relevant to disposition of a case are ascertained by objective hearing and evidentiary rules that reasonably ensure that the truth will emerge; (3) the result in a particular case is determined by a rather routine application of the law to the facts; and (4) except for the occasional bad judge, any reasonably competent and fair judge will reach the ‘correct’ decision.Footnote 55

Here the everyday business of law seems a rather mundane, technical application of pre-existing rules and, from what we have seen of legalism, it seems to fit squarely within the legalistic ideology. In this picture of how the legal system works, bias is absent in several ways. First of all the rules are assumed to be objective and politically neutral and egregious bias would simply not be possible. Second, the legal professionals involved are assumed to be, if not bias-free, then wedded enough to the legal ideal of impartiality and justice as blind, to be able to operate without bias. And while humans may err, the long-established and respected legal rules will form a buttress against the entry of bias. Third, the nature of legal reasoning and the legal form into which social conflicts are put, is not seen as capable of bias. The nature of legal reasoning and the legal process is seen as inevitable: this is the way it must be – how else are we to resolve disputes but to have a third party adjudicate? Thus the legal process is beyond reproach or challenge either in its everyday operation or as a wider systemic way of dealing with disputes. Not only is there no better way but all social issues can and should be resolved this way.

But what is clear from Shklar's notion of legalism and the social outlook it creates, is that legalism has produced an idea of how social issues are resolved and the logic by which this is achieved, which may not be accurate. There are two aspects to the social outlook produced by legalism. First, there is the picture of the legal process and the reasoning which forms a part of it: a dislike of vague generalities and a belief that the rules are ‘there’.Footnote 56 What this means is that law is seen as self-regulating, immune from the pressures of politics or morality, manned by a judiciary that ‘at least tries to maintain justice's celebrated blindness’,Footnote 57 and that this system of impersonal rules fits neatly together. Secondly, there is the belief that law is the best and only way to solve social issues and it does this on a case-by-case basis and by structuring all human relations into the form of claim and counter-claim.Footnote 58

I want to make two points here: firstly, the system does not operate in the way that legalism leads us to believe it does and secondly, I would like to raise some doubts as to the suitability and capability of law to solve complex social issues. In order to raise some doubts about how the legal system really works I will use two illustrations. The first is the landmark court case Brown v. Board of Education,Footnote 59 commonly referred to as the decision that ended segregation in American schools. I use this example to make two points. First, to illustrate how stare decisis, or precedent, works in practice and how this differs from the picture of precedent offered by legalism. Second, I want to argue that the Supreme Court's ruling in Brown did little to end racism in America and that this should lead us to question the capacity of law to solve, or at least help to solve, wide-spread, systemic social biases.

My second illustration concerns rape legislation in the United Kingdom. Since the late 1990s considerable attention has been paid to how rape is prosecuted in the UK with a particular focus being placed upon the low conviction rate. There have been a number of legal reforms but the conviction rate, already very low to begin with, has decreased year on year. This should raise important concerns over the capacity of law to provide justice for rape victims and the falsely accused alike.

Brown

In the popular imagination Brown means many things: a vital spark of the civil rights movement, a courageous and radical decision by a counter-majoritarian Supreme Court, a ‘beloved legal and […] political icon’,Footnote 60 and most of all, the decision that ended segregation. Jack Kluger argues that no legal decision had ever affected more directly the lives of so many Americans and that Brown was nothing short of the ‘resurrection of [American] ideals’.Footnote 61 To Jack M. Balkin the reason for this ‘special status is that Brown fits nicely into a widely held and often repeated story about America and its Constitution’,Footnote 62 that of a nation striving to live up to greater ideals. He calls this the ‘Great Progressive Narrative’ and it depicts America as ‘continually striving for democratic ideals from its founding and eventually realising democracy through […] historical struggle and acts of great political courage’.Footnote 63

But Brown was not an easy or obvious decision, not least because of the existence of another Supreme Court ruling on segregation that had happened just 58 years earlier. In Plessy v. Ferguson (1896)Footnote 64 the Supreme Court ruled that segregation did not violate the Constitution because segregation did not necessarily imply that blacks were inferior but instead were ‘equal but separate’. The Supreme Court ruled that if black Americans felt inferior because of being forced to ride separately from whites, that was because they ‘chose to put that construction on it’.Footnote 65 So, a clear, directly applicable precedent existed, and, following the doctrine of stare decisis, Plessy should have been straightforwardly applied and segregation upheld. As Michael J. Klarman puts it: ‘On the conventional legal materials Plessy was at least plausible, and it was arguably right’.Footnote 66 Because the conventional constitutional sources on segregation had not changed since Plessy, Brown was not an obvious conclusion. On what legal grounds did the Supreme Court reach Brown? In the infamous footnote 11, Chief Justice Warren based his opinion on social scientific ‘modern authority’, that is, sociological studies that showed that segregation damaged black children psychologically, rather than on legal considerations.Footnote 67 In short, ‘Warren and the Court decided to edge the country toward ending Jim Crow without offering a general theory of why Jim Crow violated the Constitution’.Footnote 68

Clearly the perception of Brown differs quite radically from the reality. According to Derrick A. Bell, the perception has served to make racism an ‘eminently fixable aberration’,Footnote 69 rather than a widely practised and supported social institution. Portraying Plessy as an anomaly enabled the Supreme Court and America to side-step the question of segregation and its deep-seated social roots. As Bell argues:

The Brown majority's racism as an unhappy accident of history immunises ‘the law’ […] from anti-racist critique. That is to say, the majority positions the law as that which fixes racism rather than as that which participates in its constructionFootnote 70

Moreover, despite the popular perception of Brown as the decision that ended segregation in America, practically no desegregation occurred in the decade following Brown.Footnote 71 From 1954 to 1964 the percentage of black children in elementary and secondary school with whites rose by only 1.199 per cent, from 0.001 per cent to 1.2 per cent. In the ten years after 1964, and following the Civil Rights Act of 1964 and the Voting Rights Act of 1965, the percentage of children in integrated schools rose by 89 percentage points, from 2.3 per cent to 91.3 per cent. What is more, when desegregation did start to occur in the mid-1960s, it required the unpopular bussing. And while schools are no longer legally segregated, de facto segregation along lines of race and wealth has emerged in its place. In Brown, law neither acted as legalism leads us to believe it should, following its own principles, nor does it have the capacity to even encompass systemic problems such as racism within its courtrooms, let alone solve it.

Rape legislation and reform

Legalism's central belief – that all social issues can be resolved through law, no matter how deep-seated or complex, is also found in the issue of rape legislation and reform in the UK. Conviction rates for rape have been a cause for concern for several years nowFootnote 72 and a number of legal reformsFootnote 73 have been introduced which were designed both to improve the treatment of rape complainants and thereby increase rape reporting rates, and to increase conviction rates. While reforms have been effective at improving the treatment of complainants and the reporting of rape has steadily increased, the conviction rate continues to drop. Rape seems to be an intractable problem. There are several reasons that recent legal reforms have failed to increase the conviction rate. First of all, the judiciary has proved to be a major obstacle to the implementation of the certain key reforms, like the admissibility of sexual history evidence, being subject to judicial discretion. This makes implementation uneven. Worse still court-reporting in 2000 found that irrelevant sexual history and sexual character evidence was being admitted in a wide range of cases, 24 years after the law was reformed to prevent this from happening.Footnote 74 The law on consent, for example, has, according to Vera Baird, the Solicitor-General from December 2008 to May 2010, been misapplied by judges, allowing juries to be told or led to believe that having sex with an unconscious person does not constitute rape.Footnote 75

The law concerning sexual history evidence, consent and inferring consent from dress, language or behaviour has been clear for many years.Footnote 76 The problem is that while information should not be allowed in court or that juries should be directed how to interpret such information, judges are failing to do so. The second, and most difficult problem, is the nature of the legal process where truth is ascertained through cross-examination. The belief is that a liar will breakdown under challenge, whereas someone telling the truth will not. We can distinguish truth from lies through the gladiatorial process of questioning in court. Clearly, this is problematic in rape trials where evidence of trauma can be confused with evidence of deceit. In Jennifer Temkin's analysis of tactics used by barristers in rape trials, for both defence and prosecution, how the complainant was perceived was crucial and the single most effective defence tactic, which all the barristers were happy to use, was to destroy the credibility of the complainant with whatever material the judge would allow.Footnote 77 Primarily this was sexual history evidence,Footnote 78 which could be completely irrelevant. Court-reporting carried out by Sue Lees in 2000 revealed that irrelevant material was still finding its way into the courtroom and ‘women were routinely made out to be promiscuous in court, with the implication that their testimony was therefore unreliable’.Footnote 79 Complainants were asked: are you a single mother, do you live with the father of your children, what is the colour of your past and present boyfriends? One complainant was asked about an abortion she'd had three years before the attack and was entirely unrelated to the rape complaint. Because the complainant is not on trial, she has no protection against this. If irrelevant material regarding the defendant were introduced, the trial would be prejudiced. It is only right and fair that a person on trial should have certain protection. However, in rape trials, destroying the complainant's credibility is so effective that nearly all complainants will have their character impugned and will be unable to defend themselves against this or correct mischaracterisation. While the defendant may bring character witnesses, the complainant may not. Moreover, the barrister for the defendant is his legal counsel and on his side. The barrister for the prosecution however is not representing the complainant but the state and prosecution barristers and complainants may not legally discuss the case. Barristers will therefore have little idea about who the complainant is as a person. All these factors can give the jury a skewed perception of who the complainant is, a perception which is not corrected by either the judge or the prosecution because such information is not deemed ‘relevant’. Combine this with the requirement that juries must reach their verdict beyond a reasonable doubt and it produces an unattainable burden of proof.

The system could be improved by simply enforcing the legal reforms which have been in place for over thirty years. But even if this were done and the considerable resistance of the judiciary were overcome, it is unclear that the legal system would be able to deal satisfactorily with rape. Should we start to question the capacity of the legal process to deal with problems which are the result of prejudices and biases held by society as a whole? The latest attempt to solve the problem of rape convictions admits as much: the creation of a panel of experts including doctors and judges to dispel the myths about rape victims, as well as another panel designed to examine how to ‘“tackle jurors” misconceptions’.Footnote 80 These are two different types of resolution butting up against each other: an attempt to change people's opinions about rape and therefore directly influence the trial, and the legal system's tenacious defence of the fiction that it is impartial with judges singularly undermining legal reforms by allowing into the courtroom information which has been deemed as legally irrelevant. Bias and prejudice manifest themselves at the level of legal personnel, at the letter of law and in a legal process that allows the perpetuation of bias. Is this our idea of law? Or justice?

Conclusion

In concluding let us return again to the popular conception of law outlined at the start of the article. How reasonable and accurate does it seem now? We have learned that there is a distinctly legal way of thinking and viewing the world that extends from the highest court in the land, to our local communities, to how we see and are seen in the world and our relations with others and the institutions that surround us. Law is presented to us as certain and predictable. It operates according to a certain impersonal logic and our best guarantee of freedom lies in the rule of law. It encourages a form of tunnel vision where what we see is primarily rules rather than processes and the idea of bias in and through law is completely absent. Because of all these things law is a superior mode of action to politics and is immensely powerful as a result of this perception. It has the capacity to solve our problems including complex social phenomena like racism and sexism. But law is not able to solve problems of this magnitude and it is important that we as IR theorists know this and are able to take law's over-inflated view of itself with a pinch of salt. The limitations of law come into much sharper focus when we look at how the law actually operates, both in terms of logic and actual empirical examples. Simply entering the legal domain requires the transformation of an event into legal form: two parties in opposition. The certainty and clarity of legal logic gives way to confusion and complexity when the reality is considered. Such fluidity is a necessary part of the system because it enables the law to keep up with an ever-changing society. If law were perfectly consistent and rigid, it would never change. For legal methodology the challenge is how to maintain consistency and the fabric of law without the law ossifying and being left behind by society. Were this to happen the law would lose its legitimacy and its public would begin to disobey (more than they usually do, that is). As Oliver Wendell Holmes said: ‘The life of the Law has not been logic; it has been experience’.Footnote 81 So why can't legal methodology admit this? The problem is that if legal decisions are being reached on the grounds of experience, we are no longer living under the governance of laws, but of men. Interpretation and the role of the individual judge simply become too important.

These controversies and debates about and within law will run and run. The point of this article has been to introduce them to IR theorists in the hope that this will furnish them with a better understanding of law and the legalistic way of thinking which colours all of society and human interaction. It sheds new light on the idea of justice and the value of rights. By questioning law's ability to solve complex social phenomena it is hoped that IR theorists will be less likely to simply paint law as our saviour, as the light to politics' dark. Bias and discrimination can happen through the forms of law and simply being aware of critical understandings of law on an abstract level (they have no other level as yet), does not mean that its insights are applied to the daily operation of law and the understanding of the international system. It is hoped that by supplying some basic knowledge of law the gap between IR theory's engagement with abstract understandings of law and its reality will be narrowed and empowering IR theorists will be empowered to ask better and more demanding questions of law.

References

1 Smart, Carol, Feminism and the Power of Law (London: Routledge, 1989), p. 12CrossRefGoogle Scholar .

2 See piece, Nicholas Greenwood Onuf's, ‘International Legal Order as an Idea’, American Journal of Transnational Law, 73:2 (1979), pp. 244–266Google Scholar on the paucity of international legal theory and his attempt to answer the question of whether international law is really law.

3 Just such an approach is adopted by Armstrong, David, Farrell, Theo and Lambert, Hélène in their book International Law and International Relations (Cambridge: Cambridge University Press, 2007)CrossRefGoogle Scholar .

4 Shklar, Judith N., Legalism: Law, Morals and Political Trials (London: Harvard University Press, 1986), p. 109Google Scholar .

5 Of course, cases in court are only the most visible manifestation of the law in action. The law affects our daily lives in a myriad of ways including how you buy your house, drive your car or what information you read on the back of food packets. Most of us interact with law on a daily basis, being guided by it, rather than butting up against it.

6 Kairys, David, ‘Introduction’ in Kairys, David (ed.), The Politics of Law: A Progressive Critique (New York: Pantheon Books, 1982), pp. 1–7Google Scholar , at pp. 1–2.

7 There is considerable overlap between the popular conception of law and the rule of law. I discuss the rule of law below.

8 Shklar, Legalism, p. 35.

9 Ibid., p. 8.

10 Ibid., p. 95.

11 MacCormick, Neil, ‘Rhetoric and the Rule of Law’, in Hutchinson, Allan C. and Monahan, Patrick (eds), The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987), pp. 163–177Google Scholar , at p. 163.

12 This list is Lon L. Fuller's. See: The Morality of Law (New Haven: Yale University Press, 1969). See also Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986)Google Scholar . This idea of law has been attacked from both the right and the left. In F. A. Hayek's version of the rule of law it is only the minimum of rules needed to allow individuals to go about their business without colliding with each other, see Hayek, F. A., Constitution of Liberty (London: Routledge, 1960)Google Scholar . There has been a sustained attack on the concept of the rule of law from the left, which sees it as a mask for oppression and exploitation, and has developed into a separate debate. See Unger, Roberto, Law in Modern Society (London: Collier Macmillan, 1977)Google Scholar , and ‘The Critical Legal Studies Movement’, Harvard Law Review, 96:3 (1983), pp. 561–675, and Kairys, The Politics of Law.

13 Shklar, Legalism, p. 9.

14 Burch writes that: ‘I consider law a form of ideology and regard legal discourse as a form of social practice’. See: Burch, Kurt, ‘Property’ and the Making of the International System (London: Lynne Rienner, (1998), p. 70Google Scholar .

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16 Pocock, J. G. A., The Ancient Constitution and the Feudal Law (Cambridge: Cambridge University Press, 1987)CrossRefGoogle Scholar , see chaps 2 and 3.

17 There is some disagreement over when the idea of law peculiar to the Western world emerged. Berman argues that it emerged as a consequence of the Gregorian Revolution and the Investiture Struggle (1075–1122). The Church established its political and legal unity and its independence from emperors, kings and feudal lords and it is from this period that the idea of integrated legal systems emerged. See Berman, Harold J., Law and Revolution: The Formation of the Western Legal Tradition (London: Harvard University Press, 1983)Google Scholar .

18 There is debate over when capitalism can be said to have emerged. While capitalism truly grew and flourished during the nineteenth century the conceptual ground for its existence were laid down much earlier, in the seventeenth, and maybe even the sixteenth, century.

19 Burch, ‘Property’, p. 85.

20 Tigar, Law and the Rise of Capitalism, p. 20.

21 Locke, John, Two Treatises of Government with notes and introduction by Laslett, Peter (Cambridge: Cambridge University Press, 1988)CrossRefGoogle Scholar , bk. 2, chap. 5, para. 27.

22 William Blackstone, Commentaries on the Laws of England, bk 1, chap. 1, available at: {http://www.yale.edu/lawweb/avalon/blackstone/blacksto.htm} accessed on 1 December 2007.

23 Blackstone, Commentaries, bk. 1, chap. 1.

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27 Burch, ‘Property’, p. 78.

28 Ibid., p. 70.

29 Scheingold quoted in Burch, ‘Property’, p. 71.

30 Pocock, The Ancient Constitution, p. 16.

31 Common law draws abstract rules from specific cases whereas civil law starts with abstract rules which judges ten apply to cases. These two systems account for the vast majority of the world's legal system and both of them originated in the West. There are also some mixed systems like Scotland. International law derives from four sources: international conventions, that is, treaties; international custom; general principles of law recognised by civilised nations and, as a subsidiary means, the opinion and writings of expert jurists.

32 Pocock quoting Sir John Davies, Attorney-General for Ireland in 1612, The Ancient Constitution, p. 33.

33 Pocock quoting Davies, The Ancient Constitution, p. 34.

34 Burch, ‘Property’, p. 71.

35 Tigar, Law and the Rise of Capitalism, p. 9.

36 Ibid., p. 268.

37 Burch, ‘Property’, p. 81.

38 This comes from Punch and is quoted in Twining, William and Miers, David, How to do Things with Rules: A Primer of Interpretation (London: Weidenfeld & Nicolson, 1982)Google Scholar , fn. 9, p. 175.

39 Shklar, Legalism, p. 2.

40 This idea of story-telling comes from Anthony G. Amsterdam and Jerome Bruner: ‘Clients tell stories to lawyers who must figure out what to make of what they hear. As clients and lawyers talk, the client's story gets recast into plights and prospects, plots and pilgrimages into possible worlds […] If circumstances warrant, the lawyers retell their clients’ stories in the form of pleas and arguments to judges and testimony to juries […] Next, judges and jurors retell the stories to themselves or to each other in the form of instructions, deliberations, a verdict, a set of findings, or an opinion'. Minding the Law (London: Harvard University Press, (2000, p. 111.

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42 This is particularly pronounced in the Anglo-American common law system. The continental civil law system is more oriented to finding the truth though the process of classification remains the same.

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46 Ibid.

47 Quoted in Holland and Webb, Learning Legal Rules, p. 243.

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52 Twining and Miers, How to do Things with Rules, p. 313.

53 Holland and Webb, Learning Legal Rules, p. 148.

54 Obiter dictum is ‘a thing said by the way’: anything else said in a case that does not relate to the material, that is, important, facts of a case. Such statements are not binding.

55 Kairys, ‘Introduction’, pp. 1–2.

56 Shklar, Legalism, p. 10.

57 Ibid., p. 35.

58 Ibid., p. 10.

59 The case referred to as Brown was a collection of five cases which were heard together because each dealt with the constitutionality of racially segregated schools, with the exception of Bolling v. Sharpe (347 US 497), which dealt with the federal government's duty to respect racial equality. The other cases were: Gebhardt v. Belton (33 Del. Ch. 144 (1952)), Briggs v. Elliott (347 US 483 (1954)), and Davis v. County School Board of Prince Edward County (103 F. Supp. 337 (1952)). The Supreme Court's ruling on remedy, referred to as Brown II, was handed down on 31 May 1955.

60 Balkin, Jack. M., ‘Brown as Icon’, in Balkin, (ed.), What Brown v. Board of Education Should Have Said: The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decisions (New York: New York University Press, 2001), pp. 3–28Google Scholar , at p. 3.

61 Kluger, Richard, Simple Justice: the History of Brown v. Board of Education and Black America's Struggle for Equality (London: Deutsch, 1977), p. ixGoogle Scholar .

62 Balkin, ‘Brown as Icon’, p. 5.

63 Ibid.

64 Plessy v. Ferguson (163 US 537 (1896)). Plessy was a test case set up by the railway workers, who were opposed to segregation, and Homer Plessy. Plessy, who was seven eighths white, agreed to board a whites only railroad car in order to be thrown off by a porter who knew he was one-eighth black. It back-fired badly.

65 See Plessy v. Ferguson (163 US 537 (1896)).

66 Klarman, Michael J., From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford: Oxford University Press, 2004), p. 449Google Scholar .

67 The studies cited were widely derided, in particular Kenneth C. Clark's doll study. Here, black and white children were given a black doll and a white doll and asked to chose which one was the ‘good doll’, which had a ‘nice colour’, and so forth. Both sets of children favoured the white doll, leading Clark to conclude that black children felt ashamed of their colour and inferior to whites. However, Chief Justice Warren's opinion failed to mention that black children living in the segregated South had higher approval rates for the black doll, than black children living in the unsegregated North. The basic premise of the study, that segregation makes black children feel inferior, could not therefore be borne out by the study.

68 Balkin, ‘Rewriting Brown: A Guide to the Opinions’, in Balkin, What Brown v. Board of Education Should Have Said, pp. 44–76, at p. 49.

69 Derrick A. Bell, ‘Dissenting Opinion’, in Balkin, What Brown v. Board of Education should have said, pp. 185–200, at p. 198.

70 Bell, ‘Dissenting Opinion’, p. 198–9, emphasis added.

71 Because Brown concerned segregation in public schools and Plessy concerned segregation on railroads, Warren was able to leave Plessy untouched although the constitutionality of segregation was the central issue in both. This should raise some doubts as to the rigidity of stare decisis. Brown did not actually overturn segregation. Plessy was not actually overturned until 1957 in Simkins v. City of Greensboro (149 F. Supp. 562) and the first clear statement of it by the Supreme Court was not until 1970 in Oregon v. Mitchell (400 US 112): Balkin, ‘Rewriting Brown’, p. 48.

72 According to Home Office statistics, in 1977 the conviction rate for rape was 32 per cent, in 1987 it was 18 per cent, in 1997 it was 10 per cent and it was 5.7 per cent in 2006.

73 The Sexual Offences (Amendment) Act (1976) stated that sexual history evidence should only be admitted if relevant to the offence but was left up to judges' discretion. The extent to which a complainant can be questioned about her sexual history and behaviour was further curtailed by the Youth Justice and Criminal Evidence Act (1999). It stated that such evidence would only be admissible if sexual intercourse took place at or about the time of the alleged offence, or were so similar as to constitute a pattern of sexual behaviour. However, an exemption was added which ruled that while sexual history evidence was not relevant to consent, it was relevant to belief in consent. In other words, a complainant's sexual past will be admissible in court.

74 Lees, Carnal Knowledge, p. xxiii.

75 Gibb, Frances, ‘Rape case judges fail to abide by consent rule’, The Times (29 November 2007)Google Scholar .

76 In 1986 in Billam, the Court of Appeal explicitly stated that there were two instances which could not amount to mitigation: the victim's previous sexual experience; and where the victim exposes herself to danger by acting imprudently, for example, hitchhiking.

77 Temkin, Jennifer, ‘Prosecuting and Defending Rape: Perspectives from the Bar’, Journal of Law and Society, 27:2 (2000), pp. 219–248CrossRefGoogle Scholar .

78 The defence are given access to the medical examination of the complainant taken by the police doctor and this can include all manner of personal and medical history information that defence can use to undermine the credibility of the complainant but also to simply unnerve her.

79 Lees, Carnal Knowledge, p. xxi.

80 Gibb, ‘Rape case judges fail to abide by consent rule’.

81 From the first of twelve Lowell Lectures delivered by Homes on 23 November 1880.