Every law is an argument someone lost. Yes, this is abstractly true when we think about legislators grandstanding in the Parliamentary chamber, passing statutes cobbled together from compromises, but it is more literally true when it comes to common law. Unlike in civil law jurisdictions — which is most of the more rational world — judges in common law jurisdictions are bound to respect stare decisis, decisions from more senior judges made long ago. And they have to publish explanations so everyone can scrutinise their reasoning. Every legal rule in the common law system came out of a real-world dispute between at least two people, usually over land, or money, or ego, or principle.
Legal education sensibly focuses on these rules. Future lawyers have to know how to serve their clients, after all. But the details surrounding the dispute itself are sometimes absolutely bananas. One principle of contract law, implied assumpsit, comes from a 17th century case where a wealthy murderer promised to pay a messenger £100 to ride to the king and ask for a pardon. Law students learn the exception to the past consideration rule; they do not learn why Thomas Brathwait had feloniously slain Patrick Mahume in the first place, nor why he thought it likely the king would forgive him. Pulling on the details can reveal quite a lot about the society that the dispute emerged from. Omitting them leaves us all a little bit impoverished in our understanding of the law, and also a little bit more bored.
I want to write about these disputes. I am a former journalist who has decided to retrain in law. I’m originally from Alaska, I lived in Istanbul, and ended up in London, where I have just finished a law course and intend to practise as a barrister in the jurisdiction of England and Wales. In short, I have had a weird life. This gives me an unusual perspective on most things.
This newsletter is my attempt to increase public understanding on what the law is and how it works. (It is also, admittedly, a project to help increase my chances of getting a law job.) Most legal writing is intended for lawyers or academics, and as a result is somewhat technical to the average person. I want to bring my legal education to the people, and bring these disputes to life without sacrificing too much detail. In each post I’ll take a look at some headline issue or high-profile case, the political or social context the dispute, and show how it relates to the rough-and-ready solutions that common law judges are trained to make. I will, however, be writing from an uncommon perspective.