Henry Cecil’s Short Stories: Some Literary Reflections on Legal System and Judicial Process

INTRODUCTION

Law in literature comes across as a recurring theme in fictional and imaginative texts. While the cause behind such recurrence has been subject to much debate and discussion; what is certain is the close interplay of the two disciplines, which has now been accepted even by an initial opponent of the discipline, Judge Richard Posner.

Of the tripartite approach framework constituting the interdisciplinary intermingling of law and literature, “law in literature” is perhaps the most intuitive understanding among the law people. Reading is not an unknown province for us law people. But reading what? For many law people (including me), reading fiction is not a cup of tea. We are (either by chance, or by choice), more occupied into reading what I (and co-incidentally, Felix Frankfurter has called) would call the real stuff. Constitutions, statutes, law reports, law reviews, law journals, news, editorials et al form the rigid expanse of our libraries, and minds.[1] However, reading fictional and imaginative accounts does have a charm of its own. Of all fictional typologies on board, I can say that short stories carry the highest potential to intersect and make inroads into our “billable hours,” giving a breath of different air from the outside.[2] Since the idea of reading a story a day is not prima facie challenging to rob a lawyer of his productive hour (by which, it is to be noted, he is paid), one should read short stories, and perhaps a collection of them over a definite time-span.

Henry Cecil, who is otherwise well known for writing mind-grasping novels such as Brothers in Law (1955), No Bail for the Judge (1952), Sober as a Judge (1958), and Fathers in Law (1965) inter alia, has also written some non-fictional literature, notably The English Judge (1970), and his autobiographical account, Just Within the Law (1975). How much his thinking was “within the law” is a question that this review of his collection of short stories, that goes with the title of the first story, ‘Portrait of a Judge,’ will seek to discuss. Henry Cecil Leon was called to the bar in 1923, and was appointed as a County Court Judge in the year 1949 and remained so till 1967. Of his works it has been said that:

“His books are works of great comic genius with unpredictable twists of plot which highlight the often absurd workings of the English legal system.”[3]

Representation of legal principles, institutions, systems, manners, ways, customs, ideas, events, and mores in fictional works carries with it both, an autonomous experimentalism and a cautious responsibility. Perhaps you’d be wondering that sans beginning to talk about the book at hand, I have already introduced two new phraseologies in an already over-verbose landscape that characterizes the law and literature movement. I would differ. Taking cues from the history of law and literature movement, one realization that is apparent the most is that authors of literature who take the onerous burden of writing about the law, can extend and tweak the mainstream understanding of the law, but must not misrepresent it or carve a straw man to throw stones at.

For a writer of fictional literature, there is no dearth of potential stories and plots to pick and choose from the process of laws and justice administration; and what to say of a law person. Having dealt in the law for more than forty years, first as a barrister, and then as a county court judge, Henry Cecil brings with most of his short stories, a peculiar twist, which is hidden until the very end of his stories, which when revealed, resounds and reverberates one’s (un)awareness with the legal system and the judicial process.

A “COLLECTION” OF SHORT STORIES: LIKE BEADS IN A GARLAND

With twenty-two short stories, Henry Cecil’s 1964 collection, when read in toto is reminiscent of how individual beads can be needled into a comprehensive garland, which in turn, more or less, may subsume within it, the fundamental qualities of a legal system. In its classical sense and theoretical paradigm, a legal system is a means to an end; where the end to be achieved is that of justice. While some have questioned the need and purpose of laws, it is widely held that legal processes ensure stability and regulation in the society. For this to be a realistic aim and goal of the system, there must be a whole range is structures and procedures in place which cultivate an understanding of the rule of law. Legal resolution of disputed questions is a fascinating process, which is very well capable of cogent literary exposition.

The road to the judicial determination of cases begins with a cause of action. This is the foundational stone of any litigation. It is an act or an omission by someone which entitles the other party to move a court of law. Near Miss[4] is mainly about two aspects. First is the “dirty game” of politics through which laws, regulations, policies are enacted. A legislator, Giles Kenwood, MP, who is a “man of integrity” ideates that if each and every one of the public begins to take due precaution and safety, on roads, the number of accident deaths occurring would drastically plummet. Through his campaign, he was able to persuade the government to go for a “No Accident Day.” Such successful experimentation could make a strong case for Mr. Kenwood to be appointed as the Minister for Transport in the near future. However, on the very day our protagonist had a near miss, and almost crushed a cyclist. But, nothing happened then. However, the majority of the story revolved around his fear and anxiety of getting apprehended. He thinks that the victim must have noted the license plate of his car; and if not fully, then it must take some days for the police to shortlist unto him through the hit and trial method. At last, the police did come to his house, only to seek an alibi for the cyclist who was arrested in a case involving murder! Cecil must have experienced the ways common folk fear to tread the law, and their fears of the state and the police; which he represented in his portrayal of the fears of the legislator. He brought this home through this story in a manner beyond criticism where a legislator has to have sleeping pills, only to realize how fate connected him to the cyclist, a poor man caught for someone else’s murder!

Let’s suppose that Mr. Kenwood had been apprehended for a murder in Near Miss. In such a scenario, he gets all his ‘due process’ protections such as audi alterum partem; as per which no prisoner should be condemned unheard. Once you have a case onto yourself (or even if a citizen wants to plaint or writ against someone), you are required to engage and instruct a lawyer (solicitor, in English law). No Expectations[5] is a story around the classic concept and the consequent notions underlying a typical client-attorney relationship. This is a very “special relationship,”[6] guided by principles such as confidentiality and non-admissibility of evidence. You can be absolutely frank with your lawyer; but mind that after all he is engaging in your instruction only to make his “pockets deep” or to extract yours![7] In fact, a quite a learned Lord Brougham once observed that lawyers are “learned gentlemen who rescue your estate from your enemies, and keep it to themselves.” In this story, a nurse, Sister Angle approaches the best known firm of solicitors in the town, Messrs Mendip & Merton to get her patient Mrs. Gloster depose a testament, that is, to make a will. She hands over to the solicitor a sealed envelope containing the old lady’s instructions. However, the solicitor is not convinced by the sister’s overtures, which raise his eyebrows as to the authenticity of the instructions. Was the sister eyeing notoriously at the estate? No, in the middle of the story, it seems that all the solicitor’s worries seem baseless and rejected. There is on the face of it, the proof of a smooth succession to the old lady’s estate. However, at the turn of the narrative, the solicitor is proved right, when the police discover that the sister had a long record of murdering such old people when they were at the verge of their death! The story also entails a discussion of the modus operandi of the sister, and the way she outsmarted people by not falling trap to the classic popular notion where criminals get caught by virtue of their greed, and failure to satiate. With a dose of lesson on criminology, Cecil closes the story by playing a pun on the word “executed” to show the execution of the old lady’s will, alongside the execution of the Sister for the offences of murder; a metaphor where legal event has extra-legal significance.

There’s a common understanding that lawyers, as a class of professionals, in their transactions outside their profession, in the social stream, are peculiar and outstanding. It is not difficult for a non-lawyer to not be awestruck by a lawyer’s presence. It is this dimension of the law people, which Cecil captures in his story, Proof,[8] where the protagonist, who has had his own set of failures in his cut-short legal career (if it may be called a career at all) recollects meeting at a hotel bar a “pompous self-satisfied little lawyer from London.” As he was feeling dejected by the lawyer’s presence, to whose community of profession he had been particularly averse to, there came in two strangers talking as to how their recent trek had been a waste of time. Then, an old man who until then had not received his due attention, retorted as to how there was a more tragic story that he had to share about a detective and a possible criminal lost their lives in a remote forest by falling over a mountain. As everyone in the group lamented on the loss of energies incurred in the futile transaction to save one person’s life therein; the lawyer, trained in courtroom mannerisms interrupted:

Very interesting, but d’you suggest that the story is true? … The story can’t be true…as no one saw them die and they could have told their story to no one, you couldn’t possibly know that it happened as you have told us.”

John Grisham’s The Firm[9] is perhaps a classic case of representation of the legal profession; where American legal realism comes into play, as a firm is shown to be a mechanism to siphon off illegally earned money.[10] Posner has an interesting remark to make in this regard:

Just as in some cultures a woman is either a saint or a whore, so in American popular novels a judge or a lawyer is either a saint or a crook -usually the latter.”[11]

This concluding interjection by the lawyer, is described as his “triumph” by Cecil. It does not come as much surprise, since lawyers are known by the non-lawyers as people for whom it is not difficult to dominate and triumph in day-to-day transactions and conversations. Their reliance on technical aspects such as proof and evidence are often made fun of.

From legal interactions and processes, we move on then to the judicial process and court system. What happens in courts, makes up a great amount of “drama movementr-verbose landscape that characterises -spanrpretation to supplement my awareness of the legal system and the judicial ”[12] for those who strive to write literature. But some scholars in the law and literature movement have pointed out that the focus on law or court procedures is only a means[13] to focus on the large looming issue or question that a fictional writing seeks to bring across.[14] For them, To Kill a Mockingbird is a “good-natured didactic entertainments intended to promote good race relations and more broadly, democratic and egalitarian values.”[15] The hostility towards lawyers in popular culture has a long history attributable to the likes of Chaucer, Shakespeare, and Dickens.

But then, my response is: isn’t the same true of the law itself? Law, on its own, is nothing except a discipline and process regulating and facilitating the “constitutive other” when it is “cognitively open[16] to other fields of human life such as society, politics, economics and media. Thus, any literary imagination of the law in the form of court proceedings will have a larger looming issue behind the “brooding spirit” of the law.

The idea always seems to provide the law with an issue to play with and focus resolving. Thus, the criticism to the law and literature movement is just as much true as it for the discipline of the law itself; that it is an appropriating, a discipline dependent on other disciplines. It would not be wrong to say that representations of court proceedings in fictional literature does inform us on what court processes are perceived as by non-lawyers, or by lawyers when they are not exactly immersed into the law question, and are writing from a detached point of view of an author. Thus, Cecil’s stories may be termed as what Ronald Dworkin has called “creating while interpreting,[17] when he steps into the shoes of a critic; detached from his role as primarily a law person in action.

In Mock Trial,[18] Cecil combines what have been seen as threats to the independence and autonomy of the judiciary, with the complex and well-defined procedures prevailing the the judicial process. When a judge’s daughter is kidnapped for securing acquittal of a prisoner, the policeman, who is the narrator, comes up with a plan to kill two birds with one stone. He enacts a mock trial, where it seems till the middle of the story, that the prisoner is acquitted. However, the reader comes to know that tis is not the case, when he is re-arrested and brought back to court for the pronouncement of the verdict by the jury. This mock trial was enacted keeping in mind one small detail about the jury trial procedure, that the jury, through the foreman must deliver the verdict. In the story however, to avoid the judge losing her daughter, the policeman enacted a “mock” where he replaced the actual jurymen with his people and staff. Once the actors delivered the verdict, the judge’s daughter was released and taken to safety. But, when the prisoner was brought back to trial, the real jury, surprisingly acquitted the prisoner! What a twist of tale yet again. But the narration and style are phenomenal. When the putative jury of policeman delivers a verdict of “not guilty,” the American lawyer who is listening to the narration along with the reader of the story, is at once amazed as to whether a judge can sum-up to secure an acquittal to meet extraneous considerations such as saving his daughter? The divergence between natural law and positive law has always been a fascinating one in the discourse of law and literature. The delivering of verdict by a putative jury might be bad in positive law; but the overall scheme of affairs and the factual positon make it seem good in natural law; and thus a parallel may be draw between Mock Trial and the “historical jurisprudence” in Euripides’ play in Hecuba.[19] Richard Posner has called such dichotomies as “antinomies of legal theory”.[20]

Who does not like to secure a judgment beneficial to his or her interests? But to what extent does one go on to achieve a judgment that furthers his interests? Does one go on to bribe the judge? Cecil’s story Striking the Balance[21] very well captures the common notion that justice can be bought, and purchased through intermediaries such as the protagonist of the story, Tommy Newcastle. What is as insightful as remarkable is the way in which the story begins by what Cecil has termed as the “examples which show how careful both judge and jury are to see that their reputation for integrity remains as high it is.” These examples relate to when a juryman recuses himself from the case for having met or been acquainted with the prisoner or the mention by a judge that he has some public shares in a company which is one of the parties in the suit before him. The reader, while at first may be disgusted to know how Tommy mends his way with the justice delivery, but is appeased and satisfied when the story ends with re-instating their faith in the English legal system’s integrity and credibility as a fair and just mechanism.

In a landmark English case on a similar subject, R. v Sussex Justices, Ex parte McCarthy,[22] Lord Herbert, CJ for the High Court gave currency to the aphorism that “Not only must Justice be done; it must also be seen to be done“. And it is here that I wish to place Henry Cecil’s writing of this story into a perspective. As a judge, a person within the system, he could not have over assumed his powers as a critic, and bombarded the English legal system with scandalous revelations. But, whether Cecil’s fictional account in Striking the Balance is true or rather giving into normative claims of impartiality of the system of which he was a part, is a question the answer to which nobody except Mr. Cecil would know.

If not bribing, then perhaps “bench-hunting,” or “forum shopping” across jurisdictions is the most commonly observable practice among attorneys to find a favorable judge who can hand in a favorable judgment to his client. This is more pronounced in common-law jurisdictions where the court does not sit as a whole, but disjointedly as different judges or benches who/which pronounce the judgment on behalf of the whole court. The Limit[23] is partly reminiscent of what Posner in his book has termed as “logic of revenge,[24] where a litigant (Mr. Rufus Catchpole) who has suffered from an adverse judgment takes a vow to not let that judge, Justice Mr. Broadbent decide any other case until his superannuation. To this end, he stages a false case (Tiptree versus Ansthuruther) before him, where he has two parties who are fighting on perhaps every or any available issue or question of law. The strange and mind-blogging point about the story is that the judge had an option to retire before the case had even started. It was all about his preference. Acting prematurely (which incidentally, quite a few lawyers do!), it was quite ironic to his intentions that multi-millionaire Mr. Rufus Catchpole’s staged litigation actually became the cause for Mr. Justice Broadbent to not to retire, and serve on the court for three more years! The irony resounds the strange ways of vexatious litigation. The story, perhaps wanted the readers to realize that judges have their own thought process, which will always remain a step ahead of the lawyers and the common litigants. However, the plot is quite interesting for anyone to go through if he is interested in courtroom lawyering, and its mores and folkways.[25]

Similar however contrasting to the aspect of delays and backlog found in The Limit is the insight into a judge’s mind in granting adjournments captured very aptly by Cecil in his story The Application.[26] There one Mr. Justice Frinstead, who known for vehemently dismissing applications seeking adjournments by barristers arguing before him is fumbled waiting before his Death (which has been personified) to whom he makes an application to adjourn for the frank reason he supplies to live longer. This is then paralleled to the next morning when he grants an application for an adjournment by a young lawyer frankly citing the reason that he has not prepared for the case. But, the reader is not astonished until he gets to know that Justice Frinstead dies the very next moment! The connections that Cecil makes are astonishing. Apart from a good literary sense of a twist in the tale, and a rapidly moving narration; the story vividly captures the questions encountered by lawyers and judges alike when adjournments are debated and discussed.

Lawyers and judges share a frank yet restricted relationship. The ways in which they interact and engage in a dialogue provide remarkable insights into the judicial process. Although The Nightmare[27] seen holistically may better fit into what some scholars in this discipline have termed “literary indictments of legal injustice” or the “law as literature” approach where it is believed that imaginative literary works are also reflective of “cultural artefacts” and sociological facts such as of capitalism, exploitation and oppression. Although this does not come as explicit as it comes in Shakespeare’s Hamlet through the soliloquy beginning with “To be or not to be, that is the question,[28] Basil’s life in the nightmare is one which might push him or is just at the verge of pushing him to contemplate suicide. However, I focus more on that part in The Nightmare where the prospective employer, the Secretary of the Bedside Manor Property Company Ltd. enlightens the half-protagonist Basil Merridew of how and why the bad debts which their tenants owe to them as uncollected rents (as arrears) are in fact not recoverable by the court processes by way of recovery suits. There the secretary recalls the court engagement of their solicitor, Mr. Bump with the county court judge. It is remarkable in the sense that the judge has no option but to adjourn the case; which makes the secretary believe that the oppressed tenants never be at the receiving end. What is also parallel to real life litigation practice is how and why the company gets to engage and instruct Mr. Bump. He goes on to say on record that “Bump…isn’t much good but he’s the nephew of our managing director and we have to use him.” The other aspect of this story is how the policeman distrusts Basil’s claim (a few days after he was on the job) that someone robbed him of his collection at the end of the day. This is a poignant reminder of how the law and legal structures (including the police) operate in favor of dominant classes and against poor people like Basil. What is also insightful of this story is the relevance of different dichotomous sides of the same coin which a person may stand. This ideological standpoint, which people choose to take has a strong influence on their life choices. For lawyers, taking sides is a matter of everyday professional workspace!

The Patient[29] is a rather comical story, where the protagonist, formerly Smith, is a trained dentist, and is at once sued for negligence. Mr. Smith treated the case rather foolishly, since his case, as Cecil points was not “cast iron.” The narration of his cross-examination by the plaintiff’s Queen’s Counsel is hilarious and half-witted. However, after losing the suit, he changes name to Lionel Parsons and restarts his practice as a dentist. The order of the payment of damages by the judge Mr. Pantin against Smith dentist can be seen as an instance of the practice of “jurisprudence of prudence,” where he does not pass an injunction against the dentist; so as to fulfil the motive of economic efficiency.[30] This comes under criticism from legal formalists, but nonetheless frequently practiced by the judges. The dentist however retains a deep grudge against that Counsel, who according to him, asked “ridiculous things…and didn’t knew the first thing about the case.” However, the latter half of the story sees a High Court judge, Justice Mr. Charles seeking appointment from Mr. Parsons. He is very excited since he does not have much business anyways. Everything goes on fine with the appointment, including the dentist sharing his memoirs of courtroom with the judge. But, after the judge retreats thanking him for seeing him at a very short notice indeed; his secretary Miss Croombie, who was too good a secretary for the crooked dentist he was, told him that the person whose teeth he had just mended was the same Queen’s Counsel who had cross-examined him before Justice Pantin; and now he had been elevated to the position of judgeship. As a reader, I was expecting more of it to continue in the form of a further engagement between the new judge and the dentist in the form of disagreement on the quality of treatment. But, as it is with short stories, they often leave you with expecting something more; and you realize the open-endedness and cherish filling the void with whatever pleases you. This leaving of a void in the end is a recurrent aspect to be found in Henry Cecil’s stories.

The serious business that lawyers engage in understood in terms of legal principles and canons of jurisprudence. Henry Cecil’s stories cur across, and intersect at multiple levels of this legal framework. In I Killed Gordon McNaughten,[31] the protagonist, who is also the narrator, goes on to explain the precarious situation his friend Jimmy; who after he had been acquitted of murder on his alibi, wrote an article in the local newspaper titled “I Killed Gordon McNaughten.” It created headlines. The principle that Cecil plays on is that of autrefois acquit (French for “previously acquitted”), where a person cannot be tried for the same offence twice. Jimmy was arrested, tried for perjury (making false statements in court), and obtaining money on false pretenses. He was convicted. But the turning point is that, he was indeed innocent; and the remarkable aspect is the way in which the truth unfolds on a statement by Jimmy to the author that he knows that Jimmy is innocent, only because the narrator confesses in the last line of the story: “Quite simply, because I killed Gordon McNaughten.”

The Wanted Man[32] is another story with a nail biting plot where a person known by the name of Mr. Patridge lived under mysterious circumstances in a neighborhood. Nobody knew of his past, or of his work, or of his family. But he was a generous man with pleasant sense, and who “took advantage of every opportunity of being of some use, however slight, to anyone who came his way.” Discussion about the crime (as is common with many people) was a frequent activity for them. Once a Colonel tangentially remarked of a prisoner who had been missing for the past two years, to which Mr. Patridge jokingly remarked: “It’s not me.” However, later people drew a possibly true inference, but they did nothing about it. After a year, the escaping prisoner, George Brown was caught in London, as shown by the news. Those who had developed an antagonism towards Mr. Patridge thinking that he was that very escaping prisoner, decided to go with a bottle of beer and champagne to apologize. They go to his place, only to be greeted by a detective inspector investigating George Brown’s latest abode before being arrested! What an unpredictable and seemingly co-incidental end to the story that could have been otherwise been more obvious.

Judges occupy a special place, not only in the legal system, but also in the society. As dispensers of justice, they must be fair, reasonable, independent yet accountable. The title of the collection of short stories goes by the title Portrait of a Judge. Perhaps of all actors in the legal system, qualities and traits of judges have been the most frequent subject-matter of discussion. It is but obvious for Cecil to have expounded some qualities that judges must possess, and which judges ought to stand by. It does not seem a mere chance that the opening and closing stories of the collection, both have as their protagonists, as judges.

Portrait of a Judge[33] is a story about the oldest Queen’s Bench judge who did not seem to have any intention to retire anytime soon, Justice Mr. Pantin. He had a record of passing severe sentences, though in a reasoned fashion. All in all, he had been a fair judge. Now he was crippled, with gout in both his feet, making him immobile for the most of his time. He was off for a weekend to the country, retiring to read, eat and meditate until his caretaker Mary came back from London. Just when he had finished reading an article in the Law Quarterly, a stranger gave a surprise visit to the judge, who was sitting in the garden. Mr. Justice was immobile for the moment, compelling him to listen to the visitor. The visitor began by referring the judge to the fact that some years back he had sentenced one of his friends to death; and he attributed his conviction to the judge’s summing up to the jury. He had two things to do with one in the alternative of another: to make the judge realize of his error in judgment; and if he did not concede to it; to kill him. The judge recollected, and made an intellectual re-visit to the case to realize that he had correctly applied the law while convicting Frank Turner. The facts of the case at hand are apparently very similar to the very next story in the collection, I killed Gordon McNaughten, but with changed names. Then the visitor goes inside the judge’s house to get a shotgun. Cecil tries to show that criminals are in fact, smart. And this one had foreseen himself convicted if he did not take enough care to leave no evidence of this transaction. Thus, he planned to hand over the shotgun to the judge, and make it appear that the gun went off in a duel between the two of them and the bullet hit the judge as an accident. But, Cecil does not stop here. How can he let a judge be killed? His judge Justice Mr. Pantin is smarter than the criminal and kills the man when he has control over the shotgun with all his strength! One just begins to sympathize with the poor old judge when Cecil’s master stroke ending takes the reader in awe. Who said that judges need the popular sympathy, as in the words of Alexander Hamilton in his The Federalist Papers, judges “lead by persuasion, not coercion, and by example rather than regulation.”

The last placed story in the collection, The Wife in the Train,[34] in its plain procedural construct, is notable for its emphasis and attention to the detail. Till the very last lines of the story, the reader is hell bent to assume that it is the wife of a particular convicted person who is mentioned in the title; only to realize his shortfall that it was the wife of the barrister in the story, of Mr. Blaize. The story begins with a courtroom scene where the foreman of the jury is about to deliver the jury’s verdict; seemingly disturbed by the abrupt entry of a beautiful young woman.[35] The verdict is delivered convicting the accused. Thus Judge at the Old Bailey is said to be a fair judge, who “did not summed up one way or the other…he felt impartial.” What becomes contentious now is the question of punishment. The judge has the liberty to either impose a fine on the guilty or sentence him to imprisonment. Then Cecil goes on to describe the attributes of the Judge, Mr. Brace; whose worst fault he says is “not liking to be corrected.” He understood his fallibility, but would not like to be reminded of it by someone other than himself. Of this Cecil has the following to say: “No doubt it flowed from conceit, which is an inevitable occupational disease of the Bar as a whole.” (Emphasis supplied). The young and confident counsel for the defendant, Mr. Blaize stood up to argue for making a plea that the interests of justice would be better served by imposing a fine.[36] This was not acceptable to the judge, who held onto an incorrect position that a rich man cannot be made to pay fine, and escape imprisonment. Sir James Fitzjames Stephen had asserted that it is “highly desirable that criminals should be hated.” He has vehemently argued that imposing fines against affluent criminals would fail to “quench the thirst” of public for vengeful justice since it lacks the idea of a suffering by the criminal.[37] Here, the literary tool put to use by Cecil is of a conversation between the barrister and the judge; which has its far-reaching consequences in the later part of the story. This was and is a wrong view of the law (and even theory and logic) of punishment. But, the order of the day was that the young fellow had to serve in prison for twelve months. After six months had passed, the judge encountered the same young woman who had entered the court on that day. The woman bravely came to terms with the judge, and by the end of the journey, Justice Brace was convinced of his fault, and conceded his mistake and also undertook to apologize to the young attorney whom he had not behaved properly with in the court. The reader flips the page to end reading the collection, only to learn that the woman was the wife of the young counsel, Mr. Balize, when all three of them bump into each other at garden party at one of the Inns of the Court!

 Another tangential idea that the story explores is of false implication of innocent people in the commission of crimes. This comes live when the wife threatens the judge to comply with her request lest she should raise an alarm of sexual harassment by a judge!

Whether something of this sort could be achieved in an actual set up is not subject to much debate. It is very difficult to get along and ask judges to follow a particular line. Imaginative literature in my opinion, gives this autonomy to correct the wrong positions of law taken by the courts. One may wish it were so easy to correct the “wrong precedents” set by courts of the past!

CONCLUSION

Thus, what is perhaps the best quality of Cecil’s short stories is their open-endedness and leaving a void to be filled only with the reader’s conscious awareness of the law and society. In this sense, the reader is born with the “Death of the Author.”[38] This is uniquely the case with short stories due to the structural limitations of writing in that format. Coming to the literary appraisal of legal representation; I am of the opinion that the short stories by Henry Cecil capture the legal system’s virtues and vices through literary tools and instruments such as twists in the tale, unpredictable plot, attention to the detail, personification, usage of metaphor and focus on the identities. Reading these stories has been what George Eliot expressed as “extension of [one’s] sympathies,”[39] in a sense wherein my interpretation, guided by Dworkin’s “Aesthetic Hypothesis,” resulted into reading the literary text to find the best possible interpretation to construct my critical awareness of the legal system and the judicial process.

Lawyers therefore must open themselves to cognition from other disciplines; so as to cultivate a humanized understanding of the law. To be more aware is always better; and lawyers are no exception to this rule. Talking of exceptions to rules, we go back to what Posner has termed as the “antimonies of legal theory”!


[1] James Boyd White, Reading Law and Reading Literature, 60 Texas Law Review 415-445 (1981-1982). He argues that reading such material is “essential” to a lawyer’s work.

[2] Felix Frankfurter, Associate Justice, U.S. Supreme Court in his letter to M. Paul Claussen, Jr. (May, 1954), In The World of Law: The Law As Literature, 725 (Ephraim London Ed., 1960), says that :

No less important for a lawyer is the cultivation of the imaginative faculties by reading poetry, seeing great paintings … and listening to great music. Stock your mind with the deposit of much good reading, and widen and deepen your feelings by experiencing vicariously as much as possible the wonderful mysteries of the universe, and forget all about your future career.”

[3] Henry Cecil, Portrait of a Judge and other short stories (1964).

[4] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 99-113.

[5] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 18-30.

[6] “The Special Relationship” is the unofficial term in vogue for the exceptionally close political, diplomatic, cultural, economic, military and historical relations between the United Kingdom and the United States. Reference here is to the legal/juridical equivalent of this relationship between a client and his attorney.

[7] See the literary depictions in novels such as The Firm by John Grisham. For an academic discussion on the topic See David Ray Papke, The Impact of Popular Culture on American Perceptions of the Courts,82 Indiana Law Journal 1225 (2007), and Victoria S. Salzmann and Philip T. Dunwoody, Prime-Time Lies: Do Portrayals of Lawyers Influence How People Think about the Legal Profession?58 Southern Methodist University Law Review 411 (2005).

[8] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 148-152.

[9] John Grishan, The Firm (1991).

[10] Posner also notes that Grisham’s most recent novel, The Appeal (200) is perhaps a better depiction of the problems faced by the American Legal Realism. See Richard Posner, Law and Literature, 3rd edn. (Harvard University Press, 2008), ‘Ch. 1: Reflections of Law in Literature’ at p. 57. Thus, in my opinion, suggests a growing maturity to recognize that literature has, at the very least, started depicting law and legal processes accurately.

[11] Susan Bandes, We Lost It at the Movies: The Rule of Law Goes from Washington to Hollywood and Back Again, 40 Loyola of Los Angeles Law Review 621 (2007).

[12] It is noted that Richard Posner disagrees with some scholars drawing a parallel with Aristotle’s finding dramatic appeal and significance in tragedy to the spirit of law, which he believes has no dramatic value. See Richard Posner, Law and Literature, 3rd edn. (Harvard University Press, 2008), ‘Ch. 1: Reflections of Law in Literature’ at p. 34.

[13] For Posner, means is the “bait” or the “tease” like in Pudd’nhead Wilson, “in the sense that you think they are going to be about law but discover upon reading them that legal theme is just a bait.” See Richard Posner, Law and Literature, 3rd edn. (Harvard University Press, 2008), ‘Ch. 1: Reflections of Law in Literature’ at p. 36.

[14] Richard Posner has argued in this vein, exemplifying James Gould Cozzens’s novel The Just and the Unjust (1942) as not being directly about the law, but about political philosophy. Similarly, he is vehemently against reading law into Hamlet or Iliad, which capture the phenomenon where “youthful idealism is tempered with realism through a series of crises” which happens to be projected behind the apparent veil of legal process. See Richard Posner, Law and Literature, 3rd edn. (Harvard University Press, 2008), ‘Ch. 1: Reflections of Law in Literature’ at p. 36.

[15] Richard Posner, Law and Literature, 3rd edn. (Harvard University Press, 2008), ‘Ch. 1: Reflections of Law in Literature’ at p. 53.

[16] Niklas Luhmann, Law as a Social System, Trans. K.A. Ziegert, (Oxford University Press, 2004) at p. 498; N. Luhman, A Sociological Theory of Law (1985).

[17] Ronald Dworkin, Law as Interpretation, 60 Texas Law Review 527-550 (1982).

[18] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 181-190.

[19] William Arrowsmith’s translation of Hecuba in The Complete Greek Tragedies, vol. 3: Euripides 495 (David Grene and Richmond Lattimore eds. 1955).

[20] See Richard Posner, Law and Literature, 3rd edn. (Harvard University Press, 2008), ‘Ch. 3: Antimonies of Legal Theory’ at pp. 124-169. Such antimonies, he notes “inform a number of distinguished literary works that constitute in the aggregate, a supplemental course of reading, of unsurpassed vividness, to the philosophical and legal literature of jurisprudence.”

[21] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 153-165.

[22] [1924] 1 KB 256; [1923] All ER Rep 233.

[23] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 166-174.

[24] Perhaps in a slightly different and also a dimmer light, OW Holmes’ inference that the law grows out of revenge can be applied to this particular short story. See Oliver Wendell Holmes Jr., The Common Law, at pp. 2–25 (1881).

[25] “Binder and Weisberg offer…an example of how one can read a trial to discover the social forms, rituals, and mechanisms of meaning that underlie its apparent function.” Richard Posner, Law and Literature, 3rd edn. (Harvard University Press, 2008), See p 13.

[26] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 56-60.

[27] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 122-141.

[28]To be, or not to be” soliloquy reveals a mind that sees both sides of every question and devises ingenious rationalisations for inaction. More than a habit of mind is involved.” See Richard Posner, Law and Literature, 3rd edn. (Harvard University Press, 2008), See ‘Ch. 2:  Law’s Beginnings’ at p. 111.

[29] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 68-81.

[30] This is a major theme of the book Richard Posner, How Judges Think, (Harvard University Press, 2008).

[31] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 13-17.

[32] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp.175-180.

[33] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 1-9.

[34] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 191-206.

[35] The participants in the story are an audience, separate form the reader; and constitute meaning making through engagement at the internal level itself. Richard Posner, Law and Literature, 3rd edn. (Harvard University Press, 2008), See ‘Ch. 1: Reflections of Law in Literature’ at p. 34.

[36] Whether we can conclude that vengeful feelings play an important role in the administration of law and justice even today is a debatable proposition. See Oliver Wendell Holmes Jr., The Common Law 2–25 (1881).

[37] Stephen, A History of the Criminal Law of England, vol. 2, p. 82 (1883). See also Steven Eisenstat, Revenge, Justice and Law: Recognizing the Victim’s Desire for Vengeance as a Justification for Punishment, 50 Wayne Law Review, 1115, 1165–1168 (2004).

[38] Roland Barthes, The Death of the Author, Image, Music, Text, transi. Stephen Heath (New York: Hill & Wang, 1977), pp. 142-14.

[39] George Eliot, The Natural History of German Life, Essays (Edinburgh, 1884).

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