<i>Lawyers and the Rule of Law</i> By AndrewBoon, Oxford: Hart, 2022, 576 pp., £90.00

In the nineteenth century, Sir John Seeley pronounced that ‘[h]istory is past politics; and politics present history’,1 which effectively summarizes Andrew Boon's thesis in this extensive history of the rule of law. However, the history is unclear. It is replete with ambiguity, double dealing, histrionics, and sociological cavilling. It embodies Charles Lindblom's representation of decision making as the ‘science of “muddling through”’.2 People make policy under heavy constraints of time, money, and other resources. That we have something called the rule of law is occasion for surprise rather than expectation. Boon's book, by analysing many examples of struggles that contain elements of the rule of law, shows us that the concept is eternally contested and something that we can never take for granted, no matter how modern or sophisticated we consider ourselves. Boon has written a social history of the rule of law and the role of lawyers in it. What distinguishes his work from the many others on the subject is that he has taken a more empirical approach rather than the usual philosophical meditations of Jeremy Waldron, John Rawls, or Joseph Raz.3 Legal philosophers have sought to distinguish the rule of law from justice, parsimoniously define it (the ‘thin’ version), or have it embrace human rights and more (the ‘thick’ version). Tom Bingham went further, outlining a series of principles underlying the rule of law and even having a centre for it in his name,4 but even he said that it remains an ideal.5 In the manner of Karl Llewellyn, who refused to define law when researching the legal folkways of the Cheyenne,6 Boon traverses the rule of law topology, mapping each part but never settling on a particular definition. To be fair, one can say that he ultimately veers towards Bingham's version of the thick ideal. This book is about the journey and what Boon encounters in time and space; and it is about sites of contestation and their temporary settlements. Boon has a particular method for undertaking the journey that he prescribes for the traveller. Whether or not you agree with him, the journey is exciting and at times bewildering. As regards the book's method, it is essentially a sociohistorical study of a set of ‘core’ jurisdictions – the United Kingdom (UK), the United States (US), New Zealand, Canada, and Australia – from the Enlightenment to the present day. Each of the four parts is organized around a different theme: government, private practice, professionals, and futures. Two points are worthy of mention. First, even though there are five core jurisdictions, the majority of the book analyses the UK while the others are accorded less attention; given space constraints, I will not discuss them here. Second, though the book occasionally includes material from civil code jurisdictions, it largely ignores them, just as it ignores most of Asia, Africa, and Latin and South America. I suspect that these omissions reflect the author's limitations and intention to keep the book to a manageable length, but there are consequences, to which I will refer later in the review. I will preface this by saying that every element of the book is contestable: its mode of history, its reach, its exclusion of alternative literatures on the Enlightenment, and the manner in which it presents material. Pointing out that these are essentially contested concepts, to adopt W. B. Gallie's phrase,7 is not a judgement on the quality of the book but an attempt to show what it is doing and not doing. Part 1 covers government, which is then subdivided into chapters entitled ‘Revolution’, ‘Constitution’, ‘Execution’, and ‘Institution’. The theoretical frame for ‘Revolution’ is the law of nature and how it needs to be reframed by setting Thomas Hobbes and John Locke in opposition to each other. Boon then provides a sweep of disruptions in British history from the Norman Conquest, through the Magna Carta and the Civil Wars, to the Glorious Revolution. For each period, he discusses institutional constraints – such as the role of parliament, the rise of the Inns of Court, and the courts – that were weak or strong at the time. In ‘Constitution’, he pits Hobbes and Montesquieu together, noting that the latter emphasizes the judicial function as a restraint on despotism by deciding conflicting rules. Boon intermingles descriptions of British attempts at constitutionalism with those in the US, where a written constitution emerged. The rule of law played a significant role in both, but the British version remained opaque and remote from people as compared to the US constitution, which opened with the words ‘We, the people’, though many of the ideas were drawn from the English common law. One of the key tasks of a constitution is to diffuse power, which it can do by separating functions such as executive, legislative, and judicial. In the US explicit separation kept the functions in check, whereas in the UK the boundaries were fuzzy and each function attempted to encroach onto the others’ turf. According to Boon, the British judiciary increased its power and authority with the rise of judicial review and human rights, and the UK's entry into the European Community with the pan-European jurisdiction of the European Court. He discusses a number of cases in detail to support his arguments. All of this has become further contested as the executive has attempted to rein in judicial power by restricting access to judicial review and the European Court through Brexit. In ‘Execution’, Boon uses Alexis de Tocqueville to question the multi-faceted role of the Lord Chancellor: politician, judge, speaker of the House of Lords, and occasionally prime minister. Other hybrids include the Attorney General and the Solicitor General, both of whom evolved their legal and managerial functions over time. Their allegiances shift from judges to government to parliament, again reinforcing the ideal of muddling through. Boon gives the example of the Attorney General's advice to the government on the legality of the Iraq War. Should it have been public? Did the public have the right to know? Even after the Constitutional Reform Act 2005, the duties and responsibilities were not appropriately established and so the roles of the Attorney General and the Solicitor General in upholding the rule of law remain in flux. In ‘Institution’, Boon refers to both Max Weber and Émile Durkheim in characterizing society's different institutions, the state, professions, bureaucracies, and the law. To uphold the rule of law, society needs to be open access in that it embraces free markets and civil society in respect of the free press. For Boon, civil society counterbalances the power of the state by utilizing non-governmental organizations to provide alternate perspectives; the rise of the think tank is an example. Parliament too has to incorporate and uphold modern standards of propriety, which remains the case today – as the Johnson administration amply demonstrated. Alongside the parliament is the administrative state, which has grown extensively since the nineteenth century with a multi-faceted civil service that includes greater numbers of government lawyers and agencies specialized in regulating areas such as water, environment, professions, and more. The increasing number of public inquiries has often brought judges and lawyers into the realms of policy; for example, Lord Denning liked to defend the state from attacks from without. Clearly, institutions are valuable counterweights to state authority, but are they sufficient? Part 2 covers practice, which includes chapters entitled ‘Identity’, ‘Individuality’, ‘Legality’, and ‘Morality’, and is largely about lawyers. In ‘Identity’, Weber provides the framing wherein lawyers are identified as having a vital role in developing the rationality of law. Boon describes how trials, courts, and lawyers intermingled to start producing a kind of modern judicial procedure that brought expertise to the courtroom and the accused. Furthermore, lawyers smoothed the way for capitalism to grow and expand. In ‘Individuality’, the concept of rights captures the essence of the rule of law in protecting the rights of individuals from encroachment by government. These rights grew in various forms, including cultural, social, economic, and political. As Boon notes, ‘[h]istorically, rights accrued as an adjunct of citizenship’ (p. 171). He also analyses the US approach to slavery and its abolition, as well as the Allies’ use of the Nuremberg trials to create new rights and rules. ‘Legality’ returns to Hobbes and A. V. Dicey and shows us how citizens may live their lives following their own morality yet within the law. This brings us to the lawyer–client relationship and its ramifications, including confidentiality and privilege. Boon discusses a number of cases here in greater depth. ‘Morality’ invokes Anthony T. Kronman's ideal of the lawyer statesman who becomes sullied by bureaucracy, large law firms, and growing technocracy. The main discussion here is on lawyers as hired guns, adversarialism, and where lawyers may fall in relation to the ethical divide that seems to have individual responsibility on the one side and the public interest on the other. Boon shows that there is no definitive answer. Part 3 brings us to profession, which includes chapters entitled ‘Organisation’, ‘Regulation’, ‘Representation’, and ‘Incrimination’. The key theoretical thrust is the long-standing debate around what professions are and what they do, from Alexander Carr-Saunders and Paul Wilson through Talcott Parsons to David Sciulli. In ‘Organisation’, Boon discusses the development and organization of the Bar and solicitors from early times to the present. In an oddly titled sub-section, ‘Lawyers in the Diaspora’, he examines the legal professions in the US, Canada, Australia, and New Zealand, which, though they differ in many respects, share some common values. In ‘Regulation’, Boon traces how lawyers have been regulated in the UK from medieval to modern times, culminating in the Legal Services Act 2007. He focuses on two key aspects: the centrality of the cab rank rule and the Solicitors Regulation Authority's development of principles-based regulation. Boon traces the trajectory from external regulation to self-regulation, but the extent to which one could call the profession self-regulating today is questionable. In ‘Representation’, Boon engages in a detailed exegesis of lawyers’ codes, which interestingly tries to measure aspects of rules according to their degrees of compulsion. It is a significant section that is too complex to unravel in this review, but is worthy of attention. ‘Incrimination’ refers to Dicey and the certainty of laws and how citizens comply with them. This section is another in which Boon introduces a scoring system to rank different jurisdictions with respect to system duties (supporting legality and the administration of justice) and third-party duties (fairness and avoiding unjustified harm). He achieves this by interrogating professional codes in respect of disclosing illegal activities and misleading in advocacy. Similar analysis is undertaken with the duties. At the end of the part, Boon sums all of these scores to produce a rank-ordered table, which, though populated by numbers, is only indicative at best. Part 4 concludes the book by looking to the future and includes chapters entitled ‘Professionalism’, ‘Corporatocracy’, ‘Globalisation’, and ‘Democracy’, and an epilogue. Those familiar with the literature on professions will recognize the neo-Weberian thrust of Boon's take. ‘Professionalism’ is really about its decline as governments from Margaret Thatcher's onwards attacked most professions, believing them to be monopolistic and exclusive. Boon depicts this as a kind of undermining of the legal profession, in particular, as evidenced by Lord Falconer's staff giving Sir David Clementi a paper with the expected conclusions of his review that current regulation was confusing, which happened to be true. As a researcher during this period, I was puzzled by this depiction. My interpretation is that the lord chancellor's staff distilled the findings of the report by the Office of Fair Trading in 2001, Competition in Professions, which found restrictive practices in pricing, entry, advertising, status (King's Counsels), and other aspects of the legal industry.8 This report is still loathed by the legal profession as it overthrew their cherished shibboleths. Many of the findings were reproduced in the Legal Services Market Study by the Competition & Markets Authority in 2016.9 Boon discusses the new regulatory regimes that emerged from the reviews. There is a sense that traditions are being sacrificed on the altar of commercialism, but, as Eric Hobsbawm has taught us, traditions are often invented on the fly to provide cover for newly minted practices, something at which the Bar is adept.10 Boon shines a light in particular on the vitriolic campaign against the lawyers who took cases coming out of the Iraq War and other disasters. Leigh Day suffered huge reputational damage in the face of the onslaught by government and professional regulators, and Steven Donziger was disbarred and bankrupted by bringing a case on behalf of Amazonian farmers against Texaco for pollution. In ‘Corporatocracy’, Boon shows the decline in lawyers’ centrality as Members of Parliament (MPs) and elsewhere in the state. This is because corporate power has usurped professionals’ role as a ‘third logic’.11 Nevertheless, this has been counterbalanced by the rise of the large law firm and of the numbers of in-house counsel. Large law firms are perceived to have a distorting effect on the market, as their exalted status gives them undue influence in the formation of professional values, so we have an inverse relationship between rising corporate power and professional authority. Is this fair? Corporate power has expanded enormously, but has professional authority always been virtuous? If we return to some of the earlier research on lawyers, such as Philip Thomas and Geoff Mungham's work on duty solicitors,12 often what appears as altruism is actually self-interest. In ‘Globalisation’, Boon takes the neoliberal trajectory further by showing how international institutions pursue free market ideals, including the coerced sales of state assets. This is initiated and reinforced by the globalization of law firms that are, says Katharina Pistor, the masters of the ‘code of capital’ who convert physical and intangible assets (land, bonds, and even ideas) into capital and then reconstruct them into legal claims with priority.13 Sadly, Boon sees the reach of the rule of law as being under threat, as states use the risks of terrorism and ‘excessive’ immigration to rein in freedoms. In ‘Democracy’, he shows, inter alia, through Brexit, how the executive has tried to capture power by attacking institutions such as the courts and the British Broadcasting Corporation (BBC). Boon's book is essentially a Whiggish history of the rule of law, in the classic spirit of Herbert Butterfield,14 because, despite recent setbacks and contestations, the rule of law is ultimately seen to be proliferating and progressing. Boon's starting point of the Enlightenment, however, does need revising. David Graeber reminds us that the story of the Enlightenment needs to be decolonized. For example, before Hobbes wrote Leviathan, he saw the play The Successful Pyrate, in which Madagascan pirates were seen to negotiate with each other, neatly illustrating that power could be organized horizontally and not just top down.15 The anthropology of law teaches us that acephalous societies are not without law – quite the contrary. This was also the case in seventeenth-century England, where wife selling was a common alternative to divorce, which was impossible for ordinary people to obtain.16 We should overcome our predisposition to prioritize hard law over soft law, as the latter appears to predominate.17 This is visible in the book's discussions of the so-called British constitution, which is often praised for its inherent flexibility, or rather its potential for corruption. Is it more than merely what the prime minister and the cabinet secretary decide between them? Even Peter Hennessy finds that question difficult to answer.18 There have also been developments in history that may bear considering in the future. For example, Jack Goldstone and Peter Turchin have introduced rigorous new techniques that enable the prediction of historical events such as revolutions through the use of demographic structural theory, which reveals that revolutions often occur because of the instability introduced by the overproduction of elites. There is evidence for this in a number of countries.19 Lawyers and the Rule of Law is worth reading. It is broad of scope if at times uneven in its treatment of topics; for example, business lawyers receive less attention than other lawyers though they are increasingly important in the political economy. There are also some errors; the US Bill of Rights is composed of the first ten amendments to the constitution, not the first ten articles (p. 57), and Eliot Freidson's name is misspelled (p. 348). Nevertheless, the book has a respect for its subject – almost a reverence – which in this age of ‘polycrises’ is good to see.20 It engages and stimulates; it is not anodyne; it challenges us.

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