Introduction

In 1901 in his Rede lecture the distinguished English legal historian Frederic William Maitland was pondering about how the common law had survived the Renaissance. Looking at the Year Books of Henry VII and Henry VIII, he remarked that these ‘ancient law reports are not a place in which we look for humanism or the spirit of the Renaissance: rather we look there for an amazingly continuous persistence and development of medieval doctrine’. Indeed, while Renaissance-era writers were generally contemptuous of anything medieval, Renaissance-era legal writers were not only continuing to use but were actually praising medieval texts. Maitland questioned:

Maitland’s argument was that the common law survived because it was taught, studied and perpetuated by the Inns of Court and those they trained. As Maitland commented it was ‘difficult to conceive of any system better suited to harden and toughen a traditional body of law than one which, while books were still uncommon, compelled every lawyer to take part in legal education and every distinguished lawyer to read public lectures’. Legal education served to fossilise the law, bestowing a sacred aura upon what would otherwise seem archaic. As he put it:

Law schools make tough law.

Over a hundred years after Maitland’s lecture and many hundreds of years after the Renaissance, the common law continues to thrive. Attributing this persistence to the continuing role of legal education provokes a ‘chicken and the egg’ controversy as to causation. Yet, the role of Law Schools in making and perpetuating ‘tough law’ is so fundamental that it is taken for granted. Though there are exceptions, legal education remains characterised by doctrinal legal studies. The first stage of legal education focuses on the learning of legal principles, with a focus on their application. Law students are trained to operate as jurists.

Introduction

This chapter looks at law and philosophy as it appears in the Law School. In contrast with some of the chapters in this volume, which consider emerging or prospective links between law and a humanities subject, law and philosophy are already closely bound together and have been a prominent part of the legal academy. They are bound by a shared interest in justice: probing relationships between state and citizen, unpicking the rules people are expected to live by and, centrally, exploring how to govern fairly. Concerns around justice are prominent philosophical concerns and play a central role in political philosophy, with justice central to debates in ethics as it looks at values, right and wrong action, obligations and rights. Within law, the field of legal philosophy takes its interest in what the law is and ought to be, which again brings justice concerns to the fore. Both political philosophy, which has tended to occur outside the Law School, and legal philosophy, from within, are typically brought together in the legal academy through the teaching of jurisprudence. Hence the connection between law and philosophy is firmly established with jurisprudence modules being common in Law Schools. And this impact of philosophy informs what is sometimes known as legal theory, which is the all-encompassing term for the approach that compliments and contrasts traditional black letter law.

Thus, legal theory derived at least in part from philosophy allows us to go beyond looking at the law in and of itself and ask bigger questions. As a teacher, for example, I use this theory to explore social justice, influenced by how such inquiry may explore the way law plays a role in structuring society to serve the ends of some, over others. For example, why do some people have their basic needs such as housing met while others do not? And what can be done to change things for the better? These questions can include asking how and why the law perpetuates certain structures of power. And thus, legal theorising can help us pursue issues of social justice – which can be such a powerful part of the legal academy and one of the topics that can most engage students. This gives us a means to explore the role that law plays in stratifying society along the lines of class, race and gender to name but a few prominent divisions.

Interdisciplinary approaches to law are now commonplace at least in terms of legal research. Although in the Anglo-American world at least such work has tended to be predominantly social scientific in focus, there has also been an increase in interdisciplinary scholarship on law that draws upon the humanities. This is most notable in the large literature on law and literature as well as the development of a number of further ‘law and’ fields. Some of these (e.g. law and history, law and religion, law and philosophy) have been long-lasting but have been revived in recent years by increased interdisciplinary collaborations while other areas (e.g. law and television, law and comics, law and music) represent new areas of interest that have seen legal scholars interact with academics from other parts of the university and with practitioners, artists and producers. These ‘law and’ fields, however, tend to exist in isolation from one another and this limits their development in that they are not able to draw upon each other’s intellectual and methodological developments and because this means that they exist as small disparate fields at the margins of law as an academic discipline.

There is now a growing number of works that pay attention to ‘law and humanities’ as a field, including a small number of specialist journals, but these typically take a thematic approach and are not particularly accessible to newcomers and to a student readership. This edited work, therefore, fulfils a real and pressing need to provide an accessible, introductory but critical guide to law and humanities as a whole by exploring how various disciplinary ‘law and’ fields have developed. Law and Humanities contributes to further scrutinising the content and role of law, and how it can contribute and be enriched by being understood within the law and humanities tradition as a whole.

This edited collection provides an accessible introduction to law and humanities. It is designed to be the first port of call for students and scholars interested in particular ‘law and’ fields and law and humanities in general. It examines a number of ‘law and’ interactions in turn (ordered alphabetically). Each chapter is written by an expert in the respective field and will explore the nature, development and possible further trajec-tory of that particular disciplinary ‘law and’ field. As editors, we have encouraged each contributor to conceptualise their own discussion of their field.

Introduction

In this chapter we draw together our findings and point towards the future for research on both criminal justice more broadly, during and after austerity, as well as, specifically, criminal justice in Wales. Thus far, we have told the story of how austerity has impacted upon individuals’ experiences of criminal justice, examining thereafter the impacts on criminal defence, particularly that which is legally aided, and on other justice institutions such as the courts, the prosecution and the police. Our focus has been on how criminal justice has been experienced in Wales, and while our data is in some ways specific to south Wales, there are also many findings that can be generalized beyond Wales and to the whole of the England and Wales jurisdiction. Such findings may also be relevant to other jurisdictions that are facing difficulties in the wake of budget cuts and efficiency measures.

In Chapter 1 we explored the historical, cultural, geographic, socio-economic and legal landscapes in Wales and how they compare with England. We argued that criminal justice research must be conducted in Wales and should take account of locality given its impact on how justice is served and experienced. In Chapter 2 we explored the impact of austerity, and more deep-rooted neoliberalism, in England and Wales, while thereafter exploring the specific impact on Wales itself. Chapter 2 also detailed vulnerability theory – which underpins the research and will be considered again in this chapter – and the ways in which the theory prompts consideration of the implications for experiences of the criminal process and the ability of individuals to achieve justice. Across Chapters 3 to 7 we explored the narratives of those we interviewed, identifying key themes such as the underfunding faced by practitioners and accused persons’ previous experience of criminal justice. We entered the research expecting to consider the role of underfunding but the importance of the ‘first-timer’/‘regular division is one that only came to our attention during the fieldwork. Both themes, though, emerged organically from the accounts that were provided by those we interviewed, and we followed the interviewees’ leads to draw out their significance. These themes frame and inform many of the experiences that followed.

Introduction

The previous chapter looked at the relationships at the heart of the criminal justice system to draw out how criminal justice works in practice. We looked at working relationships and lawyer– client relationships, and, while the accused were considered, the practitioners who mediate the accused's experiences of justice were at the fore. In this chapter, our focus switches to the accused and the family members, and their relation to the criminal justice system. Placing these voices at the forefront of the chapter gives more depth to understandings of the lawyer– client relationship and, thereon, of what it is to experience the criminal justice system.

The opportunity to combine the voices of defendants and practitioners in the criminal justice system and to analyse their experiences was a key motivation for this study. Kendall (2018), for example, has argued that suspects’ voices need to be better integrated into criminal justice accounts, and Jacobson et al (2016) have presented the court process as anxiety inducing and confusing for defendants, thus highlighting the need to consider the experiences of court users. Yet, undoubtedly, in part, owing to issues of access, the accused's experience is under-researched within criminal justice studies, particularly those centred on questions of access to criminal justice. Yow (2018) has argued that research can have positive emotional impacts on interviewees, and Mitchell (2019) suggests that sharing painful stories with an ‘enlightened witness’ during interview can help start the healing process after a trauma. Many of the accused and their families told us how much they appreciated being listened to; it is important to our mission for us to centre their voices here.

This chapter is dedicated to exploring these often neglected individuals: those accused of committing criminal offences and those who have experienced the criminal process as family members of the accused. Our focus was not to examine satisfaction – or otherwise – with the criminal process, but instead to explore their views on their treatment during the process, their experiences of, for example, attending and appearing in court, and their interpretations of their interactions with other criminal justice actors. However, given the nature of semi-structured interviews, many interviewees did indeed comment on their dissatisfaction with outcomes.

Introduction

In the previous chapter, we considered some of the pressures that criminal justice practitioners faced and the resultant negative impact on the criminal process. The chapter examined problems stemming from inadequate legal aid and the way that this undermined criminal legal practice. In this chapter, we consider how those pressures impact upon relationships – operating within the parameters imposed by underfunding – between different parties in the criminal process.

Within this chapter we examine the experiences of ‘others’ in the criminal process, specifically those accused of committing criminal offences, interrogating how various parties within the criminal process understood their own experiences and those of others. The roles of actors within the criminal justice system may have a bearing on the values within the system (McConville and Marsh, 2014). In particular, the shift between ‘due process’ to ‘criminal control’ has signalled an anti-accused ideology with increasing police corruption, decreasing evidential standards, lawyers’ antagonism towards clients, harsher sentences, and inducements for guilty pleas (McConville and Marsh, 2014). Indeed, previous research has pointed towards the need to investigate interactions between key actors in a holistic manner (Newman and Ugwudike, 2013). Through examining interactions and relationships, we can understand how the process is experienced and, crucially, how it operates.

A prominent subject emerging from our research is how important it is for good relations to be built between various actors. While individuals and parties to the process may hold different worldviews and possess varying responsibilities, it was evident that essential to the functioning of the criminal justice system was the establishment of some common ground. Yet, some differences – such as the perspective of the arresting police officer and the suspect protesting their innocence – may be irreconcilable and, in some instances, we may prefer there to be greater distinctions between, for example, the views of prosecution and defence, particularly on matters such as negotiated settlement. Of particular concern is the danger of the courtroom culture and how it may cause a shift in the defence lawyer's mindset away from the needs of the accused person (their client) and towards the needs of the prosecution and the state they represent (Heumann, 1978), thus working against ‘zealous advocacy’ (Smith, 2013).

Introduction

In the previous chapter we assessed how criminal justice issues played out in south Wales as the location of our study, thus outlining the context of the experiences at the heart of this book. The chapter detailed defining features of the space and the time of this location, such as the relatively small scale of the criminal cases and the impact of austerity on an issue such as court closures. In this chapter we flesh out the specific criminal justice experiences that occurred in south Wales, considering the pressures that practitioners faced in their practice. These pressures frame the experience of practitioners and, in turn, shape the experience of the accused.

Criminal legal aid is subject to lower remuneration levels than other areas of legal practice; criminal legal aid lawyers have typically been viewed as ‘low status’ compared with other lawyers (Sommerlad, 1995; 1996; 2001). Those practising in legally aided criminal defence work are becoming increasingly deprofessionalized in relation to the tasks that they must undertake and their role in relation to the court. They are required to engage with increasingly formulaic processes; restrictions are placed on the initiative that they may seek to take. Their remuneration has stagnated and been reduced; the financial value placed on their work is limited. Within these circumstances, legally aided criminal defence lawyers have been labelled ‘alienated workers’ (Newman, 2016b; Newman and Welsh, 2019); their diminishing profession attracts little wider respect and internalizes negative messages. Alienated workers may feel powerless and time deprived, making their work inherently more stressful (Boni-Le Goff et al, 2020). Within this chapter we consider, in more depth, the issues deemed to be central to understanding the experiences of criminal justice. We address specifically the challenges that practitioners face within their practice. These challenges – presented through the frames of ‘time’ and ‘money’ – are inextricably linked. Owing to the pressures of practice caused by years of neoliberal and austerity-driven policies (as discussed in Chapter 2), the lawyers in this study had little of either. They were paid insufficiently for essential work, they felt pressure to work quickly to compensate for the insufficient fees payable, and they were bothered by what they perceived as undue encumbrances on their time. The nature of legal aid work required practitioners to work faster or, in the euphemistic language of the government and the courts, as efficiently as possible.

Introduction

The criminal justice system of England and Wales has long been in decline. According to the solicitors’ professional body – the Law Society – the system is now ‘crumbling’ (Law Society, 2019), and The Secret Barrister (2018) – an anonymous, best-selling legal blogger – has deemed the law to be ‘broken’. In recent times, budget cuts have also been made to the police service, the courts, the CPS and other criminal justice institutions such as prisons. Criminal defence lawyers have seen their fees stagnate or reduce. Defendants have been both compelled to participate in the criminal process and prevented from doing so (Owusu-Bempah, 2017). Some accused have been left to face the criminal process unaided (see Gibbs, 2016). Within the frame of neoliberalism, the criminal process has also become more managerialist and more punitive, adding further to the challenges.

In this chapter we examine the impact of austerity and neoliberalism on the criminal process, also examining some of the policies affecting criminal justice in England and Wales. Neoliberalism, in particular, has resulted in punitive excess and responsibilization, aimed particularly towards the poor and disenfranchised (Garland, 2001; Wacquant, 2009; Bell, 2011). Austerity has forced ‘violence’ upon marginalized groups such as asylum seekers and the street-homeless (Cooper and Whyte, 2017). We contribute further to these debates by examining how the state has failed – or has deliberately decided not – to properly support those within the criminal process, namely those who require – and are thus denied – access to justice. Within this frame, we address Home Office budget cuts to policing, Ministry of Justice budget cuts to (criminal) legal aid funding, the challenges facing the CPS, and court closures pursued in the name of ‘modernization’. Criminal legal aid cuts will form a significant focus of our discussion: how lawyers have been torn, through practice restraints necessitated by financial limitations, from their ‘zealous advocate’ ideal type (Smith, 2013; Smith and Cape, 2017), which in turn undermines their clients’ proper access to justice (Gibbs and Ratcliffe, 2019). In doing so, we will draw out both the effects upon England and Wales and the disproportionate impact on Wales.

Building upon our earlier work (Dehaghani and Newman, 2017; Dehaghani and White, 2020; Dehaghani, 2021), towards the end of this chapter we introduce vulnerability theory. This theoretical framework loosely underpins our exploration of the criminal process in this book, upon which we later reflect in Chapter 8.