Jurist in Context : William Twining in Conversation with David Sugarman

ideology; I was brought up on the dictum ‘politics and dishonour are

Addressed to academic lawyers and non-specialists alike, William's story demonstrates the importance of the discipline of Law, its future development and potential. JIC has a distinct identity, covering a wide range of topics unified by a particular tone that is at once valedictory, self-critical and personal. It has the character of its author: humane, generous, and rational; ambitious in aim though modest in tone; and acerbically direct in its diagnosis of what is wrong with legal education and what needs to be put right. In this dialogue we focus on only a selection of the topics addressed in JIC, aiming to convey the flavour of William's latest thinking, and to extend its arguments. 3 We concentrate on topics we hope will be of particular interest to readers of this journal. 4 The discussion illuminates a range of issues including the significance of Africa, colonialism and decolonisation; how William felt betrayed by Salmond on Torts; how his period in Belfast shaped his thinking; his conception of Law as an academic discipline and the role of theorising within it, responding to those who regard his own approach as insufficiently critical or simply 'liberal'. It also delineates some of the most important thinkers that have influenced him; his criticism of 'Law in Context'; his critical reflections on his own work, his mea culpas and changes of mind; his latest thoughts on legal education; and the value-added that 'globalisation and law' brings to the discipline of Law. Brief reflections on the message that William would most like JIC to convey, brings the conversation to a close.
Here is William adding a more personal reflection to his formal publications.
Illuminating the ideas and biography of such an influential figure facilitates reflection on issues such as law teaching and legal scholarship, the meaning, use and limitations of "law in context", and the role and character of jurisprudence. The conversation also offers a fascinating window on the development of, and the 4 struggles surrounding, legal education and academic legal thought over the second half of the twentieth and early twenty-first centuries.

Why A Memoir?
SUGARMAN: Could we begin by you outlining why you wrote JIC? TWINING: JIC is an intellectual memoir modelled, to some extent, on R.G.
Collingwood's An Autobiography, which was a seminal work for me at the start of my story. 5 It traces the story of my intellectual development through thinking, teaching and writing. It tries to give an account of where I was coming from, why I believe or doubt what I believe or doubt about law and its study, the immediate concerns behind my main writings, and some changes of mind, some unfinished business and why I call myself a 'legal nationalist'.
Why a memoir? I was persuaded to go into print because I felt that much of my writing had not been reaching my main intended audience -that is academic lawyers generally (xix-xx). Frustratingly, nearly all of my publications have been seen as specialised: Evidence is treated as a rather esoteric subject for specialists, an absurd idea; if I'm writing about Jurisprudence: 'Too abstract for me', say most academic lawyers; many view Legal Education as 'not a serious subject'; even 'globalisation' is treated as a specialism; jurists, in particular, have been slow to react.
A central theme of the book is that all academic lawyers should be concerned with the health of their discipline and the role of theorising within it. Globalisation affects all human beings; everyone constructs, interprets, applies and breaks rules; we all worry about fairness and injustice; draw inferences from evidence; encounter disputes from many points of view and are hooked on stories. Law is a humanistic discipline because it deals with subject-matters that are the concern of everyone. My motivation for going public, as it were, is to try to attract the attention of people I had 5 R.G. Collingwood, An Autobiography (1927). 5 been missing when I thought I had been addressing them but hadn't reached them. JIC tries to do this. The main exception to this periodisation is Legal Education. 9 I was interested in education before I was interested in Law; and I was an activist and polemicist in the area for much of my career; in retirement my ideas have undergone a significant shift 6 The main works are W. Twining, Rethinking Evidence (1990, 2nd ed., 2006 11 The first question from the audience was: 'how can anti-colonialism be moderate?' A good question, partly answered in the text (290-1, Ch. 5-7). The context should make it clear that Suez was an epiphanic moment near the start of my belated political awakening. This was the summer of 1956 and I was 21 nearing 22. I was shocked both by the invasion, but also by much more overt racist talk learned that 'colonialism' does not end at Independence. Ever since, I have been making modest contributions to decolonisation (Ch.5, 6, 7, 229, 267-9, 284, 290-1).
The main theme there is that the processes of decolonisation last much longer, are very complex, and full of contradictions, dilemmas and ironies. The cover of the book is an example of post-colonial hybridity: This is a Papua New Guinea sculpture appropriating Rodin, with me culturally appropriating New Guinea art. The term 'postcolonial' has been used by literary theorists in a much narrower sense than I meant.
Perhaps Marlon James' 'post-post-colonial' expresses it better. 12 The Empire sits on one's shoulder when one thinks one has left it behind. In Dar es Salaam in the early '60s we all thought we were being radical, but as Issa Shivji, a Dar graduate, astutely pointed out, there are severe limits to 'legal radicalism'. 13   close to the view of Jurisprudence outlined in Chapter 1 of JIC. However, regularly adopting a global perspective led to the further development of my ideas, so I will defer this topic until we deal with General Jurisprudence below. Fourth, towards the end, having followed the local troubles with both fascination and horror, I became involved in a staff student working party on emergency powers and techniques of interrogation.
The Queen's four-year undergraduate degree persuaded me that the Achilles Heel of primary legal education in England and Wales was -and is still -the three-year degree for eighteen-year olds and that most of the unsatisfactory polemics about legal education have been due to trying to squeeze too much into a three-year course. Curriculum overload is still the greatest problem. 19 In my last year in Belfast (1971-72) some students asked why was the university not involving itself more in the community? Queen's had taken a great pride in being above the local conflicts; sectarian nonsense was not tolerated on campus, so how was the university to respond? When students pressed us to get down off the fence, a knee-jerk answer was: 'on which side?' 20 This was too glib, so we created a small working party, staff, student, catholic, protestant, gender male, female. 21 We took on, first of all, interrogation techniques of suspected terrorists and then emergency powers generally. We produced a pamphlet which I was quite pleased with at first, until various Tory MPs started quoting bits out of context, cherry picking from what was a compromise package. I learnt a lesson there politically, but the working party was a worthwhile exercise for the participants. For example, the interrogation of Where there is the political will, behaviour in police stations can be monitored and made transparent and accountable and this has been done in some countries and has significantly reduced the incidence of institutionalised brutality. 22 In neither type of scenario, and some others, is the morality or legality of the practices really in issue. The research and discussions need a breath of realism focussing on actual patterns of behaviour.

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TWINING: Kipling wrote: 'But his own disciple shall wound Him worst of all.' 24 I hope I did not do that to either of them. Hart was mystified by my 'conversion' to Llewellyn, but I never saw it that way. We might say that there was some creative tension in  independent African countries was that we had to be 'contextual' (58)(59)(60)(61)(62)(63). That is, we had to ask of every body of doctrine or specific rule, every institution and every alleged solution to a problem: does this fit local conditions and aspirations? (58)(59)(60)(61).
The Law in Context series was dreamed up with Robert Stevens at Yale in 1965 and it was launched and rationalised during the Belfast period (91-2). 26 It is for others to assess the influence and significance of the series and whether individual books have in practice been 'contextual'. Here the phrase 'law in context' is vague, but it is not vacuous.
Warwick is particularly significant here for three reasons: first because Geoffrey Wilson had a very specific conception of 'law in context' or what we preferred to call 'broadening the study of law from within'; second, in the early years every member of staff was challenged to 'rethink' the subject they were teaching in a broader way; and third, I try to explain how it is a mistake to try to theorise 'law in context' and related terms as theories of law, specific methodologies or precise kinds of 'ism'. 27 26 I tell the story of the start of the series in Chapter 7. It would anyway have been foolish for the editors to give a precise or restrictive interpretation to the label. (not just lawyers) understand a capitalist society who has not studied both Labour law and Company law? He argued that the discipline of Law can provide distinct lenses on society and an undergraduate degree should do just that. Other key ingredients were starting with real-life social and political problems rather than formal legal rules and freeing legal studies from insularity by emphasising foreign, regional and international law, thus anticipating concerns with 'globalisation'. Warwick was to be a law school peopled by law students and academic lawyers who were committed to broader approaches to learning, teaching and scholarship about law. This involved 'broadening the study of law from within' rather than Sunday supplement add-ons or bits and pieces of 'Law and…' A Warwick graduate once remarked to me that what he had learned at Warwick was how to understand every page of the Financial Times. Geoffrey would have been pleased with that.
In the early days Warwick was 'Wilson's Law School', but his vision was fairly quickly diluted by two factors: First, it was not possible to squeeze all his desiderata into a three-year undergraduate degree. I had tried to persuade him to insist on four years, but that was felt to be too risky in recruiting students to a new university. Second, as the institution grew members of staff and students pressed for more options, though their motives were different. This forced us to make some compulsory subjects optional; significantly this happened to Labour Law and Company Law at the first curriculum revision in 1974. Third, although this was less problematic than some felt, the LLB had to be recognised for purposes of professional exemption, so some semblance of covering core subjects was required and over time the core crept up.
The lack of Torts as an organising concept, the omission of a few torticles and other problems of coverage were easily settled over a bottle of claret with Robert Goff QC, 16 who agreed that the subject of recognition of single honours law degrees was a charade and was causing unnecessary angst (153, ch. 12).
Despite the dilutions of the Wilson vision, a recognisable Warwick ethos was maintained both in the broader approach to teaching and in the teaching materials and publications of staff. This is illustrated by the fact that at least ten Warwick authors, beside myself, have contributed to the Law in Context series.
The most interesting aspect of Warwick for me was the injunction to every member of academic staff to rethink their subject in a broader way. This applied first to TWINING: This is quite complex. I am agnostic about most belief systems and quite sceptical about abstract ideologies. As a scholar I strive for relative detachment, but I have some commitments. Obviously, self-interest is an important driver, but we also need concepts such as altruism and self-delusion. I think that the idea of power is very elusive, and that dichotomies like Santos' distinction between hegemonic and counter-hegemonic forces are rather simplistic, but can sometimes have explanatory force. I am a fascinated, sometimes appalled observer of political antics with a strong These are all different. I don't think that the term 'law in context' should be used to represent a field or an approach or a theory of law or a specific methodology or anything else like that. It may be quite useful as a broad-brush term provided one does not attribute too much meaning to it. Part of the ambiguity lies in the specific words. To put it briefly, some have assumed that 'law' in this phrase applies just to doctrine; others, including myself, have assumed a broader conception of law that includes institutions, processes, personnel, and technology, as well as doctrine. 'Context', a word now attracting philosophical attention, has been variously interpreted to mean 'law in action' or 'historical, political or social context', or cross-disciplinary perspectives.
One way of putting this is to say that what counts as context itself depends on context (163). SUGARMAN: Are you suggesting that we abandon the term, 'law in context'? 34 Here let us treat Empirical Legal Studies, Socio-Legal Studies, Sociology of Law and Law and Development as broad field concepts, with no precise or stable borders and, only rarely, any analytical purchase.

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TWINING: As a useful analytical term, yes. But in case anyone thinks this is question-begging I quote an earlier statement of my personal interpretation of 'law in context': 'I do not like being labelled, but 'law in context' is better than most: I advocate thinking in terms of total pictures', mainly to set a broad context; I think that judicial and other related decisions are best studied in the context of a total process model of litigation and that the approach applies beyond litigation and dispute-processing to all kinds of legal 'action'. Normally rules need to be interpreted, applied, studied and used with reference to context. Whether the relevant 'context' is mainly historical, social, political or something else depends on the particular enquiry and its standpoint; I am careful not to treat law as context, and to give doctrine its place. For me, 'law in context' as an approach challenges the idea that Law is an autonomous discipline or a 'science' in any strong sense: that there are pure forms of legal knowledge. I think that understanding law requires openness to other disciplines, but I am a jurist rather than a philosopher or a social scientist or historian.

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analytic, idealist or doctrinal approaches, but rather as one integral part of understanding law. In this view, legal realism is best treated as a hedgehog concept, that is that it stands for one Big Ideathe importance of the empirical dimensions of law and justice as part of understanding law. Once that proposition is accepted, the gates open to all of the foxy diversity, controversy, differing traditions and dilemmas and problems within empirical legal studies' (169).
Elaborating on this will require another occasion. A second concern is about Law as a discipline being lumped under Social Sciences rather than Humanities. That is a headache for bureaucrats, rather than for legal scholars and theorists. When I talk of Law as a humanistic discipline this is not to do with the classification of fields: for example, whether they are 'hard' or 'soft', Neuroscience, Psychology, Economics, Narrative Sociology, History, Literature, and SUGARMAN: Are not all of these terms related?
TWINING: All of these overlapping ideas and activities have been part of, or closely associated with, the idea of 'a revolt against formalism'. 38 Analytically 'formalism' is a contested concept (163,172) and I prefer to refer to 'the doctrinal tradition'. In order to avoid unnecessary polemics, it is helpful to adopt a rich concept of doctrine, such as that advanced by Andrew Halpin (171). 39 This includes not only rule-formulations, but also principles, differentiated conceptions of interpretive roles, and a sophisticated understanding of legal materials. Identifying formalism with 'blackletter law' or 'school rules views' invites caricature. The best expositors, such as the authors of the great American treatises and the Scottish institutional writers for the most part had extensive practical experience and their working assumptions took account, usually tacit, of institutional, processual or cultural background factors.
Some of that tacit knowledge tended to be quite local.
In law 'the revolt against formalism' was not a rejection of doctrine; rather it was a reaction against the dominance of the doctrinal or expository tradition of academic law. Academic law cannot do without doctrine. It is a necessary but not a sufficient element of understanding law. I think a better approach is to adopt a nuanced view of doctrine, which includes more than just rules, and allows that most expository works assume some tacit, often local, knowledge about the institutional, processual and cultural practices in the background. I don't think that concedes too much.
Accepting the importance of doctrine does not preclude a critique of aspects of the doctrinal tradition, especially its dominance and exclusivity. For example, a strong or moderate realist will reject the idea that legal dogmatics or legal science constitutes an autonomous discipline; most realists will reject the idea that law consists only of rules or doctrine and will emphasise the importance of institutions, processes, personnel, legal technology, as well as context, in addition to rules and norms; and are much more similar than is commonly supposed in respect of structure, the uses of narrative, and potentially shared concepts (for example, relevance, weight, cogency, admissibility, coherence, and logical consistency). Many explicit legal arguments can only be explained by reference to tacit knowledge of various kinds that need to be brought to the surface; furthermore, much of such knowledge tends to be contextual and local, threatening the generality of bland de-contextualised theoretical statements. Thus, even the Modest Thesis challenges very abstract accounts of 'legal reasoning'. WLT: Learning about law is lifelong, from cradle to grave, and nearly all of that learning is informal in the sense that it takes place outside institutionalised 'formal' instruction. On the other hand, nearly all research, public discourse, debate and policy-making about 'Legal Education' has focussed on law schools, law teaching, law teachers and law students. To an extraordinary extent, as academic lawyers, we have focussed obsessively, sometimes narcissistically, on primary legal education and initial professional admission to private practice -one quite small part of a total picture of formal learning about law, let alone learning about law through all the seven ages of man (and belatedly woman) in society as a whole (270-71). I am not saying that formal primary legal education or law schools are unimportant -although that might be true in the greater scheme of things. I think and talk about such specific matters because it is my trade, but I now want to look at the whole field from a different perspective and set particular topics in a much broader context. 41 Briefly, what I am trying to say is: First, if we want to take lifelong learning seriously, we need to substitute 'learning about law' or some such label instead of 'Legal Education' as the main organising concept for this field. Second, academic lawyers individually should see themselves as professional educators and collectively we should concern ourselves with the general field of learning about law, not just with some narrow patch, such as primary law; and, more generally, we can learn from ongoing developments in, for example, IT and Neuro-Science. In short, in taking this step we will not be on our own.
There is some self-criticism, but no wholesale recantation. 45   entirely on the municipal state law of particular countries or jurisdictions, today that focus has to extend to include many kinds of transnational, supra-national, subnational, regional and even global relations and phenomena. Very few people connected with law can confine their attention to a single municipal legal order.
Moreover, our Western traditions have been quite parochial in that their focus has been restricted, with a few notable exceptions, to modern Western municipal legal orders. 'Human Rights: Southern Voices' was a small first step towards deparochialising Western Jurisprudence.
SUGARMAN: What do you mean by General Jurisprudence?
TWINING: My account of Jurisprudence in Chapter 1 was not confined to any one jurisdiction or tradition. In that loose sense it was 'general'. I have chosen to use the term 'General Jurisprudence' as a label for a vast field which includes transnational, supranational and global perspectives. 'General' here means 'more than one', contrasted with 'particular' (for example, one jurisdiction) and with 'universal' (claiming universality) and 'global' in a strict sense, that is, covering the whole world.
Unfortunately, the term 'General Jurisprudence' has several usages: in some civilian writings 'general' means relatively abstract, set between abstract philosophy and particular studies, roughly equivalent to 'middle order theory'. Some analytical Legal Philosophers claim that they are doing 'General Jurisprudence' when their work covers all possible legal orders (244-5). Dickering about labels for fields of study is not important here, provided that it is understood that the shift to transnational and genuinely global perspectives is a shift of focus. As I try to make clear in Ch. 18, adopting a global perspective brings certain topics, such as pluralism, diffusion, regionalism, and problems of comparison and generalisation into prominence and draws attention on the need for usable concepts that 'travel well', but it does not necessarily involve radical change in the basic conception of legal theorising.
However, it does present challenges to some common mainstream working assumptions of Western traditions of academic Law (251-2).
Accepting that mine is one among several reasonable views does not preclude me from claiming that my conception is coherent, carefully constructed and particularly important for the health of our discipline, especially in this period of accelerated 'globalisation'. I am critical of some influential assumptions about the field: for 33 example, that Legal Philosophy is co-extensive with or the only intellectually respectable part of Jurisprudence (2, 201, 212-13); or that jurists should focus on 'philosophically interesting' questions rather than jurisprudentially interesting ones (for example, 211); or the often implicit assumption that the only or main aim of legal theorising is the construction and criticism of all-embracing theories of law; (4, 276-79); or the converse assumption that anything goes; or the prevailing assumption that Hart's The Concept of Law is the best starting-point for getting to grips with legal theory today (78).