Everyday law in the court writing of Sybille Bedford
In the most recent edition of Law and Literature (2009), Richard Posner praises Sybille Bedford as one of the few novelists who “have done brilliant nonfiction writing about law” (4). Posner does not elaborate what he means by “brilliant” except to say briefly elsewhere in his work that readers comparing American and French criminal procedure can do better studying Bedford’s “record of actual trials” than reading “novelistic descriptions.” (63)1 These comments are made within the general context of Posner’s well-known reservations about law and literature studies which had already attracted vigorous rejoinders (see, for example, Weisberg 1989, West 1993), and it is not my intention here to revisit the arguments. In not elaborating his praise, however, Posner makes of Bedford an unargued case within his sceptic’s discourse about law and literature. Posner’s remarks about Bedford appear, on the one hand, to acknowledge that authorial talent can straddle fictional writing and legal writing, such as the trial report, with its truth and factual claims, and on the other, to insist that they are strictly separated generic categories. In disputing fiction’s likely contribution to the law, one of Posner’s complaints may help to explain his positive appraisal of Bedford. He writes: “only rarely can we learn much about the day-to-day operations of a legal system from works of imaginative literature even when they depict trials or other legal processes.” (21)2
The opening of “The Worst We Can Do,” one of Bedford’s essays in the collection The Faces of Justice (1961), appears to meet Posner’s criterion of quotidian knowledge:
Not the worst. Not about the great wrongs. Not about bad laws. Not about Adolph Beck or Chessman or judicial errors; not about hanging or flogging or the Labouchere Amendment. About the small things men do to each other every day if they have the power and the lack of imagination, or if their convictions happen to run that way. It goes unrecorded, it is hardly noticed, but it lives on in the memories of those concerned.
In this brief but resonant example, Bedford addresses the reader in personal, almost intimate, tones. Actual persons and laws are named – Beck, Chessman, Labouchere Amendment – but the reader is invited to put them aside in favor of that which is “unrecorded”, and even more nebulously, of memory, individual and collective. Contrary to Posner, what strikes any reader who knows the trial report as genre is how Bedford’s writing departs from it – from its factual tenor, its registers of objectivity, its sequenced narrative. The “literary” in Bedford’s writing signifies these departures and how they mobilize her “record of actual trials” toward the interconnection of the legal and extra-legal.
Bedford’s choice not to report on “the worst” or “the great wrongs” is deliberate for as a court reporter in post-Second World War England, she covered a number of “famous trials” for English and American broadsheets and magazines – the cases of Henry Bodkin Adams, the doctor suspected of murdering his aged patients in 1957, Stephen Ward, the society doctor at the center of the Profumo scandal (1963), the trial of Lady Chatterley’s Lover (1960), of Jack Ruby, in Dallas (1964), the proceedings against twenty-two members of the Auschwitz staff (1963–5).4 From the perspective of this chapter, it is her narratives of the British and European continental magistrates’ courts and trials, collected in The Faces of Justice and As It Was (1990), that deliver the challenge of literature’s capacity to represent imaginatively, in Posner’s words, “the day-to-day operations of a legal system.” In these narratives of the quotidian court from the 1950s and 1960s, it is not just the case on trial or routinized legal proceedings or the incarnation of legal subjects that come under scrutiny, but the movement of affect and the entire life-world of the court itself.
Reading Bedford’s writing about everyday law raises questions of whether the strict categories of fiction and fact that Posner imposes on her writing are sustainable, and whether her “brilliant” writing really does support Posner’s case against literary representations of the law. These are questions this chapter wishes to address as it explores Bedford’s achievements. At the same time, to make a case for the “brilliance” of Sybille Bedford as law writer in terms other than those laid down by Posner will involve engaging the wider issue of how a study of her work contributes to the ongoing academic inquiry and conversation we call “law and literature.” In this chapter, I will argue that Bedford’s texts, read alongside examples of generic writing on relations between the law and the general public, offer singular insights on such relations in the everyday courtroom. The courtroom takes alternative shape in her narratives in at least three important ways: as an ensemble of legal voices that can be heard as extra-legal polyphony; as the space of the interhuman encounter; as the space of law’s elaboration beyond itself that responds to the demand of the observer-narrator as public witness. From the point of view of this chapter, these are the major contributions of her court writing to our understanding of law as quotidian practice and as culture, and may argue against her neglect in law and literature scholarship.
It is the case that Bedford as a writer about the law has not really been studied in any detail; in this respect, Posner’s laconic mention is not untypical. Celebrating her recent centenary in 2011, Caroline Moorehead writes, with notable under-statement, that Bedford’s “coverage of trials” is “sometimes overlooked.” (15)5 Critical attention before and after Bedford’s death in 2006 has been mainly focused on her Mexican travelogue (1953), and her semi-autobiographical novels and memoir for what they reveal of her family and peripatetic life between the two World Wars.6 In contrast, The Best We Can Do, the record of the Adams trial, and the essays about magistrates’ courts in The Faces of Justice and As It Was, have been critically neglected despite earlier reviewers’ positive reception and praise for their literary qualities. For example, a reviewer of her account of the Adams trial writes:
It is restrained and faithful reporting at its best, journalism without the double-spread headlines or any other contrived hint of sensationalism. It is good journalism plus – and the plus factor is more than sufficient to make the book literature. A trained lawyer might have done it differently, with greater emphasis on the trial techniques displayed by respective counsel, and the procedural and substantive points of law involved. But it is doubted that he would have done as well. He would probably have wound up with something like the ordinary law review article, a product which seldom merits the literary accolade.
(Boyd 1959: 1066)7
The reviewer, a legal professional, attributes to Bedford’s writing “literary” qualities beyond factual reporting that has the capacity to extend legal discourse toward a wider reading public. Here, the “literary” is stylistic medium and verbal accomplishment that mark the movement across the discursive space between the law and society at large. And quoting the specific account in The Faces of Justice of a trial for car theft in a Parisian court, another early reviewer comments:
The … passage appears to be merely a bit of casual reporting. In fact it is a piece of masterly selection, obviously reduced to its shocking essentials. In a few lines, and without comment of her own, Miss Bedford has managed to say as much as Victor Hugo about French justice. The indictment is devastating and without appeal …
Both reviews show that as a narrative of the many dimensions of the law, The Faces of Justice is itself multifaceted: both “factual” and “imaginative”, it attends to how the day-to-day operations of the most ordinary courtroom can be made to yield up a referentiality beyond itself – both in the judicial and legal system in which it is situated, and in the domains of literature and culture.
The quotation from The Faces of Justice and the reviews direct attention to the generic ambivalence of Bedford’s writing. Neither strictly trial report nor memoir of her court reporting experiences, it has observable literary qualities – in an instance when the “literary” and the “fictional” are not synonymous terms. Equally noticeable is how this “literary” space connecting what is inside and outside the law is also generically marked. To Robert Ferguson, this space is the “continuum of publication” that issues from “a courtroom trial – from indictment, to transcript, to judicial decision and on from there to newspaper report, journal article, historical account, and fictional projection.” It is in this space, Ferguson opines, that “the cultural work of interpretation in courtroom analysis lies” and where “the hidden and neglected connections … between legal and nonlegal narratives” are forged and brought to light. (84, emphasis in original) But the exact location of Bedford’s law writing in this space is elusive for it traverses all the generic categories that make up Ferguson’s “continuum”. Important for his insight on the necessary connections between the legal and nonlegal, Ferguson’s positioning of the “courtroom trial” in the etiology of generic narratives continues to privilege the trial as the nexus of meaning production. In Bedford’s writing, however, “courtroom” and “trial” are coeval terms and coterminous spaces: direct speech in evidentiary discourse, cross-examination and judicial pronouncements intermingle with free indirect observation, analytic interpellations, and reflexive comments, all framed by a narratological consciousness that, beyond the formal structure of the trial, confers shape and temporality.
Among the pressures acting upon the generic indeterminacy of Bedford’s writing are the contrary demands of factuality and theatricality. In her memoir, Quicksands, Bedford admits to an “early fascination with the Law” (357) dating from her first visit to a London law court when she was captivated by the “blend of gravity and theatre of it all” (238), and would rather “watch trials” instead of “going to films and matinées.” (Guppy 2006) During the Adams trial, she found herself daily amidst a media circus at once fanning and inflamed by popular views of the doctor’s guilt.8 Her decision, after the trial, to write “a comprehensive, unsensational account” of its “facts and atmosphere” (Quicksands 357), however, shows a desire to keep her fascination under control, and to restrict her literary skills to the trial’s “atmosphere”, the indeterminate but vital complement to the factual report.
In her description of the opening of a trial, for instance – “The gradual filling of the place with men and papers; the Judge’s coming on with the flurry of sudden rising and subsiding which is the stroke of transsubstantiation into Court” (FJ 16) – Bedford’s rhetoric arbitrates between law as auratic and as rehearsed and ritualized performance. Referencing Foucault’s advocacy of I, Paul Rivière, Paul Rabinow observes, “Good journalism required a passion for stalking the elusive singularity of the present. More challenging yet was the task of observing oneself, with a certain distance, in the process of practising this métier …” (xviii). Bedford’s self-reflexiveness as law writer is transcribed in the concise economy of her writing recognized by the reviewers as “restrained and faithful reporting at its best”, “a piece of masterly selection”. In his study of the semiotics of the common law, Peter Goodrich describes how, in the courtroom, “an architecture of place” (222) is ordered perspectivally by and towards the bench, and legal actors perform their roles with rehearsed and richly symbolic gestures that create the aura of the law’s presence. Goodrich’s insight on the court’s theatricality is part of his critique of “the forms of appearance and representation of law in the public sphere” that make its legitimacy and sovereign authority visible to the public. (209–10) In the light of this critique, Bedford’s accuracy and restraint may offer a spectating witness’s sober mediation of the inherent theatricality of the courtroom, its mystification of the law and legal process and exploitation by a sensationalist media.
Paradoxically, concise economy also works as deliberate imprecision in alluding to the vast areas subterranean to the law’s pomp and ceremony. Bedford’s “guesswork, silences, evasions” open up, for a fellow writer, “gaps in which the imagination could breathe – truths might emerge, though seldom final truth” and offer insight into “the real drama flickering in hidden arbours and shadows.” (Vansittart 2006) Both concise and allusive, Bedford’s writing orchestrates the space “between” the legal and non-legal so that new perspectives on the everyday courtroom can emerge. In the “real drama” she visualizes, individuals in the performance of legal roles become the point of departure toward encounters in which the law both asserts itself and invokes the demands of the other. The courtroom is both the place of law and the space of affective life – always under the watchful gaze of an attentive member of the public.
We can catch a glimpse of her intricate maneuvers in the opening lines of “An Ordinary Trial”, the first chapter of The Faces of Justice about a minor theft:
Above the dais, the ornate chair, the robe, the still head of the Judge rises above the court as if suspended.
“Thirty-two cheeses, my Lord, valued three hundred pounds four shillings and nine pence.”
The first moments inside a Court of Law are like the first moments at a play – the eye notes the scene, sound begins to reach the ear, then words. Sense converges later.
Bedford breathes life into a courtroom so that as an “architecture of place” principally ordered, as Goodrich avers, from the perspective of the bench, it becomes the space of voices and other bodies. A reader familiar with modernist poetry may be reminded of the lines from T. S. Eliot’s “East Coker”:
… As, in a theatre,
The lights are extinguished, for the scene to be changed
With a hollow rumble of wings, with a movement of darkness on darkness,
And we know that the hills and the trees, the distant panorama
And the bold imposing façade are all being rolled away—
(Eliot 1963: 200)
Both passages refer pointedly to spectating subjects; it is their perspective on the scene, their “eye”, and above all, their expectation that the narrative registers. But while Eliot’s spectators – in the controlling intelligence of “we know” – maintain their distance from what is spectated on, Bedford is both watcher and the watched. As her senses become engaged, the courtroom comes to life; in her very physicality, the spectating subject becomes part of the action on the courtroom stage. As we shall see in greater detail later, in “An Ordinary Trial” and other essays, the everyday business of the court – or Posner’s “day-to-day operations” – emerges in ways that redefines what is ordinary. This redefinition is generic as it selects and departs from established strategies of the trial report; it is also thematic for it pertains to the renascence of life in the courtroom suppressed by the court report’s dominant legal focus.
To consider the court report as genre, Ravit Reichman observes, is to study the relationship between “storyteller and audience” as both aesthetic and ethical. (146) In moving away from the court report, Bedford also mobilizes this relationship to aesthetic and ethical effect. “Storyteller” and “audience”, rather than designating separate legal and lay categories or fixing positions inside and outside the courtroom, become narrative perspectives that overlap and disjoin. In Bedford’s own time, there were notable efforts to explain the law to the public – or generic writing adjacent to hers where the law can speak with a more personal voice, and it is in this context that her originality can be more sharply perceived.
The end of the Second World War saw a revival of debates about reforming the magistrates’ courts in England, in which the central issue was whether unpaid lay Justices of the Peace should be replaced by stipendary legal professionals working full-time. The law profession itself was by no means unanimous in its view on this issue. While Henry Slesser KC, a former Solicitor General and retired senior judge, asked “how impossible is it to expect that the benevolent untrained will continue to be able to discharge … onerous duties” thrust upon them by “innumerable statutes” (5), E.V. Mills, a lawyer and JP, believed that lay magistrates who only needed to attend court once or twice a week came “to the work with a fresh mind … the intervals of their time being ocupied by other and brighter things.” (5)9 Mills’ argument points to a world “other” than the law, a regular engagement with which makes for improved judicial acumen. In their majority Report (July, 1948, Cmd. 7463), the Royal Commission on Justices of the Peace reaffirmed the foundational importance of public intelligibility to the Common Law as the principal justification for commending the system of lay magistrates:
because, like that of trial by jury, it gives the citizen a part to play in the administration of the law. It emphasises the fact that the principles of the common law, and even the language of statutes, ought to be … comprehensible by any intelligent person without specialised training. Its continuance prevents the growth of suspicion in the ordinary man’s mind that the law is a mystery which must be left to a professional caste and has little in common with justice as the layman understands it.
(qtd in Whiteside 1949: 83)
In upholding the established system, the Report also recommended various measures for reforming the lay magistracy. “The ideal”, the report states, “is that they shall learn what is expressed in the term ‘acting judicially’.” (Whiteside 1949: 76)
These recommendations became law with the passage of the Justices of the Peace Act (1949) but the debate on the “Common Law” and “common law”, as they relate specifically to the magistrates’ courts, continued to draw different principled views.10 The legal scholar, Glanville Williams QC, acknowledges that lay or “amateur justice” may be less susceptible to “staleness and cynicism … from the never ending series of sordid cases” in the lower courts. (1955: 274–5) Against this, however, he cites as evidence the public esteem in which several stipendary magistrates were held as proof that they “may show all the qualities of freshness and humanity to be expected of a layman.” (275)
Some of the justices whom Williams held up as positive exempla have written about their lives in law and experiences on the bench. In such memoirs, the impulse of self-explication is often imbricated with the aim of explaining the law to the public at large. The titles of Claud Mullins’ Fifteen Years Hard Labour (1949), J.B. Sandbach’s This Old Wig (1950), and James Avery Joyce’s Justice at Work: The Human Side of the Law