Why do you need more lawyers in your (historical) life?

Katherine Milliken

I spoke at the recent (and excellent) Modern British Studies Association conference in Birmingham as part of a panel on ‘New Legal Histories of Late Modern Britain, c,1970-2010’ and advocated for the importance of the exploration of the civil legal system and its interactions with wider society and for doing so through the lens of the legal profession. Following the Second World War, changes to the myriad relationships between the state, corporations and citizens resulted in new demands being made of the civil law. The way that the substance of the law and the legal system responded in these years was in no small part the result of the attitudes and activities of the profession. Lawyers created new legal disciplines and new ways of delivering their services. They helped cause groups, shaped legislation and participated in public debates.

The landscape shifted again during the Blair government, not least with the passing of the Human Rights Act 1998 (which came into force in 2000). Within this broad period from 1945 to 2000, the years between the late 1960s and early 1980s saw rapid and consequential changes to both the operation of the civil law and to the legal profession. Whilst the intersection of law and political and social change can be approached in a range of ways, foregrounding the lawyers who are the connective tissue of the legal system, and who often hover in the background of historical scholarship, can provide important insights.

The division of the legal profession into its two branches, solicitors and barristers, obscures the range of its participants. From those that were being trained (students, articled clerks and pupils), to ‘high street’ solicitors, those working in the new law centres and practitioners in large commercial firms, to judges, academics and legal journalists, the profession changed and expanded in the latter part of the twentieth century. This was particularly so in the 1970s when, after a generation of stability (with some practices reaching much further back), change accelerated and the profession took on the broad shape that we see today.

Pressures came from within and without. From the inside, many ‘high street’ solicitors were fed up with the economy, the regulatory restrictions placed on their practices and with their declining status within their communities. ‘Radical’ lawyers sought to combine their activism with their working lives, something that the ‘Establishment’ had done for years. New entrants came into the profession having benefited from a post-Butler education and sought to challenge ideas about who could be a lawyer and what they should be doing. From the outside, the profession faced the challenge of adapting to new legislation, legal aid and government inquiries as well as new demands from the population they served.

This changing profession met an evolving legal landscape. A feature of the post-1945 world (and which accelerated in the early twenty-first century) was, as David Kennedy (2016) has written in the context of international law, ‘the legalization of ever more questions that might once have been settled in other terms’. The expanding post-war state brought more law and more (quasi) legal structures including administrative tribunals: for example relating to planning, welfare benefits and employment rights.

There was also an uptick in the amount of legislation being passed, which meant that a whole new range of individuals and companies had legal obligations to comply with or remedies they could pursue. Simultaneously, the legal landscape was being altered by ideas imported from the United States (such as legislating against discrimination and strategic litigation) and more directly by the laws of the European Community.

Lawyers held a unique vantage point as the law was increasingly used in norm-breaking ways as a tool of campaigners from across the political spectrum. As the 1970s and 1980s progressed, parliament became increasingly docile and the executive more powerful. The courts, however, began to establish themselves as sites where issues were contested. Though many within the profession were uncomfortable with this development, historians should be more attentive to the practices and impact of campaigning through law in this period.

So what is to be gained by integrating the legal profession into our scholarship? Most obviously we gain a case study of a profession and of an increasingly important part of the growing service sector adapting, or not, to the late twentieth century. But we also gain an insider view which helps reveal how the law operates in practice, something that E.P. Thompson recognised the importance of exploring, as did progressive legal academic Michael Zander who said in 1979 that:

[T]he law and the system written about in books, or as retailed in the anecdotes of practitioners, is often quite different from the law and the system in operation. Unless one is prepared to dig for the facts, one will never discover how the system actually functions. As arguments for and against social and political change increasingly came to be framed in legalistic terms, uncovering how the ‘system actually functions’ is vital. Understanding how the legal profession operated helps to do this. In contrast to the hopes and expectations of campaigners, lawyers can (often unhelpfully) see what can be achieved in practice and what is unrealistic. As the use of the law for activism, across the political spectrum, became more widespread, so the standing of the law and the legal profession changed, in ways historical scholarship is only tentatively recognising.

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