Tag Archives: legal history

  • In Conversation with Jim Freedman, Author of 'A Conviction in Question'

    A lively narrative account of the first case to appear at the International Criminal Court, A Conviction in Question documents the trial of Union of Congolese Patriots leader and warlord, Thomas Lubanga Dyilo. Although Dyilo’s crimes, including murder, rape, and the forcible conscription of child soldiers, were indisputable, legal wrangling and a clash of personalities caused the trial to be prolonged for an unprecedented six years. This book offers an accessible account of the rapid evolution of international law and the controversial trial at the foundation of the International Criminal Court.

    The first book to thoroughly examine Dyilo’s trial, A Conviction in Question looks at the legal issues behind each of the trial’s critical moments, including the participation of Dyilo’s victims at the trial and the impact of witness protection. Through eye-witness observation and analysis, Jim Freedman shows that the trial suffered from all the problems associated with ordinary criminal law trials, and uses Dyilo’s case to further comment on the role of international courts in a contemporary global context.

    We spoke with author Jim Freedman about the inspiration, process, and research behind his latest project.

    How did you become involved in your area of research?

    I‘ve always recognized the potential of international law to protect vulnerable populations and promote peace but for years the practice of international law was ineffective, the cases at The Hague were boring and national leaders were afraid of law’s potential. Then came the international criminal tribunals for (previous) Yugoslavia, Rwanda, Sierra Leone and Liberia as well as the international treaty that gave birth to the Rome Statute. It was then that the prospects of a truly international court with prospects for international jurisdiction emerged as an exciting reality. I could not resist.

    What inspired you to write this book?

    I had the good fortune to serve on the UN Panel investigating the roots of the 1996-2002 war in the Democratic Republic of the Congo. In the course of serving on this panel, I happened to find myself caught in a very unpleasant cross-fire involving child soldiers conscripted by the warlord rebel leader Thomas Lubanga. When the new International Criminal Court issued an arrest warrant for him and brought him for trial as its first defendant, I felt compelled, personally, to follow the trial.

    How did you become interested in the subject?

    The rapid increase in civil wars and conflict following the end of the cold war has been hard to ignore. It has stymied efforts to address the critical issues of poverty and human rights violations. As an academic and an international consultant, the increasing presence of conflict and its profound impact on efforts to reduce poverty required me to think about remedies to conflict in developing nations.

    How long did it take you to write A Conviction in Question?

    Approximately seven years. I had followed the trial of Thomas Lubanga from its beginning in 2006 but was finishing another book at the time. I began to commit myself fully in 2010. The trial concluded in 2013 and I worked as steadily as possible on the writing until early 2017.

    What do you find most interesting about your area of research?

    Bringing about justice for international crimes of war and crimes against humanity poses very unique challenges that are different from those faced by trials in domestic courts. The Rome Statute and the ICC trials have made a real effort to draw selectively from existing law conventions of various legal traditions and to find legal frameworks that are capable of addressing these very special and very serious international crimes. It is fascinating to follow how principles and practices at the ICC have struggled to find ways of bringing justice to victims of these crimes.

    What’s the most surprising thing you discovered during the course of your research?

    I have realized that it is not just the difficulty of drafting laws and trial procedures for an international court that poses major challenges for the ICC; it is also the lawyers themselves. Some lawyers who come before the court are very committed to justice. But some are just as much interested in showing their prowess in winning cases by manipulating evidence. There might be room for this in domestic law where high profile lawyers can also be celebrities, but it has little place in high stakes international criminal trials.

    Did you have to travel much concerning the research/writing of this book?

    The crimes have taken place in the eastern Democratic Republic of the Congo. Rwandan and Ugandan authorities have also been implicated in the perpetuation of these crimes. The trial itself has been held in The Hague, Netherlands. Extensive and repeated travel has been unavoidable.

    What was the hardest part of writing your book?

    I very much wanted the book to be an exciting read. At the same time, it had to present relatively complex legal issues clearly. Ensuring that the book was both eminently readable and, at the same time, represented the critical legal and academic issues accurately was perhaps the most difficult challenge.

    What are your current/future projects?

    I am currently in the middle of a book on the rise of Moise Katumbi, his unusual parentage and the role he is sure to play in opposing President Kabila and supporting free elections in the Democratic Republic of the Congo.

    What do you like to read for pleasure? What are you currently reading?

    I very much like to read non-fiction, especially books that present new ideas. This includes Neil deGrasse Tyson’s Astrophysics for People in a Hurry, Ashlee Vance’s Elon Musk: Tesla, Spacex and the Quest for a Fantastic Future and Jennifer Doudna’s A Crack in Creation, Gene Editing and the Unthinkable Power to Control Evolution.

    What is your favourite book?

    Lawrence Durrell's The Alexandria Quartet

     

  • Behind the Book with Greig Henderson

    Creating Legal Worlds: Story and Style in a Culture of Argument

    Greig Henderson is the author of Creating Legal Worlds: Story and Style in a Culture of Argument. Henderson analyses how the rhetoric of storytelling often carries as much argumentative weight within a judgement as the logic of legal distinctions

    How did you become involved in your area of research?
    For the past thirty years I have been a faculty member and lecturer in the Judicial Writing Program sponsored by the Canadian Institute for the Administration of Justice, a four-day program for federally appointed judges.  I also do work for the Public Prosecutors of Canada, the Ontario Council for Written Advocacy, the National Judicial Institute, and various other legal institutions.  Over the years, I have conducted dozens of writing seminars for courts, tribunals, and law firms.  So my angle of vision is a little different from that of a legal scholar.  I tend to look at things from the point of view of the writer and the rhetorical and stylistic choices he or she must make.  My interest in legal and judicial writing connects with my teaching and research in the Department of English at the University of Toronto, teaching and research that deal with rhetoric, narrative, and literary theory.

    What inspired you to write this book?
    The more I taught judges how to write, the more convinced I became that narrative, rhetoric, and style are essential elements of judicial writing and that a judgment is more akin to a short story or novella than to a syllogism or deductive argument.  Storytelling is crucial to legal decision-making because the primary task of the judge is to make a coherent and convincing story out of the sometimes conflicting and contradictory particulars of a given case.  Thus the angle of vision from which the story is told (narrative perspective) and the language and style in which it is couched (narrative voice) have an impact on the decision arrived at.  The agents a judge empowers to see and say are often the agents whose arguments prevail.

    What do you find most interesting about your area of research?
    It was exciting to find out that aspects of rhetorical and literary theory, in addition to being tools of interpretation and analysis, have practical implications for legal writing, that focalization (narrative perspective), verbalization (narrative voice), and agency (the conferring of voluntary choice and action on selected persons or entitities) have an impact on the efficacy and persuasiveness of an argument or decision.

    What’s the most surprising thing you discovered during the course of your research?
    It was also exciting to find out that there’s a lot of wit and eloquence in legal writing and that many lawyers and judges are gifted stylistic and rhetorical artists working in a different genre, a genre, I think, that repays close reading in the same way that a literary text repays close reading.

    What was the hardest part of writing your book?
    Aside from the discovery of arguments, the hardest part of writing is having the courage to omit things, things that are interesting but irrelevant.  “Keeping Fury Underground: Rational Justice in Aeschylus’s Oresteia” was my favourite chapter in the original manuscript, but, eloquent as I thought it was, it had to go because it wasn’t integral to the main argument.  There were lots of other things that had to go as well.

    What are your current/future projects?
    I’m currently revising a review article that will come out next month in The Osgoode Hall Law Journal.  The book is David Gurnham’s Crime, Desire, and Law’s Unconscious, and I’m currently reading a great book by Ummni Khan, Vicarious Kinks: S/M in the Socio-Legal Imaginary.  When judges write about sex and eloquently evoke what they morally revile, interesting things happen.

    What do you like to read for pleasure? 
    I’m a crime fiction junkie.  I love the classics—Hammett, Chandler, and the like—as well as contemporary stuff by Ian Rankin, Val McDermid, Andrea Camilleri, and many others.

     

  • Behind the Book with Christopher Moore

    9781442650145Christopher Moore is the author of The Court of Appeal for Ontario: Defining the Right of Appeal 1792-2013, recently published by University of Toronto Press and the Osgoode Society for Canadian Legal History.

    How did you become involved in your area of research?
    I am a historian by training, but I have always worked as a self-employed, trade-market book writer. I cover Canadian history very widely , but I had never done anything related to legal history until I got a call from an editor in 1994. The Law Society of Upper Canada wanted its history written; would I be interested? I heard later they had approached some leading legal scholars who said it would take ten years and cost a million bucks. I agreed I could do it a bit faster, on a smaller budget.

    University of Toronto Press published The Law Society of Upper Canada and Ontario's Lawyers in 1997. In the years since then, many details I could only allude to in that survey have been picked up and explored in detail in articles and even dissertations, which has been satisfying.

    And the Law Society liked what it got. Since then I have continued to practise legal history as a sort of "minor." From time to time I get a chance to do a legal history research project, and usually I jump at it.

    What inspired you to write this book?
    The best kind of inspiration: a call out of the blue. While Warren Winkler was chief justice of Ontario, he decided a history of his court, the court of appeal, would be one of the legacy projects of his term in office. With the help of the Law Foundation of Ontario and the Osgoode Society for Canadian Legal History, he got the project launched. And they thought I could help them with it.

    How did you become interested in the subject?
    I'm a working historian with my shingle out. If people want me to work on a historical subject that is important to them, chances are I am going to be interested.

    How long did it take you to write your latest book?
    A couple of years. Given Chief Justice Winkler's role in launching this project (see above), we wanted to wrap it up around the time of his retirement and publish it not too long after. He retired in December 2013, and that made a useful terminus date for the history. A deadline does help focus the mind.

    For a long time, the administrative files of courts were whatever a chief justice kept in his bottom left hand desk drawer - and threw away when he retired, usually. Pulling together sources for the evolution of courts is a nice historical challenge, because except for recent years they tend to be scattered and incomplete.

    What do you find most interesting about your area of research?
    My own legal histories have been institutional, but I hope they help lay down a framework and suggest questions for more theoretical analyses by specialists. And I do work hard at making legal history readable and accessible to busy lawyers and judges and other interested non-academics.

    Legal history is a rich and fruitful field for any historian. Coming to it late, without any legal training, I discovered lawyers and legal historians get involved in a little of everything: crime, politics, business, property, family, but in a focused and manageable way. Legal history has a firm spine in statutes and cases and legal institutions, but it offers a window on a great range of human experience. Given the turn away from political, constitutional, institutional history by historians, legal historians have re-invigorated that whole area with a lot of fresh perspectives. Legal sources can also open up a whole range of social history subjects, too: gender history, labour studies, lots else.

    What do you wish other people knew about your area of research?
    There is a lot of terrific work being done in Canadian legal history, by historians and by lawyers - and opportunities for publication too. The Osgoode Society has such a successful publishing program - with UTP mostly -- because it is supported by many lawyers who take their profession and its history seriously, and because it sets high standards and supports good scholars from many fields of study.

    What's the most surprising thing you discovered during the course of your research?
    As a freelance writer, I don't get to have researchers much. But for this project, support from the Law Foundation of Ontario let us hire a bunch of students to research in the case law of the Court of Appeal. I should not have been surprised, but I found out again: there are a lot of bright, dedicated, passionate, well-organized young people out there. I hope we find ways to keep them busy.

    Do you have to travel much concerning the research/writing of your book?
    Just from my home to Osgoode Hall in downtown Toronto, where they were good enough to find me a little work space in that remarkable building for a couple of years.

    What was the hardest part of writing your book?
    Writing is always the hard part. Writing is the only really hard thing I seem to be any good at.

    Did you learn anything from writing your book and what was it?

    The right of appeal seems to be one of those unchanging thousand-year old fundamentals of justice. In fact, it is a very historically-contingent thing - as historians might expect, but it sometimes surprises lawyers. Well into the 20th century one could be sentenced to death in Canada with no right of appeal whatsoever. My subtitle "defining the right of appeal" was a late choice, but it speaks to something I found myself pursuing all through this project.

    What are your current/future projects?
    In 2015 Penguin Canada is going to publish my Three Weeks in Quebec City, about the making of the Canadian constitution at Quebec City in 1864. It is part of their History of Canada series, edited by Robert Bothwell and Margaret MacMillan. And Canada's History will need a column soon. And I keep up my history blog .

    What do you like to read for pleasure? What are you currently reading?

    I just read Ian McEwan's short novel The Children Act. I was not thinking of it as legal history, but he does explore how judges think and the moral seriousness that judging engages. Judges I have met are pretty impressive people, by and large.

    What is your favourite book?

    Years ago someone told me about Montaillou, Emmanuel LeRoy Ladurie's extraordinary total history of a village in the Pyrenees in the late 1200s. I found a copy and read the whole long, detailed, challenging thing very slowly in French. When I finished it, I thought I was the only person in North America who knew this amazing book. A week later Time magazine reviewed the English translation. But for me it remains one of the great inspirational histories.

    It's legal history of a kind, come to think of it: it is based on the Inquisition records from when they interrogated the whole village on heresy charges.

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