The Hobbit – A Commentary on the Movie


I suppose it was inevitable that I should make some sort of commentary upon “The Hobbit – An Unexpected Journey”. I don’t know if this is properly a review. I am not enough of a movie aficiando to qualify as a reviewer so I am coming at this task as one with a modicum of knowledge about Tolkien and his works. This post is a departure from the general theme of this blog – Law and IT – so I trust that readers will bear with me for this departure.

So far  I have seen the movie in two if its incarnations – 3D IMAX and 2D. I have not yet seen the 3D HFR version although I understand it takes about 10 minutes to get used to the new format. I have chosen to familiarise myself thoroughly with the opening sequences before allowing myself to become distracted in this way and lose focus upon the “whole picture”. From this it may be concluded that I am prepared to see the movie more than once, and that it justified multiple viewings. That is a correct conclusion. Not only is the movie very good, but it contains layers of detail that require multiple viewings to achieve a full appreciation of the depth of the adaptation – much in the same way that Tolkien’s Middle-earth works have layers and a phenomenal depth.

What’s In A Name

This may seem to be a minor quibble, and one that arises as a result of movie labelling more than anything else. The title of the book is “The Hobbit or There and Back Again”. The movie series, if I can call it that, takes the primary title – “The Hobbit” and then adds on “An Unexpected Journey”. Subsequent sub-titles are “The Desolation of Smaug” and “There and Back Again”. Now this is not so much of a problem if it is used as an alternative to Part 2 or Part 3, although in some ways that would be preferable, but it is when the reviewers and the media get into the act, using the title entire when identifying the movie. I assume that at the Academy Awards or Golden Globes we will have to endure the articulation of the lead title and sub-title whereas the lead title is quite sufficient, at least while only one of the trilogy has been released. After all, you don’t hear or read reviewers of the book indulging themselves with the full title of Tolkien’s work. “The Hobbit” is quite sufficient. It should be so for those who are reviewing or identifying the movie for publicity purposes.

On the other hand, Part 2 and Part 3 sound a little unimaginative – that same level of unimaginativeness that accompanies the title of Lethal Weapon 2 from its predecessor, although having said that there is little to differentiate one of those movies from the other. Perhaps lack of imagination is a characteristic of more than just the title.

The Lord of the Rings movies were named after the titles of the books. Of course whenever there was an announcement or a review it HAD to be “The Lord of the Rings: The Fellowship of the Ring”. Why not just the subtitle. And for those who would say that Jackson was justified in the main title subtitle approach let me beg to differ for two reasons. The first is that the books were not so titled. The Fellowship of the Ring is so titled with a subtitle – being the first part of “The Lord of the Rings” and so on with the other two volumes. The second reason, perhaps more potent than the first, is that “The Lord of the Rings” was never intended as a trilogy but as a single volume divided into a number of books. The numbering of those books appears faithfully in the three volumes as originally released. The reason that they came out as three volumes arose from post-war shortages of paper and economic imperatives. It was only later that Tolkien’s vision was realised when “The Lord of the Rings” was published in a single volume – and you don’t see the separate volume titles on the spine.

I find reviewers on radio and television a little tedious when they feel that they have to announce in full “The Hobbit – An Unexpected Journey”. At least when I confront the words in print they register and I skip on, but I wonder WHY there is this insistence of the full verbiage – unless it is just to demonstrate some deep and arcane wisdom that lurks beneath those words. For me it is just a waste of time. I’ll stick with “The Hobbit”.

Telling the Story

Jackson has been very clever in his story telling and he links the opening of “The Hobbit” with “The Lord of the Rings” (hereafter LOTR) by having the initial action start at the time of the “Long Expected Party”. There are references to the event and a nice linking sequence where Frodo takes his books and heads off to the wood where, in LOTR, he meets up with Gandalf. From there the story is told by way of a prolonged flashback, the events of “The Hobbit” taking place some 60 years before Bilbo’s 111th party. From there the main story line sticks closely to the book with the occasional back story excursion. Perhaps the most significant departures from the book, at least in this first of the trilogy, is the presence of LOTR type Orcs and the journey of Radagast from Mirkwood to the lands west of the Misty Mountains to warn Gandalf of the new threat from Dol Guldur. There is an unusual chase sequence that follows involving Radagast and his Rhosgobel Rabbits that culminates in the seeing-off of a band of Orcs by a High Elvish cavalry unit.

The sojourn at Rivendell is punctuated by a meeting of the White Council – hinted at but never seen in the book – which adds a depth to the story. There are layers of Middle-earth history and culture that are only hinted at in the books that are more strongly realised in the movie, along with a somewhat sarcastic and empirically minded Saruman – setting the scene for his fall in LOTR. As an interesting side-line there is a suggestion by Saruman as he dismisses the concerns of Radagast that the brown wizard has something of a penchant for mushrooms. Of course, mushrooms play a part as the hobbits leave the Shire in LOTR in the encounter with Farmer Maggot in a chapter entitled “A Shortcut to Mushrooms”. But there is more of a play on mushrooms when one is aware that Tolkien’s son Christopher lives in an area in the south of France renowned for its mushrooms and to which Christopher is quite partial. That said, it should also be observed that Christopher has been quite dismayed at the treatment of his father’s works by the movie and associated industries.

The entrapment of the dwarves by the goblins is true to text, as is Bilbo’s encounter with Gollum. The script needed little work. The dialogue in “Riddles in the Dark” comes straight from the text. The visual realisation is superb as is Andy Serkis’ revitalisation of  Smeagol/Gollum. The duality of the nature of Gollum comes out with startling clarity. It is clear that Bilbo is dealing with a seriously disturbed character.

So how did Gollum lose the Ring? This is not made clear in the book, nor in the retelling that occurs in several places in Tolkien’s other work. All that we know is that Bilbo found it – he was meant to find it as Gandalf later said. Jackson offers the explanation that Gollum lost the Ring while he struggled with a semi-conscious goblin, and that is not beyond the realms of possibility. Bilbo was unaware of the presence of the Ring until he saw it glimmering and was unaware of Gollum’s loss. So if it was theft, it was theft by finding.

Barry Humphries plays a highly articulate Goblin King and when I saw this I thought he was a bit well spoken for such a grossly obscene character. However, a re-reading of the text makes it clear that the Goblin King was very articulate albeit rather uncultured. Well realised by Humphries, although the Goblin King bears no resemblance to him or any of his alter-egos save perhaps Sir Les Patterson.

The escape from the Goblins and the descent from the Misty Mountains is true to form, although the introduction of the Orcs gives an additional menace to “Out of the Frying Pan and Into the Fire”. The rescue by the Eagles is as dramatic as one could wish, and not without its breathtaking moments. How did they get ther?. Did the little moth to whom Gandalf whispered a message alert Gwaihir and his comrades to the peril of the Dwarves? Or was the message conveyed to Galadriel? The background musical liet-motif would suggest the latter but one needs to reflect upon an earlier summoning of the Eagles portrayed in LOTR. Gandalf has been taken prisoner by Saruman and is at the pinnacle of Orthanc. He whispers a message to a passing moth and in time is rescued by Gwaihir. From this it can be safely concluded that the message went direct to the Eagles without the intervention of Galadriel.

The first part ends with the delivery of the travellers to the eagles’ eyrie and the peak of Erebor far off in the distance. But Smaug is there, disturbed and awakened by the tapping of the thrush at the Back Door.

The Characters

Many of the characters in “The Hobbit” appear in LOTR, so there are a few reprises. Ian McKellen as Gandalf is a little more mysterious in this movie than in the other. He seems to have more secrets and is not entirely forthcoming with all that he knows, even to the White Council. There were times in the book when one could not be sure that he was altogether committed to the quest. That air of mystery percolates through into the movie. Having said that, he certainly does help out when needed, using his powers, albeit sparingly.

Hugo Weaving seems to be a younger Elrond and he is, by 60 years, although whether that would show in a being that had walked the earth for thousands of years is debatable. Christopher Lee does an excellent cameo as Saruman as does Iam Holm as an older Bilbo.

Richard Armitage as Thorin is wonderful. His scepticism for Bilbo is constant and blunt. Thorin may be a Prince but as far as Bilbo is concerned he is no diplomat. When reading the book I always thought Thorin was a bit of a bully towards Bilbo. The movie presents a different side to that dislike. Thorin is concerned with the mission and how it will succeed. He is focussed but at the same time he allows his prejudices and grudges get in the way. His contempt for the Elves goes back to the fall of Eerebor when Thranduil turned away and would offer no aid. Thus, when a rest at Imladris would seem essential for a number of reasons, not the least the interpretation of the Moon Writing, Thorin becomes truculent and it is only by subterfuge that Gandalf gets the Company to the safety of Imladris. Even then, Thorin is a grumpy and graceless guest. It is only when Thorin reconciles with Bilbo at the very end that we see that he will admit mistakes. Which brings us to Bilbo.

I wondered about Martin Freeman. He gave Dr Watson a different take in “Sherlock” and I enjoyed that. He does Bilbo very well and he manifests the “journey” of the character wonderfully. I have always been of the view that Tolkien places his hobbits on a journey of self-discovery and self-realisation (see “The Fanfare for the Common Hobbit” in D.J. Harvey “The Song of Middle-earth: J.R.R. Tolkien’s Themes, Symbols and Myths” (Allen & Unwin, London, 1985)  and this is especially displayed in the movie as Bilbo transitions from a total dislike of adventures to an impulsive particpant in the quest although he is frequently homesick and at times a bit pathetic. Who can blame Thorin. But Bilbo grows. He uses his wits to delay the trolls until the sun rises and we can see when he is at Imladris that he realises that his world-view has been narrowly focussed and that there are greater and deeper things in Middle-earth than just the bounds of the Shire and a pint at the Green Dragon.  It is when Bilbo says that he wishes to help Thorin and the Company regain their home – their turangawaewae – that we realise that Bilbo has passed from reluctant adventurer to active participant. He has grown and I have no doubt that growth will continue.

The Dwarves are excellent and rather more nuanced than the dour Gimli of LOTR. They are at times comedy and at others, deadly serious. At times they resemble caricatures of fantasy dwarves, at others, unique creations. The actors have been specially made up and “digitally managed” to look smaller than “normal sized folk” and their accents suggest that they hail from different parts of Britain – even those played by New Zealand actors, and there are a few of those throughout the film in a number of roles, and, given the controversy that accompanied the various tax breaks given to Warner Brothers to allow the filming to take place in New Zealand, it is proper that there should be roles for locals. Indeed, some of them, Mark Hadlow for example, have more than one role.

One New Zealand actor who features and who is unrecognisable under the make up and prosthetics is Manu Bennett who plays the Pale Orc, Azog. He plays the role with power and with menace, a truly excellent and totally unlikeable villain, and one whom I look forward to seeing again. Interesting that Jackson should cast a New Zealand actor as such a villain. He did the same with the character Lurtz, another totally reprehensible Orc leader who was played by Lawrence Makoare who also took the role of Gothmog in “The Return of the King”.

Visual Realisation

Most of the visualisation is, as was the case in LOTR, remarkable. The special effects are extraordinary and the technology seems to have reached the point where disbelief does not require suspending. In the sense that Tolkien expressed in “On Fairy Stories”, Jackson’s “secondary world” is complete and total from the first scene, although for this commentator, it was as return to a much loved and faithfully realised world.

Jackson has recreated Hobbiton from the green hills of Matamata to present a wonderfully bucolic atmosphere of peace and harmony. It is from this haven in which adventures do NOT happen, that the journeys to adventures commence. But things are different once we move to the wild lands – the atmosphere is far more threatening. The landscape is harsh and at times forbidding. Here trolls do dwell and orcs hunt, riding fearsome wargs. This is a journey that it not without risk, as Gandalf warns at the beginning. The chase in the wild lands, with Radagast providing a diversion – how DID he get across the Misty Mountains – is especially well realised.

But it is in the Misty Mountains, the battle of the Stone Giants and the capture by the goblins, that the true nature of the risks to be faced becomes apparent. Not only are the goblins the sworn enemies of the Dwarves, but Thorin bears the blade Orcrist, forged in Gondolin of old and well known to the goblins – something that additionally seals his fate – until Gandalf stages a release. But the suspense if not over as there is a frantic chase through the goblin tunnels and over wooden bridges that are – well, lets just say fragile is too strong a word.

At the same time as the Dwarves are confronting the Goblin King, Bilbo is trading riddles with Gollum – as I have said, wonderfully realised and perhaps one of the best scenes in the whole film.

The escape from the goblins and the final scenes among the burning forest before the arrival of the Eagles goes from climax to climax until one wonders what Jackson has next – and then there is the confrontation between Thorin and the Pale Orc, Azog

Some Additional Bits – How They Work

One of the questions asked was how it was that Jackson could manage three long movies from a 284 page book. The answer lies in the one word – backstories.

Although Tolkien tells us the backstory of Erebor and the Coming of Smaug, this wonderfully portrayed segment with the views of the magnificence of the Dwarvish realm under the Mountain, with its angles and planes and hard carved artistry (in contrast to the flowing Elvish style) and the magnificence of the dress of the Dwarvish aristocracy and the “steam powered” technology of dwarvish miners and smiths is truly wonderful.

The other main backstory introduces the Pale Orc, Azog whom we meet at the Battle of Azanulbizar when the Dwarves tried to retake Moria. This is not part of the Hobbit, but is derived from the Appendices to LOTR with one big difference, and it is dramatic licence that allows for that to happen. Thorin confronts Azog, defending himself with an oak branch – hence his name Oakenshield – lopping off the arm of the giant Orc. Thorin is convinces that Azog is dead, but he is only maimed, his lost forearm replaced with a rather brutal prosthetic that looks mighty uncomfortable.

The “truth” of the matter is that Azog was slain at Azanulbizar and his head was placed upon a spike. But Azog’s revenge provides a dramatic sub-plot to the movie. The savage Orc rides a giant Warg and is menace and hatred personified. The helpless Thorin is snatched from certain death by the arrival of the Eagles, setting up an opportunity for a future confrontation – the Battle of the Five Armies perhaps?

The third backstory is the realisation of the meeting of the White Council at Imladris. This follows the revelations of Radagast and his explorations of Dol Guldur (which do not appear in the book). I haven’t separated the Radagast scenes as a backstory because it provides the context and reason for the White Council meeting. We know that there was such a meeting to deal with the threat of Dol Guldur. This first meeting is, if I understand it aright, a preliminary meeting. Here we are told of the realm of the Witch-King of Angmar in the North and of the presence of a Morgul blade. The back story of Middle-earth itself begins to be revealed. But no meeting of the White Council is portrayed in The Hobbit. It is hinted at but never realised. It is here that the nature of the Elves and those who bear the Three Elven Rings is revealed in part, and indirectly. We don’t know that Gandalf, Galadriel and Elrond wield Nenya, Narya and Vilya but that they are Guardians is made clear. And Galadriel is clearly a High Elf of extraordinary power. We begin to see the depth of Tolkien’s creation and the layers that lie beneath the fairly straight forward primary story line of “The Hobbit”.

Magic Moments

Jackson has given us a number of what I call “magic moments” in LOTR. Gandalf;s confrontation with the Balrog, Helm’s Deep, The Mirror of Galadriel are some although my favourite – where I felt that someone had dreamed my dream – was with the arrival of the Rohirrim at Pelennor Fields. It may be seen here.

There is a similar scene in “The Hobbit” and it is the arrival of the Company at Imladris – I prefer the Elvish name to Rivendell. The visual realisation along with the Elvish liet-motif music is one of the most beautiful parts of the movie. One can only imagine how arriving at such a place, even for a Dwarf, must have been a relief. And the difference in architectural styles could not be more obvious as we see the flowing lines and liquid style of Elvish creations that abound in Imladris.

The other magic moment – or perhaps magic realisation – is Cate Blanchett’s portrayal of Galadriel, aided by the use of archetypal lighting and photography. The Blanchett\Jackson collaboration, in “The Hobbit” more so than in LOTR reveals the true ethereal majesty of one of the greatest of the High Elves. These are beings that dwell “between” the physical world and the spiritual realm of Valinor and the Undying Lands and we see hints of this remarkable nature in the portrayal of Galadriel. Much has to do with positioning and stance. At the last meeting of Galadriel and Gandalf, he stance is posed, almost for a pre-Raphaelite painting. The lighting isdramatic, enhancing Galdriel;s majesty. Her voice is quietly regal and she reveals her omnipotence more than once in her brief appearances. For me, the realisation of Galadriel is perhaps the most magical part of the movie.


The filming of Tolkien’s works has always been fraught with risk. The misgivings expressed by Christopher in his Le Monde interview (see above) may well have some justification especially to the literary purist and within the context of Tolkien’s “Mythology for England”. But art involves creation, synthesis, adaptation and development. Perhaps the movies would not have come to pass had the Tolkien Estate retained control of the movie rights, and I think it is safe to assume that we are unlikely to see a movie rendering of any of the tales of “The Silmarillion” or that appear in the “History of Middle-earth” for I do not think those rights passed with those of LOTR or “The Hobbit”. But what must be remembered is that Jackson;s works are “adaptations” of Tolkien’s stories. Tolkien was a writer. Jackson makes movies. The two art forms are different. One derives and adapts from the other. In the case of Tolkien’s work it from the literary to the cinema. Sometimes books will emerge from a movie script.

Is the adaptation faithful to the written creation? Yes it is although I must qualify that by observing the use of backstories to give the story the depth that it really needs. Is it worth seeing – I should say so. The second viewing was a rewarding one, and I look forward to the HFR 3D version.

I don’t think a host of Academy awards will measure the success of “The Hobbit” nor will box office returns. I think both have a certain inevitability. What will measure the success of the movies is the increased readership that will flow to “The Hobbit”, LOTR and “The Silmarillion” and a deeper appreciation of the depth and wonder of Tolkien’s creation.


The Googling Juror – Update

It was as clear as crystal that my discussion of the Googling Juror and the reasons why jurors go on-line was not going to be the last word on the subject and indeed discussion and debate can only assist in seeking solutions for preserving the principles underlying the jury trial in a new information paradigm.

To assist in that discussion and debate I have decided to post a few references that have come across my desk since I wrote the article as much to keep the research and the issue up to date as to inform further debate. Some are academic – others are in the nature of news. Some pre-date my article – mea culpa – I should have picked them up.

A helpful overview is a piece entitled “The Wired Juror Unplugged” by Susan McPherson and Beth Bonora from the Issue of Trial for November 2010. In a well documented piece they discuss the problem and emphasise the importance of telling jurors WHY they should not go on-line for information about the case or the law.

” The rapidly changing ways that people learn are clearly creating significant challenges for judges and trial lawyers. But the ways in which we choose to respond could well improve jurors’ level of comprehension and their overall experience in deciding cases. If lawyers attempt to engage jurors in a deeper understanding of the trial process and their role in it—and treat their curiosity and desire to make fully informed decisions with respect— jurors may be more motivated to play by the rules.”

The article includes some draft jury instructions, although the source for these is not credited. I assume that they have been crafted by the authors.

Marcy Zora has written a piece in the University of Illinois Law Review entitled “The Real Social Network: How Jurors’ Use of Social Media and Smart Phones Affects a Defendant’s Sixth Amendment Rights” (2012) U Ill L.Rev 577. The article advocates a “consequences” approach for juror research rather than preventative efforts. The abstract states:

” Internet resources, particularly when combined with new technologies such as smart phones with web-browsing capabilities, provide jurors with a new avenue to do independent research on the defendant or the case, or to communicate trial-related material before deliberations are complete, both of which violate a defendant’s Sixth Amendment rights. This Note analyzes the different approaches courts have taken in combating such violations, including the use of more specific jury instructions, restriction of juror access to electronic devices such as smart phones, use of voir dire to exclude “at risk” jurors, and monitoring of juror Internet activities. Ultimately, this Note argues that jury instructions, prohibitions on electronic devices in the courtroom, voir dire, and monitoring are insufficient to protect defendants’ Sixth Amendment rights. Courts, rather, should establish specific punishments for engaging in these prohibited activities, ensure that the jurors are informed of the punishments, and take a more proactive approach toward identifying violators by questioning jurors throughout the trial process.”

Ralph Artigliere, Jim Barton and Bill Hahn consider the issues in their article “Reining in Juror Misconduct: Practical Suggestions for Judges and Lawyers” (2010) 84 Florida Bar Jnl 8. The voir dire process – not used in New Zealand and other Commonwealth countries – is emphasised. The article concludes:

“Because juror misconduct threatens the fundamental fairness of a trial and is a due process issue, judges and trial lawyers should consider methods supplemental to the current standard and routine jury instructions throughout the trial. Practical methods to reduce juror temptation, such as taking away cell phones and other digital devices during deliberations, are needed in light of the current culture and technology that constantly connect jurors to other people and the Internet. Clear, strong instructions with follow up and reminders from the judge and the lawyers that clearly define right from wrong and disclose the consequences to jurors are part of the solution to reduce as much misconduct as possible. While the standard instructions are being considered for revision, judges and lawyers must be attuned to ways to minimize intentional or unintentional behavior which, left unchecked and unaddressed, will undermine fairness of jury trials. Judges and lawyers who learn better ways to address these issues should share them with the common goal of eliminating as much juror misconduct as possible from trials.”

Daniel A. Ross in the New York Law Journal for 8 September 2009 writes about juror abuse of the Internet. The article looks at the issue of jury instructions and Court policies on the use of electronic devices. The voir dire process is also considered. But the underlying message is the need for adaptation to the new technological environment.

Regardless of the precautions taken, it is unlikely that judges or lawyers will be able to eliminate juror misuse of the Internet, and they should adjust to a world in which control over information to or from jurors is much less effective than it was before the advent of Google, Facebook and the next emerging technology.

In an article entitled “Federal Judges on Guard Against Juror’s Social Media Activity” Mary Pat Gallagher examines a national survey of Federal judges which finds that there are concerns about juror use of social media and the steps that are being taken to address the problem. The article appears in the 29 March 2012 issue of New Jersey Law Journal. It is available via LexisNexis.

The importance of juror engagement in the trial process and steps that have been taken in Michigan to enable this are the subject of an editorial by Linda Mah in MLive for 17 September 2012 entitled “Courts’ Efforts emphasize the right and responsibilities of jury duty.” 

The editorial notes:

The Michigan Supreme Court deserves praise for a recently launched program that brought changes to the jury system to help jurors feel as involved as possible and to broaden the tools they have with which to decide a case….

In 2009 and 2010, the Michigan Supreme Court organized a pilot program that allowed judges to test proposed reforms in their courtrooms during actual trials. Among the initiatives were to allow jurors to submit questions for the witnesses and to discuss evidence among themselves prior to final deliberations.

The pilot program led to the adoption of “a comprehensive package of jury reform court rule amendments in September 2011, according to the Supreme Court news release.

The Akron Legal News for 18 September 2012 reports on the development of Federal model instructions and refers to the report of the  Conference of Court Public Information Officers (CCPIO) . The article notes:

A proposed new set of jury instruction for federal courts has been issued by a federal Judicial Conference Committee that relates with the fact that jurors bring their phones with them to court.

The proposed model instruction, which follows numerous state courts’ attempts to deal with this issue, would add about two pages to a standard jury instruction, one each at both the start of the trial and at the close of the case.

The model instruction follows in the footsteps of many state courts, which have been giving these sorts of jury instructions for a long time.

Concerns about the impact of social media in jury trials are not restricted to the United States. In Australia Attorneys-General have formed a task force to consider social media regulation and possible law reform following an online outpouring of grief and anger, in a murder case that has highlighted both the strong benefits and sharp risks of social media reporting on criminal investigations and prosecutions. Within minutes of the arrest of the man who was ultimately charged with the rape and murder of a young woman in Queensland, the grief and anguish earlier expressed on social media gave way to angry posts that included calls for the accused man to be tortured and “lynched.” There were also many posts that subsequently revealed the man’s face and speculated about a criminal history — posts that Australian media law experts argued could derail his trial. This is because of Australian sub judice contempt law that strictly regulates publication in the state in which a case is to be prosecuted. The article “Trial by Social Media Prompts Clash Over Accused Murderer” was published on the MediaShift website on 12 October 2012.

The whole issue of juror misconduct and how to deal with it has exercised the minds of judges in England. In November a protocol was issued by the President of the Queens Bench Division dealing with jury irregularities in general.

A “jury irregularity” is defined as:

“….anything that may prevent a juror, or the whole jury, from remaining faithful to their oath or affirmation as jurors to ‘faithfully try the defendant and give a true verdict according to the evidence’. Anything that compromises the jury’s independence, or introduces into the jury’s deliberations material or considerations extraneous to the evidence in the case, may impact on the jurors’ ability to remain faithful to their oath or affirmation.”

The protocol deals with two phases in which jury irregularity may occur – during the course of the trial and after the verdicts have been returned. The protocol is wide and covers more than the problem of “The Googling Juror.

The National Center for State Courts produces some interesting material on this topic. On the wider issue of increased engagement by Court leaders a paper by Garrett M Graff is interesting and though-provoking. Entitled “Courts are Conversations: An Argument for Increased Engagement by Court Leaders”, Graff takes the Cluetrain Manifesto as his starting point. In essence the Manifesto has come to define communication in a connected world. Although the Manifesto has markets as its emphasis, it makes the point that a global conversation has begun, enabled by the Internet. Interstingly, the Manifesto was published in 1999 before Web 2.0 ushered in the era of interactive connected communication.

Graff points out that the Courts have been a little slow to embrace social media but observes that communication is central to a court’s very being. In fact, courts are among the most critical forums (sic) for conversation in a civilized society.

One issue addressed by Graff, and which I have commented upon in my post “Why Do Jurors Go Online”, is that of user expectations in the digital paradigm.

As a new generation arrives with different expectations for conversations and interactions, courts now  face a fundamental challenge: How do they listen better to a public now used to conversing in different ways, on different platforms, and with different tools?
What we’re witnessing today represents fundamental changes in communication and behavior for a new generation. The legal system runs a serious risk that this new generation will find courts increasingly out of touch, bearing little resemblance to their lives or their chosen means of communication. To a generation raised with free-wheeling, constant, global communication, courts—with their traditions and structure—may seem as anachronistic as the oncepracticed legal tradition of tying a suspected witch to a stone to see if she sinks.

Not only must Courts understand how people are using communication tools, they must become more adept at using them themselves. The article concludes:

These new rules play out in the news on an almost daily basis, from Egypt’s Tahrir Square 
to Anthony Weiner’s Twitter feed,from the back alleys of Syria to Iowa’s Supreme Court retention election. While these disruptions have had some positive impacts—ensuring, for instance, a more responsive democracy and one where many more voices have an opportunity to be heard—this increased vulnerability for incumbents and institutions has troubling implications on judicial independence.

The answers here are much more unknown and yet the window for engagement is rapidly passing. The legislative branch and the executive branch are forging ahead. The judicial branch cannot cede all of this territory, all of these online conversations, to the other branches of government without a real cost to judicial independence. Courts cannot be left voiceless in this new world. While it’s important for the judicial branch to appear to be in touch with advances in communication, certainly, the challenge presented by the social media revolution is more fundamental than merely hopping on the hot new tech trend. The Cluetrain Revolution is altering the expectations and habits of society. The ability of courts to execute their intended functions and to achieve their stated goals of dispute resolution and justice-seeking, will be contingent upon how smartly and thoughtfully they meet society’s new expectations.

At some point in the not too distant future—perhaps this year, perhaps next, but for sure in the next five to ten years—every court will be confronted with a scenario that requires a thoughtful online communication strategy, one that incorporates YouTube, Facebook, Twitter, Tumblr, and platforms that today we can’t even imagine, into a coherent media apparatus. As any expert in crisis communication will attest, that future point will be too late to begin figuring out this world. On the day that it’s needed, the courts will already need to have the infrastructure and the following in place.

There is no silver bullet, no single correct answer for every state and every court. Instead, it is necessary for each court in every state to begin engaging as soon as it can.
Don’t wait. The world has already changed.

Finally an article in the Guardian entitled “Juries and Internet Research: We Need to Ask More Questions” (9 November 2011) refers to a valuable piece of research by Paula Hannaford-Agor, David B. Rottman and Nicole L. Waters entitled “Juror and Jury Use of New Media: A Baseline Exploration” published by the National Center for State Courts.

The US pilot study looked at a small sample of jurors in 15 civil and criminal trials in Connecticut, Florida, Michigan, Pennsylvania, Texas and Virginia. Judges, lawyers and jurors were asked to fill in questionnaires concerning new media use during the trials.

They found that 44% of jurors would like to use the web to research legal terms; 26% to find out more about the case; 23% to research the parties; 23% the lawyers; 20% the judge; 19% the witnesses and 7% their fellow jurors.

8% wanted to email their family about the trial; 5% wanted to connect with another juror; 3% wanted to connect with a trial participant, tweet or blog about the trial.

The report came hot on the heels of the case of Stephen Pardon who was jailed for four months for contempt for disclosing details of jury deliberations to a defendant. A further case involving social media use by journalists may yet come before the Courts.

The English attorney general Dominic Grieve has to decide whether to prosecute a journalist who allegedly tweeted material that breached the Contempt of Court Act during the trial of Vincent Tabak.

The tweets concerned pornography on Tabak’s laptop – evidence that had been ruled as inadmissible at his trial – and Grieve’s decision will be watched closely by an industry that has seen contempt of court re-emerge as a legal threat to publishers after years of dormancy.

There can be no doubt that the variety of uses of New Media by both jurors and others involved in the Court process is challenging. The writers of the Baseline Report published by NCSC recommend a wider study. Certainly there is a problem. Such studies can only enhance our understanding of the extent of it.

Revisiting “The Hobbit”

In a moment or two I shall depart to my High Street bookseller – yes, I have a real world hard copy bookseller and yes Unity Books is located on High Street in Auckland. They have a special anniversary edition of  The Hobbit  available which I ordered some time ago. I’m told that they also have a copy of “Hobbitus Ille” – “THE Hobbit” in Latin which can sit alongside my copies of “Winnie Ille Pu” and “Alicia in Terra Mirabili.” It will be interesting to see how the translator deals with Gollum’s curse – “Thief, thief thief! Baggins – we hates it forever” Tentatively I have reach “Fur, fur, fur! Baggins!  Id in aeternam odimus!” (Although some would suggest “nos odit eam in aeternum”)

I have had cause to reflect a little upon “The Hobbit” and the resonances that it brings. I am currently reading “There and Back Again” by Mark Atherton, a piece of work that I am enjoying immensely. Although one reviewer finds the publisher’s blurb “shameful” (the rest of the review is more positive) it has been well-received in Tolkien quarters.

What started the resonances particularly were the references by Atherton to the idyllic and atavistic location of  the beginning of “The Hobbit” in the pre-idustrial English country-side. Reference was made especially to the colour painting of “The Hill” that Tolkien executed in 1937-38. I remember that painting as the first encounter that I had with Tolkien’s world when I was 10 and opened “The Hobbit” for the first time. That, and the opening passages, I found imparted a warmth and a safety within my own mind that recognised that there were greater things in the wide world, but that certain places – home in particular – should be untouched by the tribulations of the outside world. For me that picture is so representative of tranquility and peace that every time I see it I recollect the feelings that I had when I first saw it.

Atherton puts it this way

“Hobbits live in a world that resembles an idyllic version of England in about 1890; a ahistorical English countryside – one that never underwent the notorious enclosures of the early 1800’s that so taxed rural workers and was captured in, say, the writings of the poet John Clare. It is an ordered ‘respectable society’ with a municipal organisation (signposts) and some basic industrial production (baked tiles) but otherwise basically a pre-industrial modern world. In brief it is anachronistic, a vestige of rural England.”

The extraordinary thing that happens whenever I read “The Hobbit” is that I am not only entering Tolkien’s world but returning to another world that I inhabited in 1957. The resonances and remembrances from that time are startlingly clear and the feelings and sensations that I had when reading it then return now. There are occasions when the same thing happens when I read “The Lord of the Rings”. The first appearance of the Black Rider in “The Fellowship” was a sleep-depriving experience and I still feel the dread when I re-read the passage. My reading the “The Lord of the Rings” was a somewhat complex process, for I borrowed each volume separately from the library. After I finished “The Fellowship” the second volume “The Two Towers” was not on the shelf. However, Volume 3 was and I borrowed it, so hungry was I to return to Middle-earth and thinking that I could pick up the threads later. But the problem is that the final images of “The Fellowship” and the sundering of the Fellowship at Amon Hen and the funeral of Boromir lead straight to the image of Pippin bouncing along with Gandalf to Minas Tirith after the episode with the Palantir following the fall of Isengard. “The Two Towers” came later and it all made sense, but first impressions, it seems, endure.

I suppose part of the explanation for these apparent “flashbacks” lies in the fact that I came to “The Hobbit” and “The Lord of the Rings” at a very impressionable age. But why the enduring memories and the continued fascination. Is there an aspect of avatism at work that keeps certain archetypal resonances alive. Certainly some of the themes in Tolkien’s Middle-earth writings are constants throughout the tales of all cultures. This is not surprising, given that his objective was to create a “mythology for England”. I have written on Tolkien’s themes, symbols and myths in my “The Song of Middle-earth – J.R.R Tolkien’s Themes, Symbols and Myths”. For example the quest of the hero and the stages of development of the heroic figure, so graphically identified by Joseph Campbell, are apparent in Aragorn. The tragedy of Turin Turambar, recounted in “The Silmarillion” and “The Children of Hurin” as well as in “Unfinished Tales” reflects themes of incest that occur in Northern mythologies as well as in those of the Greeks. The Creation myth appears in “Ainulindale” in “The Silmarillion” and a clearly worked eschatology is present throughout, reaching a partial demonstration in the fall of Numenor.

It was a certain curiosity and dissatisfaction that caused me to write “The Song of Middle-earth” in 1984-5. I said then that I thought that there was something greater, more significant, more meaningful than was on the printed page. Part of that derived from the depth that Tolkien himself had created. Gondolin, the origin of the eleven blades that appear in “The Hobbit” is mentioned by Elrond, and there are hints of an earlier time throughout, exemplified by the telling of tales from days gone by when Bilbo returns to Rivendell after the completion of the dwarves quest.

Part of my enquiry in “The Song” involved a consideration of “what had gone before”. AT the time of writing, the monumental twelve volume collection – “The History of Middle-earth” – had not been published. Indeed, “The Book of Lost Tales” was published as I was readying “The Song” for publication.

The dissatisfaction that I felt was with much of the (then) published literature about Middle-earth. With the exception of Carpenter’s “Biography” and “The Inklings” and Shippey’s “Road to Middle-earth” most of the writers and commentators had missed a vital point. I did not think that Tolkien’s work was ,erely derivative – that he had examined other mythologies and extracted tales, elements and themes and had plopped them into his creation. That to me was a simplistic approach and unflattering to the creator. Nor did I think that critical comparisons with the earlier greats of English and Europens liertature wholly productive. There was soemthing deeper and more meaningful to Middle-earth than that.

I decided to eschew the derivative approach and avoid, as much as I could, comparisons with other works and examine and analyse the Middle-earth works as they stood – alone. And the obvious starting point, and one which has received scant examination in the earlier literature, was myth. Tolkien had left for me, and for others, an abundance of clues- that he was creating a Mythology for England- and I began my examination from the point of view of myth and mythology.

Rather than examine the works as derivative from other mythologies, it became clear that the approach should be thematic – study the themes that are common to most, if not all, mythologies and ascertain what elements are present in Tolkien’s work. As the book showed, the elements are satisfied.

The starting point must be The Silmarillion, a difficult book to read and with which to come to terms. But it is essential to an understanding of the creation and development of the Tolkien cosmos, as well as being a history of the Elves in Middle-earth, and it establishes the framework within which is set the Third Age as portrayed in The Hobbit and The Lord of the Rings. Yet The Silmarillion gives hints of other writings and accounts that deal with the Matter of Middle-earth. Some of these accounts are collected in Unfinished Tales, and in this volume we find more detail of the acts of Tuor and of Turin, a background to the realm of Numenor, the Tale of Aldarion and Erendis, and much information about the Istari, the palantiri and the early history of the Third Age. For one interested in the stories, Unfinished Tales is essential. For the aficionado it provides a penetrating insight into the manner in which Tolkien worked.

As I have said, when “The Song” was being prepared for publication, Lost Tales I was published. I made the following observations at that time which, with the bebenfit of hindsight, still are valid.

The Book of Lost Tales I comprises a part of what may be called a ‘protoSilmarillion’. Most of the ingredients of the tales of The Silmarillion are present, although it is obvious, both from the Tales themselves, and the notes by Christopher Tolkien, the editor, that the Tales underwent many fundamental changes before they became The Silmarillion. But Lost Tales I is, in my opinion, almost as significant as The Silmarillion in that it indicates that it was always Tolkien’s desire to create a Mythology for England. To give even greater credence to his intention (as if we needed more than the confessed desire of the writer), the manner of the telling of the Tales is significant. Eriol, a traveller from Middle-earth (or The Great Lands), comes to the Isle of Tol Eressea and in his travels in that land comes to a dwelling which is, in some respects, a forerunner of Imladris in Middle-earth. During his sojourn he requests and is told tales of early Arda. Most of the tales are told in a common-room before a Tale-fire which is ‘a magic fire, and greatly aids the teller in his tale’.  The tales are told by Lindo, Rumil and Gilfanon, Elvish inhabitants of Tol Eressea. Now the significance of the setting is that the Tales are recounted orally, and indeed are so written that they have a lyric and rhythmic quality when read aloud.

Thus, in introducing his myth, Tolkien resorts to the oral or bardic tradition of story-telling, a feature of mythological tale-telling that predates Homer. Apart from the themes of the cosmological myths that comprise Lost Tales I, the whole cycle is distinctively myth oriented and is a clear indication of Tolkien’s desire and intention. Christopher Tolkien gives us tantalising hints of things to come in later publications, but perhaps most interesting is the reference to Aelfwine of England. Aelfwine is another realisation of the character Eriol.

 Later, his name changed toAelfwine (Elffriend), the mariner became an Englishman of the ‘Anglo-Saxon period’ of English history, who sailed west over the sea to Tol Eressea – he sailed from England out into the Atlantic Ocean; and from this later conception comes the very remarkable story of Aelfwine of England, which will be given at the end of Lost Tales. But in the earliest conception he was not an Englishman of England: England in the sense of the land of the English did not exist; for the cardinal fact (made quite explicit in extant notes) of this conception is that the Elvish Isle to which Enol came was England that is to say, Tol Eressea would become England, the land of the English, at the end of the story.

 Apart from the very method of tale-telling, the major themes that I have examined in The Silmarillion are present, as one would expect, in Lost Tales. Certainly some major changes in plot as well as changes in matters of detail have occurred. But this too is consistent with the development of myth. The tales of myth are never constant, and there is no one ‘authorised version’ (even the Bible has its Apocrypha). Rather, as I note later, the tale-tellers vary, refine and embellish. But the constant ingredient is the basic theme, and certainly the themes that Tolkien propounds and illustrates do not change.

The Silmarillion, Lost Tales and, to a degree, Unfinished Tales set the stage for the drama at the end of the Third Age recounted in The Hobbit and The Lord of the Rings. The mythology is complete and the questions that have been bedevilling readers for the last forty or fifty years may could finally be answered. But I believe that the main inspiration for the questions and the curiosity that readers have for Middle-earth lies deep in the realms of myth. Because the Middle-earth saga was conceived as a mythology the reader, perhaps only subconsciously, recognises myth as the sound of a far-distant trumpet echoing through the mind. Can the reader, perhaps, recognise within his own experience the desire for a subcreated realm of faerie that is as meaningful to him or her as were the great tales that rang through the rafters of the mead halls of early England and the Viking lands, or which were majestically and sonorously intoned by Homer sitting by the tale-fire on an evening in ancient Greece.

Perhaps that ‘desire for dragons’ that we all have is now realised in Tolkien’s created mythology for England.

But is there more than mythological depth that allows us to recognise many of Tolkien’s characters and description, albeit vaguely? What is it that transports us back to that first reading so vividly and completely. The archetype may provide an answer – the wise old man, the Lady in the Wood, the dark stranger are all recognisable.

Without heading too deeply into the area of psychoanalysis, some of these issues are dealt with in an excellent and amusing work entitled “The Individuated Hobbit – Jung, Tolkien, and the Archetypes of Middle-Earth” by Timothy O’Neill (Houghton Mifflin 1979) The book provides a provocative and highly original explanation for the phenomenon of Tolkien’s works on the modern imagination. Correlates between Carl Jung’s theory of the collective unconscious and Tolkien’s mythology for Middle-Earth. O’Neill points out case after case of how the themes and characters of The Lord of the Rings closely parallel’s Jung’s archetypes, and how the entire narrative can be read in Jungian terms as the central human struggle for what Jung called individuation – the healthy realization of the self. 

O’Neill was in the military when he first came to Tolkien and then was a professor of Engineering Psychology at West Point – hence his reference in a passage that follows to “Othello’s trade”. He sets out his purpose as follows:

The real power of Tolkien’s world is as much in form as in content. The difference between myth and a story is just that: a story becomes myth (or, in diminutive form, “fairy tale”) when a certain form is imposed on it. What that form should be is the subject of this book. The most immediate hallmark of that form is the degree to which it evokes images in the reader – images that are in harmony with the common psychological heritage of all Man.

 What I am really suggesting in these pages is that there are two kinds of reality: the objective reality of personal experience and perception, which we call consciousness, and the subjective reality which is outwardly directed. The first is practical, demonstrative, and concerned with outward-looking energy and social reality. The second is inward-looking, symbolic, and profoundly affected not only by Man’s day-today encounters with the world, but also by the collective experience of Man through the ages. The power of enchantment in Middle-earth is not to be found in this outward-looking consciousness, but is rooted in a deeper, far more ancient part of Man: a seldom-glimpsed realm “where the shadows lie”

 Just how this happens has, I think, escaped the critics and cultists. There have been detailed explorations of odd place names, exhaustive searches for obscure source and mythological parallel – for the “meaning” that Professor Tolkien assured us repeatedly was not there. To the extent that there is no allegorical meaning or hidden satire, I am in agreement with the author. But meaning comes in various disguises, and if plot and content are to be taken at face value and simply enjoyed, then the reasons for the attractions must be found in form. The meaning, if meaning is the correct word, of this source of attraction is unique for each reader; each man’s psyche is his own, despite strains of commonality, and will make of the charms and joys of Middle-earth what it will without the slyness of satire or the blunt instrument of allegory.

 My purpose is to demonstrate that the framework of Tolkien’s world is truly in harmony with “real” myth and fairy tale, that they are woven of the same strand of human psychology. The common denominator of all such expression is to be found in the theoretical framework of analytical psychology – in the concepts of the collective unconscious and in the search for Self-realization. This is the vast complex perspective of Carl G. Jung and his inheritors, a set of theories only dimly grasped by most psychologists and frequently (if unfairly) dismissed as nonempirical, mystical, and nearly incomprehensible. Although the impact of Jungian theory is considerable- more in art and literature than in psychology – its delicate mechanics (what we will call its “constructs”) are hardly even addressed in introductory psychology texts. It is this obscurity which has, I think,caused its applicability to Tolkien’s work to elude readers. I hope to correct this oversight.

O’Neill’s book is thorough but is not without amusement and a certain whimsy. The following passage discusses the archetype of the dragon and the encounter between Smaug and Bilbo:

But Bilbo is not through spelunking – ahead lie the Lonely Mountain and a far more formidable foe than wretched Gollum. Bilbo must now earn his title of burglar – or “expert treasure-hunter,” as he would doubtless prefer to be called – by dickering with Smaug the Mighty, “greatest and chiefest of catastrophes.”

 The dragon is a common symbol in the mythologies of a variety of times and cultures. In form, it is a fusion of serpent, bird, and other animals, and I cannot resist digressing for a few paragraphs in honor of this fantastic beast and its importance in understanding the imagery of the psyche.

 The winged snake is encountered in odd places. The medical profession in this country has embraced the caduceus as its symbol. This is actually an error- the proper symbol, and that which is used elsewhere, is the staff of Asklepios, a stick about which is entwined the single serpent. I shall not bother with the mythological basis for this emblem, since it does not influence our present concerns; but the caduceus, whether it is appropriate for the medical profession or not, gives us a hint about winged snakes in general. The caduceus is the winged staff of Hermes, the Greek god who served as messenger and patron of travelers. He is also the intermediary between gods and the underworld; unifier of light and darkness, his common symbol being the phallic berm placed at crossroads. He is also the guide of dead souls, which is not encouraging for patients whose doctors embrace his staff. The symbolic nature of the caduceus is fairly straightforward: the serpents are chthonic, earthy, close to the underworld, suggestive of Man’s lowly phylogenetic origins. The wings reflect the soaring soul of Man, the consciousness that sets him apart from his scaly and furry forefathers. The central staff binds the two together- mating snakes, the instinctual substrate, flying bird, the sunlit potential of consciousness.

 The union of opposites is thus an essential part of such figures, among which we must place the dragon. Those familiar with mythology will point out that the Serpent of Midgard, who gnawed for ages at the roots of the Norse world tree Yggdrasil, was a “worm”: creeping and wingless. Remember, however, that he was compensated (as was the rest of the complex Norse world) by the eagle that perched in the top branches of the tree. The two symbols are not yet fused, and carry on no more than a spirited dialogue through the good offices of a squirrel whose fate it is to scamper up and down Yggdrasil’s loftiness from one to the other until the day of Ragnarokk.

 But Smaug the Mighty is a full-fledged (should one say “fledged”? His wings are batlike and featherless) fire-drake, long of tooth, broad of wing, bad of breath, and shudderingly articulate. Tolkien, for some reason which will remain unguessed, was very nonevaluative in his general treatment of dragons. The worms of The Silmarillion are a pretty grim lot, true; but then there is little frivolity about that work, composed of the tear-soaked chronicles of the Eldar’s trials in Middle-earth. I have already made clear to the reader that I am not impressed by the Elves’ studious garment-rending and handwringing Had they bothered to stop and talk for a few moments with any of the dragons set against them, they might have found entertainment enough to offset the confounded eternal weariness of the world. When Tolkien removes his Elvish persona and confronts dragons as the plucky hobbit or the sturdy yeoman-farmer, worms fare better. Chrysophylax Dives is merely living up to his miserly name, and doing so with wit, gusto, and a pinch of pathos. Smaug is certainly not to be trifled with, and admittedly dealt rather summarily with the Dwarves in the time of Thrain; but he is older now and perceptibly more mellow, at least willing to chat for a while before belching napalm and ending meaningful dialogue. And if he is greedy, well, that is what dragons are supposed to be; we cannot blame him for that, nor expect altruism of a fire-drake any more than empathy from a weeping crocodile. I really find Smaug altogether more worthy of sympathy than some hobbits – Lobelia Sackville-Baggins would have smitten the pesky lizard with a furled umbrella and sent him off whimpering. But perhaps after all pestiferous and acquisitive relatives are more likely to interrupt our serenity in contemporary times than thundering dragons.

 Bilbo is terrified. Sting and Ring are hardly more than lucky charms in the great treasure cave, not proof against the fearful flamethrower. Smaug is what we of Othello’s trade call an area weapon: precise location of the target is not required, nor is fastidious marksmanship necessary for good terminal effect. But Bilbo has guts that belie his species’ reputation. None of the Dwarves, not even the venerable, muchdecorated Thorin Oakenshield, who proved his mettle in the Goblin Wars, has volunteered to help him burgle treasure with the dragon so near. As he treads the tunnel coming ever nearer to the uninviting red glow the “least Tookish part of him” wavers, wishing yet again for the comfy hole at Bag End.

This is the persona (the “good decent hobbit”) railing impotently at the anima (the Tookish part, personified as the great Belladonna, from whom he has surely inherited the propensity for disturbing sleeping dragons); but the objections are too little·and much too late. He is committed to the path of Self-realization, like it or not. In fact, the controlled social mask is already slipping away, no longer supported by the need to maintain a reputation for the neighbors. The nature of Bilbo’s journey across the landscape of the psyche is revealed by his reply to Smaug’s inquiry: “Who are you and where do you come from, if I may ask?”

 “You may indeed! I come from under the hill, and under the hills and over the hills my paths led. And through the air. I am he that walks unseen.”

 Over hill and under hill, indeed; Bilbo is too modest (if that is possible). “I am the friend of bears [a reference to Beorn, the theriomorphic figure we will discuss in more detail later] and the guest of eagles. I am Ringwinner and Luckwearer….”

This is a complex and pregnant sort of name. It traces his path through conscious and unconscious (over hill and under hill) that has led him this far; establishes his foundation in both worlds (“friend of bears”- i.e., chthonic, earthy, bound to the animal shadow, the instinctive foundation of the psyche; and “guest of eagles”- one who may also soar at will in the light of consciousness). He glories in his new position as pivotal figure in the drama, the link between worlds (Ringwinner) and the key to fortune (Luckwearer) by possession of the magical transcending treasure.

 But Bilbo succumbs to a near fatal weakness at this critical point. He has in the euphoria of the moment reveled too thoughtlessly in Belladonna’s triumph, ignored the conscious part of him, which would have been more cautious and circumspect in talking to dragons. Smaug is sure-footed in the dark world, he has dwelt there long; Bilbo is a stranger in the perilous realm, and he has barely stepped into it before the incautious foot is thrust in his mouth, tipping off the wormto dangerous details of the plan. “Thief in the Shadows!” snarls the beast, “my armour is like tenfold shields, my teeth are swords, my claws spears, the shock of my tail a thunderbolt,my wings a hurricane, and my breath death!”

 This uncouth outburst is one that reveals the volume and fury of the long-repressed libido, the surging, powerful energy that has for so long been denied conscious symbolization.Smaug has for the moment ceased to be a transcendental, transforming symbol and become pure animal power, untamed psychic drive. But transforming symbol is his major role still, the winged serpent, and like St. George, Bilbo must slay or outwit the beast to pave the way for the Self’s advent. He has already done this, though he has no way of knowing it, with his careless clues – Smaug is soon up and around for the first time in years, and Bilbo has provided the clue through the help of the magic thrush that allows Bard the Bowman to finish the monster and quench his flames. The black arrow pierces the gap in Smaug’s armor, and the treasure is now lying unguarded in the darkness under the mountain.

What O’Neill does is that he takes the themes of myth and weaves them into consciousness in a way that allows the reader to exclaim “of course!” But the starting point must always – always – be myth. For this is what Tolkien wrote and this was the object of his creation and he weaves his mythic creation into his narrative tales of the Third Age of Middle-earth.

Peter Jackson has assisted in the creation of a sub-myth. Part of that is to describe New Zealand (or parts of it) as Middle-earth and we immediately recognise Jackson’s re-creations of Tolkien’s creation. In some respects, Jackson has added extra layers to the myth and has re-visualised it, for reading Tolkien activates the mind’s eye. For that reason, making a movie adaptation is difficult and fraught with risk, because it may challenge an internal visualisation by the reader. For me, Jackson’s  movies work. There is a part in “The Return of the King” when the Rohirrim arrive with the dawn at Minas Tirith. Tolkien is probably at his best, and it is one of my favourite passages. It is a long way from “In a hole in the ground there lived a hobbit” to the Homeric majesty of the Ride of the Rohirrim.

“But at that same moment there was a flash, as if lightning had sprung from the earth beneath the City.  For a searing second it stood dazzling far off in black and white, its topmost tower like a glittering needle; and then as the darkness closed there came rolling over the fields a great boom.

At that sound the bent shape of the king sprang suddenly erect.  Tall and proud he seemed again; and rising in his stirrups he cried in a loud voice, more clear than any there had ever heard a mortal man achieve before,

Arise,arise, Riders of Theoden! 
Fell deeds awake: fire and slaughter! 
spear shall be shaken, shield be splintered, 
a sword-day, a red day, ere the sun rises! 
Ride now, ride now! Ride to Gondor!

With that he seized a great horn from Guthlaf his banner-bearer and he blew such a blast upon it that it burst asunder.  And straightway all horns in the host were lifted up in music, and the blowing of the horns of Rohan in that hour was like a storm upon the plain and a thunder in the mountains.

Ride now, ride now! Ride to Gondor!

Suddenly the king cried to Snowmane and the horse sprang away.  Behind him his banner blew in the wind, white horse upon a field of green, but he outpaced it.  After him thundered the knights of his house, but he was ever before them.  Eomer roder there, the white horsetail on his helm floating in his speed, and the front of the first eored roared like a breaker foaming to the shore, but Theoden could not be outpaced.  Fey he seemed, or the battle-fury of his fathers ran like new fire in his veins, and he was borne up on Snowmane like a god of old, even as Orome the Great in the battle of the Valar when the world was young.  HIs golden shield was uncovered, and lo! it shone like an image of the Sun, and the grass flamed into green about the white feet of his steed.  For morning came, morning and a wind from the sea; and darkness was removed, and the hosts of Mordor wailed, and terror took them, and they fled, and died, and the hoofs of wrath rode over them.  And then all the host of Rohan burst into song, and the sang as they slew, for the joy of battle was on them, and the sound of their singing that was fair and terrible came even to the City.”

Jackson’s rendering was brilliant and he added stuff that wasn’t in the text, but could have been. The scene where Theoden rides up the line of the assembles Rohirrim, touching their spear tips with his sword is sheer genius. My young companion at the premiere leaned over to me and said “someone has dreamed the same dream”

The apparent hopelessness of the task ahead – the phrase “ride now to ruin and the world’s ending” carrying echoes of Ragnarok and the eschatological myth also summon up the ntaure of sacrifice for a cause epitomised by Macaulay

Then out spake brave Horatius,
The Captain of the Gate:
“To every man upon this earth
Death cometh soon or late.
And how can man die better
Than facing fearful odds,
For the ashes of his fathers,
And the temples of his gods?”

There can be no doubt either that along with stereotyping, advertising uses its own archetypes and develops its own mythic backstories.  Although it is a blatant piece of commercialism a very clever “pre-flight briefing” as been developed by Peter Jackson and Air New Zealand. It is entitled “An Unexpected Briefing.” Enjoy.

Along with the book I reckon I might just grab some tickets for “The Hobbit”. They are on sale now and the movie opens on 12 December.

An International Criminal Tribunal for Cyberspace – Judge Stein Schjolberg’s Recommendation

At the 13th International Criminal Law Congress in Queenstown Judge Stein Schjolberg of Norway presented a paper on and the arguments for an International Criminal Tribunal for Cyberspace.

Stein Schjolberg is an extraordinary Court of Appeal Judge in Norway. He was appointed as a Judge in 1984 and as the Chief Judge of Moss Tingrett Court from 1994-2010. Until 1984 he served as a prosecutor and Assistant Commissioner of Police in Oslo.

Judge Schjolberg is an international expert on cybercrime, and one of the founders of the global harmonization on computer crime     legislation. He was a Fulbright-Hays Scholar at Stanford Research Institute (SRI International) in 1981-1982. In cooperation with INTERPOL he organized the First INTERPOL Training Seminar for Investigators of Computer Crime in Paris, 1981. Judge Schjolberg has served as an expert on cybercrime for several international institutions.

He has published widely on computer crime and cybercrime legislation, in addition to court technology issues. He was appointed by the National Center for State Courts, United States, as a member of the International Think Tank on Global Court Technology in 1999-2001.

Judge Schjolberg was in 2007-2008 appointed by ITU in Geneva as the Chairman of the global High-Level Experts Group (HLEG) on cybersecurity, including almost 100 experts from around the world. The HLEG published two reports in 2008, The Chairman´s Report and the Global Strategic Report on Cybersecurity. Judge Schjolberg was awarded the ITU Silver Medal, in recognition of his contribution as the Chairman of the HLEG.

Judge Schjolberg is the Chair of the EastWest Institute (EWI) Cybercrime Legal Working Group. This post is an outline of his September address. His website is Cybercrime Law. This note outlines Judge Schjolberg’s paper

The Need for an International Criminal Tribunal for Cyberspace

At the moment there is no recognised international substantive cybercrime law although the European Convention on Cybercrime (see below) is a start.  The difficulty is that several Governments, international organisations and vital private institutions in the global information of financial infrastructures have been targeted by global cyber attacks in the recent years.

These cyber attacks of the most serious global concern that intentionally cause substantial and comprehensive disturbance of critical communications and information infrastructure should be within the jurisdiction of an International Criminal Tribunal.  Other cybercrimes such as illegal access, illegal interception, data interference, system interference, misuse of devices, forgery, fraud and offences related to child pornography could also be included in the statute.  Those acts may be prosecuted domestically as well as internationally whenever the conduct is considered as cybercrime of global concern. Any intrusions upon religious or political values in cybercrime legislation is a matter that Judge Scholberg considers should be avoided.

Judge Scholberg considers

“the International Tribunal should have the power to prosecute persons committing or ordering to be committed the most serious violations of international cybercrime law, namely the following acts committed wilfully against computer systems, information systems, data, information or other property protected under the relevant international criminal law; by destroying damaging or rendering unusable critical communication and information infrastructures, causing substantial and comprehensive damage to or interference with national security, civil defence, public administration and services, public health and safety, or banking and financial services.”

International Initiatives

In 2010 four main working groups were established in order to make recommendations for new international legal responses to cybercrime.  The United Nations initiated a comprehensive study of the problem of cybercrime. The Twelfth United Nations Congress on Criminal Prevention and Criminal Justice in Salvador Brazil April 2010 recommended in the Salvador Declaration, article 42, to invite the UN Commission on Crime Prevention and Criminal Justice to convene an open ended intergovernmental expert group to conduct a comprehensive study on the problem of cybercrime as well as the response to it.  The recommendation was adopted by the Commission, and by the United Nations General Assembly in its Resolution 65/230.  This comprehensive study is to examine the topics “with a view to examining options to strengthen existing and to propose new national and international legal or other responses to cybercrime”.

On June 27th 2010 the EastWest Institute established a cybercrime legal working group in order to advance consideration of a treaty or a set of treaties on cybersecurity and cybercrime.  The members are independent non-governmental global experts on cybersecurity and cybercrime.  The working group is to develop recommendations for potential new legal mechanisms on combating cybercrime and cyber attacks and develop a consensus building set of proposals related to international law.  The group had its first meeting in Brussels on March 1-2 2010.  To obtain the widest range of input it is desirable to include in such working groups the global private sector and industry in the process of establishing a global treaty or a set of treaties on cybersecurity and cybercrime.

The United States and the European Union established a working group in cybersecurity and cybercrime at the EU/US summit in November 2010.  The group is tasked with developing collaborative approaches to a wide range of cybersecurity and cybercrime issues. Among its efforts is advancing the Council of Europe Convention on Cybercrime, including a programme to expand accession by all EU member States, and collaboration to assist States outside the region in meeting its standards and becoming parties.

Commonwealth leaders at a meeting for Law Ministers and Attorneys General from 44 countries in Sydney July 2011 recommended that the Commonwealth Secretary establish a multi-disciplinary working group of experts.   The purpose of this group is to

“review the practical implications of cybercrime in the Commonwealth and identify the most effective means of international co-operation and enforcement, taking into account, amongst others, the Council of Europe convention on cybercrime, without duplicating the work of other international bodies”.

The Convention on Cybercrime

The 2001 Council of Europe Convention on Cybercrime was an historic milestone in the war against cybercrime and came into force on 1 July 2004.  32 States have ratified the Convention.  However, Russia has not signed the Convention and has made a statement that they do not accept all of its articles.  However by ratifying or acceding to the convention, States agree to ensure that their domestic laws criminalise the conduct described in the substantive criminal law section.

The Convention on Cybercrime is an example of a legal measure. Although of a regional nature it could well be that other countries might consider the possibility of acceding to the Convention or use the convention as a guideline or at least as a reference for developing their internal legislation and by implementing the standards and principals it contains in accordance with their own legal system and practice.

However the Convention, it should be remembered, is based upon criminal cyber conduct of the late 1990s.  New methods of conduct in cyberspace underpinned by criminal intent must be addressed by the criminal law.  Phishing, botnets, spam, identity theft, crime in virtual worlds, terrorist use of the internet and massive co-ordinated cyber attacks against information infrastructures must be considered.

Governmental and vital private institutions in the global information and financial infrastructure have been targeted by global cyber attacks.  In 2011 the UK Government was a target when cyber attacks were launched on Whitehall and the defence industry. Both the Canadian and South Korean Governments suffered global cyber attacks.  In Australia the computer system in the Parliament was accessed in March 2011 by global cyber attacks and the Prime Minister’s and several Ministers’ computers may have been compromised.   The European Union has been targeted by cyber attacks and the Commission of the European Union and in 2011 the EU External Actions Service became the victim of a large scale cyber attack that severally affected email systems.  The French Government experienced cyber attacks on the countries finance economy and unemployment ministry in 2010 and 2011 over a 2 month period before the G20 meeting and in private industry the UK and US Stock Exchanges have been the targets of global cyber attacks aimed to spread panic and leading global financial markets.  The parent company of NASDAQ in New York has been one of the victims and in conjunction with Wikileaks, global cyber attacks were launched against Visa, Mastercard and Paypal.

These are only a few examples that some countries demonstrate that critical information infrastructures maybe under attack.  The issue of cyber attacks and the nature of cyber crime and the threat to critical information infrastructure is not imaginary.  It is here and now.  Cyber attacks on sensitive national information infrastructure are rapidly emerging as one of the most alarming national security threats that may be faced by a State and are becoming matters of global concern.

Setting Up the International Criminal Tribunal for Cyberspace

Judge Scholberg has proposed a Tribunal to deal with criminal global cyber attacks against critical Government and private industry information infrastructures, or where such cyber attacks endanger peace.  He proposed one way that this could be achieved is by expanding the jurisdiction of the International Criminal Court whilst recognising that any such ratification would have to be accepted by China, Russia, and the United States to have any realistic effect.  He considered that some form of Tribunal is currently the only global alternative. It may be that in the future the global community could then try for a more permanent global court solution for cyberspace.

Judge Scholberg considered that under Chapter 7 of the United Nations Charter, the UN Security Council could establish an International Criminal Tribunal for Cyberspace for the investigation prosecution and sentencing for global cyber attacks.  He considered that the framework of the United Nations charter was the most effective means for this, given that it would be binding on all members of the United Nations.

There are precedents for such activity.  The Security Council asserted its rights, authority and jurisdiction based on the Charter when it established the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia. In the case of the International Criminal Tribunal for Cyberspace, the UN Security Council would have the authority to refer cases to it and could request an investigation.

Judge Schjolberg considers cyberspace the fifth common space after land, sea, air, and outer space.  There is great need for co-ordination, co-operation and legal measures among all nations.  Superintendance of behaviour with global consequences to information or information infrastructure is largely uncoordinated and limited to local or domestic law. Judge Scholberg considers that it is necessary to make the international community aware of the need for a global response to urgent and increasing cyber threats and acts of cyber warfare.

An International Criminal Tribunal for Cyberspace would be fully independent and would be established to ensure that the gravest global cyber attacks in cyberspace do not go unpunished.

Judge Schjolberg considered that the chamber of an International Criminal Tribunal for Cyberspace should consist of 16 permanent Judges all appointed by the United Nations.  These Judges could be divided between 3 trial chambers and 1 appeals chamber.  Judges would be appointed for a period of less than 4 years.

Another alternative may be that 5 of the permanent judges be appointed from each of the 5 veto holding permanent members of the United Nations Security Council.  He considered that the seat of the International Criminal Tribunal could be the Hague or Singapore or both.

Prosecution of International Cybercrime

The prosecutor would be a separate part of the International Criminal Tribunal for cyberspace and be responsible for the investigation and prosecution of the most serious cyber attacks or cybercrimes of global concern.  The prosecutor’s office should be independent not only of the Security Council, but also of any state or any international organisation or other organs of the Tribunal.  The prosecutor should not seek or receive instructions from any Government or from any external source but could be advised by the prosecutor’s advisory board that may consist of 5 prosecutors appointed from the 5 veto wielding permanent members of the UN Security Council.

Judge Schjolberg proposes another possibility. Perhaps the advisory board members could have the power of each to veto any indictments before the International Criminal Tribunal for Cyberspace. However, abstention should not be regarded as a veto.

Procedural matters would not be subject to a veto and the veto should not be used to prevent a decision by the prosecutor to open any investigation or to avoid discussion of an issue.

The prosecutor’s office would be assisted in the investigation of cyber attacks by global enforcement through co-ordination with Interpol and a global virtual task force.

The Global Assembly of Interpol has approved the establishment of the Interpol Global Complex for Innovation (IGCI) which includes a digital crime centre based in Singapore.  It is expected to go into full operation in 2014 and to employ a staff of 300 people.

The Interpol Digital Crime Centre (IDCC) would be active in 3 main areas – cybercrime investigative support, research and innovation and cybersecurity.  The IDCC is expected to

“serve as a global hub for cybercrime issues, co-ordinating with national cybercrime investigators and authorities in Interpol’s member countries and with private partners in the technology industry.  The IDCC will bring all affected groups together to generate innovative solutions leading to the ultimate goal of creating a secure cyber world”.

In addition the prosecutor’s office would have the power to seek the most efficient assistance from experts in a global virtual task force established with key stake holders in the global information and communications technology industry, the financial services industry, the private sector, non-governmental organisations, academia and global law enforcement through Interpol.  Experts could be sourced from Google, Facebook, You Tube, Apple, Microsoft and similar organisations.  The global virtual task force should work together in a strong partnership to co-ordinate integrate and share information for the prevention and effective combating of global cybercrimes and deliver real time responses to cyber attacks.  Their goal should be to ensure that all global means and resources available are used to prevent identify and take real time actions against cyber threats.


Judge Schjolberg’s proposals are an example of the incremental growth of international institutions designed to deal with conduct that has a global impact. It seems that there is a recognition of the problem by the international community. Judge Scholberg’s proposed solution is on the table. We await further developments or proposals with interest.

Lawyers, Judges and the “New” Media

Lawyers, Judges and the “New” Media


It occurred to me as I was writing the post about Judges and the Social Media that we have actually been down this track before – where lawyers and Judges have seized upon the new media and used it to publish and propogate their views about the law. The first information technology was the printing press, and lawyers and Judges began to use or influence the use of the new technology in the sixteenth and early seventeenth centuries. In this post I want to discuss the use of the printing press by sixteenth and early seventeenth century Judges and lawyers and consider the reasons why they chose to go into print. I have written a much more comprehensive study of the printing press as an agent of change in law and legal culture in the period 1475 – 1642 but the examples I have selected are John Rastell and Anthony Fitzherbert, Edmund Plowden and Sir Edward Coke.

John Rastell and Anthony Fitzherbert

John Rastell (c1475 – 1536) studied law at Middle Temple where he was an untter barrister by 1502. He moved from London to Coventry but returned with his family in 1508 where he ran a successful legal practice for over 20 years.

From about 1509 he also seems to have begun to print and publish: initially where he was dwelling ‘at the Fleet Bridge at the Abbot of Winchcombe’s Place’, then by 1515 near St Paul’s (where his premises comprised a room for the press, a shop, and living quarters), and eventually from Michaelmas 1519 at Paul’s Gate, Cheapside. Rastell’s shop sign was a mermaid; one of his two printing devices included a merman and mermaid.

He printed a compilation of the statutes of Edward V and Richard III and concentrated on producing law books, and over the years came increasingly to edit or write the books his press produced. Over his career his publication list came to comprise over fifty titles (a few he re-edited, some reprinted), including, in 800 folio leaves, the ambitious La graunde abridgement de la ley (1514–16) by Anthony Fitzherbert.

Rastell’s Prologus to the work states:

And though that I myself of small learning and discretion have enterprised with the help of divers other gentlemen, and taken labors and also intend more labors to take, as well for the ordering of the calendars of said great book of abridgements as in the numbering of the quotations and refennents of the cases therein, yet the only praise of the making of the said great abridgement ought to be given to Anthony Fitzherbert, serjeant at law, which by his great and long study of many years continuing hath compiled and gathered the same

Anthony Fitzherbert, one of the best known legal writers of the early sixteenth century was a senior lawyer having attained the rank of Serjeant at Law in 1510, a Kings Serjeant in 1516 and in 1522 became a Judge of the Bench of Common Pleas. He too saw the advantages and benefits of the new technology and was one of the earliest lawyers to have his own work put in print in his lifetime.[1]

La graunde abridgement, was an enormous enterprise for its day, a massive digest of 13,845 cases from the year-books arranged under alphabetical headings.  A smaller but more original work was Fitzherbert’s La novel natura brevium which was published towards the end of his life in 1534. It was inspired by the so-called ‘old Natura brevium’ (the name given to two or more different medieval treatises, or lecture courses, on writs) but Fitzherbert’s was a new treatment and much more detailed, with references both to recent cases and to the abridgement. It remained the principal reference work on writs until the abolition of the forms of action in the nineteenth century. The original French text (with the forms of writs in Latin) was reprinted eleven times, the last edition appearing in 1635.

A third book, which appeared in the year of Fitzherbert’s death, was The New Boke of Justices of the Peas (1538), which appeared in both law French and English editions bearing the same date but differing slightly in content and arrangement. The adjective ‘new’ again paid due respect to an earlier work, this time the anonymous late medieval Boke of Justices of Peas which was printed about 1506, but Fitzherbert’s treatment was characteristically more thorough and detailed. These two ‘books of justices’ are hailed as the first printed treatises on English criminal law, and Fitzherbert’s remained in use until it was overtaken by Michael Dalton and Sir Edward Coke in the seventeenth century. There were eight reprints between 1540 and 1566, and an enlarged edition by Richard Crompton in law French (1583) which was itself reprinted five times.

Rastell printed the first volume of the Graunde Abridgement, his small press being utilized for humanistic texts of his brother-in-law Thomas More’s circle.

Elements of humanist thought underpinned important objectives for printing the law. One was the educational objective of making the law more easily accessible by printing it in English. The print properties of standardisation and dissemination were both recognised and perceived as assisting in the fulfilment of humanist educational goals. The other element was the deeper societal issue of the concept of the “common weal” or the common good. This theme is one that pervades the discussion about access to law and was one of the main societal imperatives of the time. The “common weal” was a concept that operated on a number of different levels having primarily political but also social implications. In all its various manifestations the “common weal” was perhaps the most significant underpinning for access to law, developing from humanist precepts until it took on a life of its own

The law was the basis for a functioning society for the good of all rather than for the wealth, power or honours associated with the Church, feudal ties or established power elites although even the humanists did not see this as a universal concept, in that generally the law favoured the propertied classes rather than the entire community. The importance of the law and the legal process as a part of the ordered State, promoting the values of  harmony and unity was recognised and thus the study of the law was part and parcel of the humanist curriculum. The publication of law was a part of the wider educational process and another aspect of the informed order advocated by the humanists. Printed law books were less dangerous than the printed Bibles and religious tracts that were present on the Continent and were being imported into England. Ross points out that there was little threat arising from dissident translations of the statutes or “non-conformist” Year Books or treatises. Yet printed law books made dissent more formidable. They made legal resources available to those who wished to mount legal challenges to the establishment.

Print became a facilitator in the educational process. The humanists wished to extend their audiences and their influence. The English followers of Italian and Northern European humanists had a respect for the power of the press to spread standardised classical texts which were the basis for the study of philosophy and rhetoric. Henry VIII, whose Court included a number of prominent humanists, used print propaganda to generate support for the “Kings Great Matter” and the break with Rome, although the humanist message remained the same. Rastell was advocating printed legal information in English in the 1520’s before the onset of the Tudor Revolution.

The language in which the law was expressed was also addressed. Humanist support for a law press and a preference for English or Latin over the arcane law French as a means of expression of the law were additional elements of what we would describe as “access to law.”[2] In this way the audience who could read and clearly understand the law as well would be extended – if legal works were printed in English – in addition to a general desire to widen the audience for books in general. As the interest in a law press grew so did the call, in print, for a broader diffusion of legal knowledge among lay people. Rastell claimed that law  “kept secretly in the knowledge of a few persons and from the knowledge of the great multitude may rather be called a trap and a net to bring the people to vexation and trouble rather than a good order to bring them to peace and quietnesse.”[3]

Rastell’s position was expressed by others. The force or quality of statute law may have depended upon whether or not it was printed and therefore public, or not printed and therefore private. Justice James Dyer stated that if the latter “a man shall not be compelled to take consuance of this so easily as if it was in print.”[4]

This reflects Thomist legal thought which held that to obtain full status law had to be promulgated. In England promulgation was carried out by the sheriffs or by direct communication with the judges. Some legislation provided for its own promulgation.[5] However, did failure to promulgate invalidate law? Doe is of the view that such a proposition is doubtful although it was clearly preferable.[6] However, the press, although embraced for its various qualities, was also viewed with some suspicion particularly by religious elites who were contending with the dissemination of printed disputative literature which challenged long-held tenets of the faith. In answer the humanist law book publishers advanced three main reasons for the printing of the law.

The first two reasons involve what today would be referred to as “access to law” issues. First, being able to read and understand the law had a benefit in making the subject aware of the requirements for peaceful, responsible and virtuous living. The subject received a benefit and, in addition, such an understanding was in the interests of the “common weal.”

Secondly was the suggestion that greater availability of legal information would serve to loosen the stranglehold upon the law held by the legal profession. Law books would not replace lawyers but would allow the citizen to inform himself of the law as it affected his daily life, but when there was doubt or litigation the good subject should

“Resort to some man, that is learned in the laws of this realm, to have his counsel in such points, which he thinks doubtful concerning those said statutes, by the knowledge whereof, and by the diligent observing of the same, he may the better do his duty to his prince and sovereign, and also live in tranquillity and peace with his neighbour, according to the pleasure and commandment of almighty God”[7]

Law books were also of benefit to the legal profession in that they served an educative function. Thus, both lawyer and citizen would benefit by increased availability of printed legal information, and for the citizen the press uncovered that which had previously been unknown.

The third reason was that law preserved order and was the antithesis of chaos. This was a message that resonated in an England for whom the memory of the Wars of the Roses was still fresh. Chaos could be kept at bay by law. Promulgation and dissemination which were part and parcel of the operation of law could be reinforced by law publishing thus strengthening and enhancing order.

There can be no doubt that the early involvement of humanists in law book publishing had a profound effect not only upon the way in which law books were presented but also upon the way in which law books were viewed by the community. It was probably fortuitous that the Rastells were early pioneers of law publishing and although their output was not great their influence extended over a fifty year period.[8] They not only set the benchmark for the publication of useful law books but provided an example for others, as well as having a continuing influence even from exile. John Rastell’s son, William, a lawyer like his father and later a Judge, continued the family involvement in law printing although after the reign of Mary he did so from a distance. As a Catholic he left England after the accession of Elizabeth but his law publications continued to be printed by Richard Tottel.

Rastell’s association with the humanists of More’s circle, together with his expressed views about the availability of legal information and its expression in English gives us a clear indication of his motives for using the new technology of print. Not only was he a lawyer and an editor of law texts but he was actually a printer which demonstrates a real commitment to the new information technology.

The benefits and the advantages that the new technology presented in the dissemination of legal information for the orderly society and for the common weal are continued today in current access to law and legal information projects such as Austlii and the growth of serious legal information blawgs containing commentaries and explanations of the law. The beat goes on.[9]

Edmund Plowden

Edmund Plowden (c. 1518 – 1585) began his legal studies in 1538 at Middle Temple (one of the Inns of Court) tradition having it that he was so studious that he did not leave the inn once during the space of three years. He began recording cases he heard in court from at least 1550. In 1571 Plowden published Les comentaries, ou les reportes de Edmunde Plowden vn apprentice de le comen ley  a volume of law reports that decisively broke out of the older year-book tradition, and was the first to be published by the author in his own lifetime and under his own name. The keys to Plowden’s approach were two resolutions he claims to have made at the beginning of his law studies. The first was:

[to] be present at, and to give diligent attention to, the debates and questions of law, and particularly to the arguments of those who were men of the greatest note and reputation for learning.[10]

The second was,

to commit to writing what I heard, and the judgment thereupon, which seemed to me to be much better than to rely on treacherous memory.[11]

But why did he put the Commentaries into print? Although law printing had been active in London for ninety years – the first law text was printed in 1481 – there was nevertheless a culture of information sharing of handwritten notebooks or casebooks among coteries of lawyers in the Inns of Court.

Lawyers saw the noting and gathering of cases as a matter for their own benefit and information. Theirs was a specialised profession with its own practices, rituals, hierarchy and indeed language.[12] There was little commercial gain to be had from printing large numbers of varying case reports of some antiquity and which may not find a market, especially if lawyers preferred to compile their own notes and share them with their colleagues. Thus it could be argued that at this time lawyers looked to themselves for their legal information and those in the commercial world, sensing that there was not a market, discontinued large scale printing of the manuscript Year Books.  This was a challenge to the new technology and indicates that putting legal material in print, and particularly contemporary legal material, was not a universal objective. Not only did the printers make a choice about the materials that they would print, but the lawyers themselves made a choice about whether their materials would be widely disseminated or restricted to the coterie.[13] The dissemination of written legal information was not the exclusive province of print.

Not only legal information was distributed in this way. Among the coteries that shared material were the Tudor poets who preferred not to see their work in print. The lawyer John Selden made the comment “ ’tis ridiculous for a Lord to print verses, ’tis well enough to make ’em to please himself, but to make them public is foolish.”[14] Why was it that Edmund Plowden decided to move from the usual way of information sharing and move into the (relatively) new medium of print. He provides his own explanation.

“I thought it my duty to decline making public my own vindication of the arguments of men more learned than myself, and to keep the work for my own private advantage and therefore avoid the censure of affecting a more acute and discerning judgement than I really had. But by and by an accident happened, which inclined me and (As I may say) forcibly compelled me  to make this work public. For having lent my said book to a very few of my intimate friends, at their special instance and request, and but for a short time, their clerks and others, knowing thereof, got the book into their hands, and made such expedition by writing day and night, and in a short time they had transcribed a great number of cases, and especially of the first, contrary to my own knowledge and intent, or of those to whom I had lent the books; which copies at last came to the hands of some of the printers, who intended (as I was informed) top make a profit of them by publishing them. But the cases being transcribed by clerks and other ignorant persons who did not perfectly understand the matter, the copies were very corrupt, for in some places a whole line was omitted, and in others one word was put for another, which entirely changed the sense, and again in other places spaces were left where the writers did not understand the words, and divers other errors and defects there were, which, if the copy so taken had been printed, would have greatly defaced the work and been a discredit to me. And besides this, they had omitted to transcribe the pleadings according to the records, and had only transcribed the cases and arguments upon them, so that the benefit, which the reader would have reaped from the records of the pleadings in this book (which is also a Book of Entries of all others most gifted and tried) would have been totally lost. Wherefore, in order to prevent and avoid these defects, I considered with myself whether it was not better for me to put this work in print. During which consideration letters were sent to me by all the iustice of both benches and by the Barons of the Exchequer, requesting and encouraging me to make it public and at last, upon these and other motives, and hoping that it might be of some benefit to the students of law, I resolved (as you see I have done) to put it in print.”

Plowden’s attitude towards the concept of authorship is unusual.  There can be no doubt that had the work been printed without his supervision or authority, his name would have been associated with it.  Plowden was very careful to ensure that the quality and integrity of his work would be maintained and, for that purpose, it would be necessary for him to supervise its publication.  Plowden was one of the rare examples where the name of the author was at least as important for the sale of the work as the quality of the content and, certainly, any printed publication with the name of Plowden associated with it would find a ready market within the legal profession.

Earlier reports were little more than summaries of special points in the argument and more often than not completely omitted the decision and the reasons for it. The Year Books especially were seen as pleading guides rather than providing an accurate report on the substantive issue before the Court. The decision in the matter was not important to the reporters. The changes in pleading practice, including the shift to written pleadings resulted in a corresponding shift in the way in which cases were presented and argued in Court. The issue became the effect of the pleadings rather than the nature of the issues and form that they should take. Whereas the cases reported in the Year Books comprised the dialogue between counsel and the Bench that had as its objective the formulation of the issue before the Court, the written pleadings defined the issue. What became of interest to the reporter was the argument on that issue and the outcome on that issue that was settled by the Court. Thus written pleadings became a necessary part of the report. The dialogue on the pleadings became insignificant and the decision of the Court assumed more significance.

Plowden’s reports were limited to those cases where a point of law needed to be decided. Unlike the Year Books each case was identifiable by name. At the beginning there was a full heading including the name of the parties, the date of the argument, the Court concerned and the term in which the proceedings were commenced. The body of the report contained the official record of the pleadings, a full note of the arguments of counsel and the Judges and the substance of the final judgments. In this way all the necessary information regarding the decision was contained in one place. This method was a significant and influential innovation and set a new benchmark for printed reports presented in a similar style.

So successful were Plowden’s reports that they were the subject of a number of re-printings and were themselves the subject of an abridgment by Thomas Ashe in 1597 and 1607 which was later translated into English by Fabian Hicks and published in 1650.[15] Plowden’s style influenced those who followed including Coke who praised the Commentaries as “exquisite and elaborate.”[16]

The praise accorded to Plowden by Coke is not merely an example of post publication validation of a text. It demonstrates the complex interactions that surrounded the acceptance of printed works. The new medium presented a challenge to Plowden in terms of the potential that it presented for loss of control of the content and a possible damage to his reputation. It does not seem from the available evidence that Plowden had any other reason to print apart from the urging of friends and to preserve the work from an opportunistic printer. Once the work was printed under his supervision, Plowden’s objective was complete. Yet his name associated with the printed work was almost as important as the fact of printing.[17] And the way in which others recommended his text demonstrates that printing of itself did nothing special other than make the work more readily available. It is the interaction with and by others involved in some way with the work that enhanced its presence in print. Although it could be argued that a similar sort of interaction could take place with manuscript,[18] the properties of the new technology meant that interactions with others relied upon as well as enhanced those properties. Print fixed Plowden’s work – his copy was standardised and, importantly, it was available. The interactions  of others ensured that advantage was taken of those qualities.

And so it is today. But the big difference is that Web 2.0 allows for a greater level of interation, comment and engagement. Feedback, which in Plowden’s day would have been by letter of by personal contact, is wider and more extensive and not limited to a select coterie. But once again, the theme behind the particular song remains the same.

Sir Edward Coke

Sir Edward Coke (1552 – 1634) was one of the most influential and controversial judicial figures of the early seventeenth century. He started his legal studies in 1571 and at some point during his student days he began keeping a commonplace book; in 1579, possibly in connection with his taking up a readership at Lyon’s Inn, Coke began keeping detailed records of cases. He was called to the bar in 1578 and went on to become one of the most prominent lawyers in England. He became Attorney-General, prosecuted Sir Walter Ralegh  and was also involved with the interrogation of those involved in the Powder Treason and was one of those who prosecuted Guy Fawkes, describing in lurid detail the traitor’s death of hanging, drawing and quartering.

Coke was appointed Chief  Justice of the Court of Common Pleas on 30 June 1606, being created serjeant-at-law for the occasion, and Chief Justice of the King’s Bench on 25 October 1613. His tenure in these courts proved turbulent, being marked by friction with James  I

But by this time Coke had been publishing his Reports, first in manuscript and later in print. His first well-known work was a manuscript report of Shelley’s case, circulated soon after the decision in 1581. This was in keeping with the circulation of manuscript notes kept by lawyers and which I have already discussed.

In 1600, afraid that unauthorized versions of his case reports might be printed—and probably following the example of Edmund Plowden, with whom he had worked and whom he revered—Coke issued the First Part of his Reports. By 1615 he had put out eleven volumes, making available more than 467 cases, carried the imprimatur and the authority of the Lord Chief Justice. These case reports provided a critical mass of material for the rapidly developing modern common law. Reversing medieval jurisprudence, which had often relied on general learning and reason, Coke preferred to amass precedents. Coke’s view was ‘The reporting of particular cases or examples is the most perspicuous course of teaching the right rule and reason of the law’.[19]

Was Coke, like Plowden, a reluctant user of the new technology. His attitude to seeing his work in print was initially one of reluctance but from 1600 when the first volume of the Reports was printed through until the end of his life this attitude changed to the point where he became an enthusiastic adherent of printing the law. The changing political climate and Sir Edward’s progress from Attorney General, which was the position that he occupied when the first volume of the Reports were printed, through his position as a Judge, his fall and his subsequent career in politics provides an explanation for this shift in attitude. As noted there was circulation of manuscript copies of Coke’s case notes amongst select members of the legal fraternity and, like Plowden, Coke arranged for the printing of the first volume,[20] fearful that unauthorised versions may find their way into print. He was mindful of his reputation and of the value that would be attached to Reports coming out under his name.

“I have sithence the xxii yeere of her Maiesties Raigne, which is not xx yeeres compleat, observed the true reasons as neere as I could, of such matters in Law (wherein I was of Councell & acquainted with the estate of the Question) as have bin adjudged upon greate & mature deliberation; And as I never meant (as many have found) to keepe them so secret for mine own private use, as to deny the request of any of my friend to have either view mor copy of any of them; So til of late I never could be perswaded (as many can witness) to make them so publique, as by intreaty to commit them to print.”[21]

Coke revisited the purpose of publication from time to time throughout the Prefaces. In the Preface to the Seventh Volume.

“I set downe in writing, out of my short observations which I had taken of the effect of every argument (as my manner is, and ever hath beene) a summarie memeoriall of the principall authorites and reasons of the reasolutions of that case, for mineowne privat sollace and instruction. I never thought to have published the same, for that it was not like to give any direction in like cases that might happen (the chiefest end of publishing Reports) ….Now when I ended it for my privat, I was by commandment to beginne againe ( a matter of no small labour and difficultie) for the publicke. For certainly, that succinct method and collection that will serve for the privat memorial or repertory, especially of him that knew and heard al, will nothing become a publique Report for the present & al posteritie, or be suffcient to instruct those readers, who of themselves know nothing, but must be instructed by the report onley in the right rule & reason of the case in question……

I thought good as well for thine instruction and use (good reader) as for the repose and quiet of many, in resolving of questions and doubts (wherein there hath beene great diversitie of opinions) concerning their estates and possessions to publish some others that are common in accident, weightie in consequent, and yet never resolved or adjudged before.”[22]

At an earlier stage in the preface to his First Reports, Coke expressed his criticism of the quality of some of the reports that had been published, demonstrating a concern about reliability:

For I have often observed, that for want of a true and certain Report the case that hath bin adjudghed standing upon the recke of manie running Reports (especially of such as understood not the State of the Question) hath bin so diversely drawne out, as many times the true parts of the case have bin disordered and disjointed, and most commonly the right reason & rule of the Judges utterly mistaken.[23]

and it is perhaps noteworthy that in the preface there is no expression of the humility that certainly appears in Plowden’s preface. One may be justified in asserting that Sir Edward considered that his Reports avoid these pitfalls and were a true and correct report of the case, albeit with his own interpolations.[24] Control by authors over unauthorised printing was a problem in the early seventeenth century. Accuracy and credit were clearly matters which concerned Coke and perhaps it is ironic that despite his concerns, The Complete Copyholder which was never authorised for printing was nevertheless published.[25]

The ability to ensure control over the presentation of his material in print was not the only matter that motivated Coke. Throughout all the prefaces to his Reports and other writings there was a recognition of the importance of making information available both for the education of students and for the “common good”. This did not mean that Coke readily endorsed all legal printing. He was critical of some material on offer and in particular some Abridgements.[26] He noted that these had profited the authors themselves:

“but as they are used have brought no small prejudice to others; for the advised and orderly reading over of the Bookes at large in such maner as elsewhere I have pointed out, I absolutely determine to be the right way to enduring and perfect knowledge; and to use abridgements as tables and to trust only to the Books at large. …. and certain it is that the tumulatuarie reading of Abridgements, doth cause a confused judgment and a broken and troubled kind of deliverie or utterance.  But to reduce the said penal Lawes into some Methode or order is an honourable, profitable and commendable work for the whole Commonwealth.”[27]

Coke’s value upon education and learning appeared in the second volume of the Reports:

There is no jewell in the world comparable to learning, No learning so excellent both for Prince and Subject as knowledge of Lawes; and no knowledge of any Lawes (I speake of humaine) so necessarie for all estates, and for all causes, concerning goodes, landes, or lyfe, as the common Lawes of England.[28]

It is not surprising that he saw his Reports and published works as fulfilling an educative function and frequently addressed students of the law in his writings, emphasising the value of accurate source material and frequently giving advice on how to use it and apply it in the course of study.

“In troth, reading, hearing, conference, meditation, & recordation, are necessary I confesse to the knowledge of the common Law, because it consisteth upon so many, & almost infinite particulars: but an orderly observation in writing is most requisite of them all; for reading without hearing is darke and irksome, & hearing without reading is slipperie and uncertaine, neither of them truly yeeld seasonable fruit without conference, nor both of them with conference, without meditation & recordation, nor all of them together without due and orderly observation.”[29]

In his discussion of the style of his case reporting Coke gave further advice to students.

“I have added the pleadings at large: as well for the warrant, and better understanding of the cases and matters in Law, as for the better instruction of the studious Reader in good pleading, which Mast. Littleton faith is one of the most honorable, lawdable, and profitable things in the Law: I wish the continuances had bene omitted, and yet some of them also are not without their fruite. To the Reader mine advise is, that in reading of these or any new Reports, hee neglect not in any case the reading of the old Bookes of yeares reported in former ages, for assuredly out of the old fields must spring and grow the new corne….”[30]

Coke continued his educational advice in the Third Volume[31] setting out a reading list starting with the early common law texts[32] and moving on to more recent publications[33] and concluded that the “most useful and those of the greatest authoritie and excellencie” are the Register, Littleton, Fitzherbert and Stanford and reference is made on other occasions to some or all of these texts, especially in the tenth volume of the Reports.[34]

Coke tendered more advice about the path of learning that a student might undertake. In the Preface to the Third Volume[35] he discussed in some detail what he referred to the degrees of the Law and traced the path that might be followed by a student through the Inns of Chancery to the Inns of Court, and the progress that a typical student might undertake. Given that his primary audience was either those studying or already qualified in the law, and given that the Reports themselves were written in the “language of the law” it seems curious that he considered it necessary to embark upon this discussion. A possible conclusion is that by the time he reached the third volume, Coke was writing for a wider audience and possibly for posterity, thus taking the opportunity to expound upon the common lawyer’s course of education and immersion in what was a difficult field to master.

The wider audience was contemplated in the Preface to the Fifth Volume when Coke stated, after denouncing ignorance and holding that truth and an end of ignorance was an end of confusion, and that the laws of England were the birthright of its subjects

“My only end and desire is, that such as are desirous to see & know (as who will not desire to see & know his owne may be instructed: such as have bene taught amisse (every man beleeving as he hath bene taught) may see & satisfie himselfe with the truth, & such as know and hold the truth (by having so ready and easie a way to the fountaine themselves) may be comforted and confirmed.[36]

As part of his educative function, Coke used the prefaces to his Reports to discuss and develop certain matters of law, and especially wrote about the history of the common law and of common law principles. The Sixth Volume of the Reports followed up on his assertions of the excellence of the common law that he made in the Second Volume. In the Sixth Volume he refers again to the educational function that he sees performed by the Reports

“The reporting of particular cases or examples is the most perspicuous course of teaching, the right rule and reason of the Law: for so did Almightie God himselfe, when hee delivered by Moases his Judiciall Lawes……

And the Glossographers, to illustrate the rule of the Civile Law, doe often reduce the rule into a Case, for the more lively expressing and true application of the same. In reading these and other of my Reports, I desire the Reader that hee would not reade (and as it were swallow) too much at once; for greedie appetites are not of the best digestion: the whole is to be attained to by parts, and Nature (which is the best guide) maketh no leape….

A cursarie and tumultuarie reading doth ever make a confused memorie, a troubled utterance and an incertaine judgement.”[37]

It was not only in the Reports that Coke gave advice to students. In the First Institute (Coke on Littleton) he states:

“My advice to the Student is, that before he reade any part of our Commentaries vpon any Section, that first he reade againe and againe our author himselfe in that section, and doe his best endeavours first of himselfe, and then by conference with others (which is the life of study) to understand it, and then to reade our Commentary thereupon and no more at any one time, than he is able with delight to beare away, and after to meditate thereon, which is the life of reading.  But of this argument we have for the better direction of our student and his studies spoken in our epistle to our First Booke of Reports.”[38]

The educational importance of his work was continued in the  Book of Entries in which it was stated on the title page  that it was “collected and published for the common good and benefit of all the studious and learned professors of the Laws of England”[39] and is therefore obviously designed for a student or professional audience. Precedents of pleadings are gathered together for education and presupposes reading for study, as well as use for practical application.

Sir Edward was well aware of the power of print and he was not backward in promoting his own works. His reference back to his own “first Booke of Reports” provides an example. But apart from the difficulty of an author citing another of his own works as an authority, the significant sub-text to Coke’s comment is that there is no hesitation to refer to printed works. This theme occurs regularly in Coke’s work. So accepted has print become by the time of the printing of Coke on Littleton that in the preface Sir Edward set out the printing history of Littleton’s Tenures as well as a number of other leading texts in print.

Indeed the use of printed work was becoming such a norm that Sir Edward gave advice on how to use printed texts. He recognised some of the problems accompanying printed texts, primarily surrounding issues of credit, but at the same time was not hesitant in recommending certain texts, all of which were in print at the time.

“In reading of the cases in the Bookes at large, which sometimes are obscure and misprinted, if the Reader after the diligent reading of the case, shall observe how the case is abridged in those two great Abridgements of Justice Fitzherbert and Sir Robert Brooke, it will both illustrate the case and delight the Reader; And yet neither that of Statham nor that of the Booke of Assises is to be rejected: And for pleading the great booke of Entries is of singular use and utility. To the former Reports you may add the exquisite and elaborate Commentaries at large of Master Plowden, a grave man and singularly well learned, and the summarie and fruitful observations of that famous and most reverend Judge and sage of the Law Sir Iames Dyer, Knight, late chiefe Justice of the Court of Common pleas, and mine own simple labors: Then have you 15 Bookes or Treatises, and as many volumes of the Reports, besides the Abridgements of the common Lawes; For I speake not of the Statutes and Actes of parliament, whereof there bee divers great volumes. And for that it is hard for a man to report any part of branch of any Art or science justly and truly, which he professeth not, and impossible to make a just and true relation of any thing that hee understands not: I pray the beware of Chronicle Law reported in our Annales, for that will undoubtedly lead thee to error.[40]

By the time that the Fourth Volume of the Reports was printed (1604) Coke had shed his reluctance to see his work in print. The themes of education and the benefit of the commonwealth – themes that had been constant justifications for putting work into print and implicitly recognising the properties of print – were made clear and the importance of knowledge of the law – such knowledge being acquired by publication of the law was emphasised:

“To make one plaine and perspicuous law divided into articles, so as every subject may know what acts be in force, what repealed, either by particular or generall words in part or the whole and what branches & parts abridged, what enlarged, what expounded; so as each man may clearley know what and how much is of them in force, and how to obey them, it were a necessary work and worthy of singuler commendation; which His Maiesty out of his great wisdome and care to the common wealth hath commanded to be done.”[41]

Coke considered for the good of the commonwealth he owed a duty not to keep his reports private but was encouraged to publish and communicate them to all.  Thus, the importance of dissemination by way of publication using the print medium was for the good of the common wealth and was considered a high calling. The public good as a reason for publication was further discussed in the Sixth Volume of the Reports.

“I have (good Reader) brought this sixt worke to a conclusion, and published it for thy private instruction, for the publique good and quiet of many, and for preventing of daunger the daughter of Errour.”[42]

And the importance of the common law as providing an end to disputes which was for the common good was stated in the Eighth Volume:

“the antient & excellent institution of the Comon Law might be recontinued for the good of the commo’wealth (for it is convenient for the commonwealth that there be an end to controversies).”[43]

By the Eighth Volume Coke had refined what he considered his duty to publish Reports

“So ought every man according to his power, place & capacity  to bring somewhat , not onely to the profit and adorning of our deere Countrey (our great Eagles nest) but therein also, as much as such  mean instruments can to expres their inward intention & desire, to honor the peaceable days of his Maiesties happy and blessed government to al posterity. And for that I have bin called to this place of Judicature by his Maiesties exceeding grace & favor, I hold it my duty, having  observed many things concerning  my profession, to publish amongst other certaine Cases that have bin adjudged and resolved since his Maiesties raigne in his highest Courts of ordinary Iustice in this calme and flourishing springtime of his Maiesties Justice, amounting with those of my former edition in al to 84”.[44]

and the importance of publication was by the Tenth Volume becoming associated with some of the higher elements of truth and Justice, for in discussing the nature of the cases appearing in the work he had made them available to with the purpose that “shee which is the foundation of Justice should not lie hiddeen and unknowne.[45]

The concluding words of the Eleventh Volume, the last to be published in his lifetime, aptly summarised Coke’s purposes in printing his Reports.

“The end of this edition is, that God may be gloried, His Maiestie honoured, the common good encreased, the Learned confirmed, and the Student instructed.”[46]

The end of Coke’s judicial career came when James ordered that Coke was not to ride on the summer assize circuit. Instead he was to censor his own law reports, ‘wherein (as his majesty is informed) there be many exorbitant and extravagant opinions set down and published for positive and good law’.[47]  Coke superficially complied and addressed one law suit.  That was all he was prepared to do. On 2 October 1616, after perusing his Reports, Coke reported that he had found only five trifling errors. This was defiance, and James responded in kind. He demanded that his obstinate chief justice explain five of his most dangerous conceits. When Coke refused this final opportunity to recant  the king acted. On 16 November 1616 Coke was removed from the bench. It was said, John Chamberlain wrote, that ‘four p’s’ had overthrown the chief justice: ‘that is, pride, prohibitions, praemunire, and prerogative’[48]

But that was not the end of Edward Coke. He commenced a career as a Member of Parliament. In 1628 he argued  ‘I know that prerogative is part of the law but sovereign power is no parliamentary word: in my opinion, it weakens Magna Carta … Magna Carta is such a fellow that he will have no sovereign’.[49]

When Charles I warned the Commons that he would veto any bill that did more than reconfirm Magna Carta, Coke saw a rare opportunity; the king’s demand gave him the chance to make new law out of the greatest medieval statute. The result was the Petition of Right, something more than a list of grievances, if less than an actual bill of rights. It was Coke who suggested the petition.

But the King had a long memory and in April 1632 the king’s men raided his home at Stoke and Coke wept as his papers were removed. In 1633 Charles sealed Coke’s rooms at the Inner Temple. Finally, in the last days of August 1634, while Coke lay dying, the king’s men ransacked both Coke’s study at Stoke and his files at the Inner Temple. Roger Coke, the judge’s grandson, wrote that they seized more than fifty manuscripts and other papers. Clearly his writings and the use of his papers after his death was seen as a potential threat. Both the requirements in 1616 that he censor his writings and the raids on his papers and his chambers indicate that Coke the Judge and lawyer had stepped over the mark among other things in using print to spread his views about the law and the fear of further dissemination of opinions that may have been contrary to Royal police by means of the new communications technology.

Certainly Coke’s unwillingness to change his Reports demonstrated the risks he encountered in using the new technology. It is doubtful that he would have attracted the same attention had he circulated manuscripts among his colleagues and stayed away from print.

[1] The other most notable one  of the first part of the sixteenth century was Christopher St German, the author of Doctor and Student.

[2] Law-French was the language of lawyers and Latin the language of an educated elite. Thus printing in Latin would extend the audience but in a very limited way.

[3] John Rastell, “Prologus Johannis Rastell”, in Exposiciones terminorum legum anglorum. Et natura breuium (Johannes Rastell, London, 1525) STC 20702

[4] Wood v Dallison cited in I. S. Williams “He credited more the printed booke” (2010) 28 LHR 38 at p. 67 – 68 fn 39.

[5] N.. Doe Fundamental Authority in Late Medieval English Law (Cambridge University Press, Cambridge 1990) p.38.

[6] Ibid. p. 39 Doe refers to the author of Mirror of Justices, a text of questionable provenance which emphasised the importance of the textualisation and publication of “the laws and usages of the realm”. For a discussion of textualisation and the law see Peter Tiersma Parchment Paper Pixels: Law and the Technologies of Communication (University of Chicago Press, Chicago, 2010) p. 28, 31 – 32.

[7] John Rastell, above n. 3.

[8] Other law printing pioneers were Wynkyn de Worde, William de Machlinia, William Lettou, Richard Pynson and Robert Redman. See above p. 102-103  for discussion of their role.

[9] Sonny Bono 1967.

[10] Edmund Plowden Les comentaries, ou les reportes de Edmunde Plowden vn apprentice de le comen ley (Richard Tottell, London, 1571) Preface

STC 20040

[11] Ibid.

[12]Summed up in the term “notre erudition” – see J.H. Baker Laws Two Bodies – Some Evidential Problems in English Legal History (Oxford University Press, Oxford 2001) esp. Ch 3.

[13]  Possibly an aspect of “notre erudition” especially as far as case notes or reports were concerned. The oeuvre of printed treatises suggests that they were intended for a wider audience (or more extensive dissemination). It is perhaps relevant to note that the cross referencing to other legal works was to those that were in print rather than manuscript sources. The cross referencing to printed material pointed the reader in that direction. Any relevant manuscript material would have come to the attention of the reader from another source or would be derived from the coterie or “notre erudition” if indeed the reader was privy to it.

[14] Samuel Harvey Reynolds, (ed) The Table Talk of John Selden (Oxford University Press, Oxford, 1892), p.

135. See also Nicola Shulman Graven with Diamonds: The Many Lives of Thomas Wyatt (Short Books, London, 2011); J.W. Saunders “The Stigma of Print –  A Note on the Social Bases of Tudor Poetry” (1951) Essays in Criticism 139. For further discussion see The Law Emprynted and Englysshed pge 153 et seq.

[15] Abridgment des touts les cases reportez alarge per Monsieur Plowden (Jane Yetswiert, London, 1597) STC 20037; The 1607 printing was by Adam Islip for the Stationers – STC 20038. Fabian Hicks An exact abridgment in English, of The commentaries, or reports of the learned and famous lawyer, Edmond Plowden ((Printed by R. White, and T. Roycroft, for Matthew Walbanke, and Henry Twyford, London, 1650) Wing (2nd ed.) / P2609.

[16] 2 Cokes Reports p.viii (preface).

[17] The association of a report with a named reporter had been developing in importance in manuscript law reports. See Baker Introduction to English Legal History (3rd ed) (Butterworths, London, 1990)  p. 180.

[18]And did although the behaviours were more related to disseminating something that was in short supply rather than recommending something that was readily available.

[19] 4 Coke Reports Preface

[20] 1 Cokes Reports.

[21] Ibid.  “The Preface to the Reader.”  Folio C2 et seq A similar comment is made in the Preface to the Third Volume – “Your extraordinarie allowance of my last Reports, being freshly accompanied with new desires, have overcome me to publish these few excellent Judgements and Resolutions of the reverend Judges and sages of the Law.” “To the Reader”  Folio C2 pages unnumbered.

[22] 7 Cokes Reports The Preface  Folio aiii pages unnumbered.

[23] 1 Cokes Reports “The Preface to the Reader” Folio C2 pages unnumbered.

[24] It is not clear on the face of the Reports where Coke’s interpolations occur.

[25] Cokes worst fears about “true and certain” reports had come to pass. In the Preface to the Seventh Volume he is highly critical of a pamphlet reporting a speech given at the Norwich Assizes in August 1606. He is critical particularly of the lack of context and the errors of law that it contained. His comment that he would not have let any of his works pass under the name ascribed to the pamphlet, and if he had thought it worthy would have published it himself. The subtext to the complaint is that there was a passing off, much to Coke’s anger and embarrassment.

[26] Coke places great store on reading as a method of study. Although he has also referred to discussion and contemplation as essential study skills, the focus more and more shifts to the use of books. Coke was educated in the Elizabethan Inns of Court where the oral-memorial system or moots, exercises and readings was still continuing undiminished. By the seventeenth century it may be fair to conclude that Coke saw that there was a shift in legal education towards a more individually centered form of study which could be best achieved by considering and reading the “right books”.

[27] 4 Cokes Reports Folio B3 pages unnumbered.

[28] 2 Cokes Reports  “To the Learned Reader”  ¶3 pages  unnumbered.

[29] 1 Cokes Reports “Preface to the Reader” page unnumbered.

[30] Ibid.

[31] 3 Cokes Reports.

[32]  Glanvil, Bracton, Britton, Fleta, Ingham and Nova Narrationes

[33] The Old Tenures, the Old Natura Brevium, Littleton, Doctor and Student, Perkins, Fitzherbert’s Natura Brevium and Stanford’s Plees de la Coron.

[34] 10 Cokes Reports.

[35]  3 Cokes Reports.

[36]  5 Cokes Reports “To the Reader” Folio Aiiii pages unnumbered.

[37]  6 Cokes Reports “To the Reader” Folio ¶iii pages unnumbered.

[38] Coke on Littleton “The Preface” Folio C3 pages unnumbered.

[39] Edward Coke A Booke of Entries (Printed for the Societie of Stationers, London, 1614) The “common good” in this context was limited to the audience – the book was for the benefit of all of them. Beyond this social implication this cannot be said to extend to the “common weale” either in the wider social or political senses. The title page may well contain some printer’s hyperbole. Note that the term “ law student” had a special meaning in the early modern period which was wider than that contemplated by the undergraduate student of today..

[40] 3 Cokes Reports “To the Reader” Folio C2 page unnumbered. The Book of Entries to which he refers may well have been his own although it was not printed until 1614. It is in the Preface to the Third Volume of the Reports that Coke repeats the theory advanced by Plowden that authorship of the Year Books rested with four “reporters” appointed by the Crown.

[41] 4 Cokes Reports “To the Reader” Folio B3 pages unnumbered. In this passage Coke is referring to statutory law which had increased in volume since the reign of Henry VIII. It emphasises the general theme of the preface which is about making the law available.

[42] 6 Cokes Reports “To the Reader” Folio ¶iii pages unnumbered.

[43] 8 Cokes Reports “To the Reader” Folio Aii page unnumbered.

[44] Ibid.

[45] 10 Cokes Reports “To the Reader”  pages unnumbered.

[46] 11 Cokes Reports “To the Reader”  pages unnumbered. The Twelfth Volume and Thirteenth volumes were printed posthumously in 1656.

[47] The letters of John Chamberlain, ed. N. E. McClure, 2 vols. (1939) 2.14

[48] Ibid. 2.34

[49] C. Russell, Parliaments and English politics, 1621–1629 (1979) p. 352

The Hobbit – Some Thoughts on the 75th Anniversary

On 21 September 1937, J.R.R. Tolkien’s book “The Hobbit” was published by George Allen and Unwin. It has remained in print ever since, and in December the first film of a “Hobbit” trilogy, directed by Peter Jackson will be released.

Is the publication of the Hobbit an historical anniversary? Richard Cavendish, writing in History Today, thinks so. He observes:

“When The Hobbit, or There and Back Again was published by George Allen & Unwin in

The Hobbit Dust Jacket – First Edition

London, with a dust jacket based on the author’s own design, it received glowing reviews. The Times admired ‘a happy fusion of the scholar’s with the poet’s grasp of mythology’ and the book appealed to adults as well as children. It sold very well and has remained in print ever since. The publishers naturally wanted more and The Hobbit proved to be the forerunner of The Lord of the Rings, Tolkien’s epic story of a titanic struggle between good and evil, published in three volumes in 1954-55, which has sold more than 150 million copies and is an acknowledged classic.”

Publishing The Hobbit

How “The Hobbit” came to be  published is fairly well known. Tolkien had shown the completed typescript of the book to one of his former pupils, Elaine Griffiths, who became a family friend. On Tolkien’s recommendation, Griffiths was engaged by George Allen & Unwin to revise a translation of Beowulf. One day, in 1936, Susan Dagnall, a member of Allen & Unwin’s staff came to Oxford to talk with Griffiths about her project. From her she learned of the existence of an unfinished children’s story written by Professor Tolkien. On Griffiths suggestion, Dagnall visited Tolkien at his home in Northmoor Rd., Oxford and asked to borrow the manuscript. She was given it and took it back to London. She read it and decided it was worthy of consideration, although she stopped just after the death of Smaug. However, she returned it to Tolkien and suggested that he finish the work so that it might be considered for publication the following year.

The manuscript, entitled The Hobbit or There and Back Again was completed in October 1936 and

Ruskin House – former home of George Allen & Unwin – Museum St London

sent to Allen & Unwin’s offices in Museum St (the sign is still there although the publishing house has been long gone). But was it completed before this?

The firm’s chairman, Sir Stanley Unwin, believed that the best judge of children’s books were children themselves and handed The Hobbit to his 10 year old son Rayner (who in later years became Tolkien’s publishing mentor and friend). Rayner wrote the following report:

“Bilbo Baggins was a hobbit who lived in his hobbit-hole and never went for adventures, at last Gandalf the wizard and his dwarves perswaded him to go. He had a very exiting time fighting goblins and wargs. At last they got to the lonely mountain; Smaug the dragon who gawreds it is killed and after a terrific battle with the goblins he returned home – rich! This book, with the help of maps, does not need any illustrations it is good and should appeal to all children between the ages of 5 and 9”[1]

Rayner was paid a shilling for the report and the book was accepted for publication. However, it was decided, contrary to Rayner’s recommendation, that the book did in fact require illustrations and Tolkien submitted some of his own drawings and eight of his blacvk and white illustrations were accepted. He had also prepared maps which were used as end-papers, meaning that Tolkien’s plan for “invisible lettering” on Thror’s map could not be realised.

The page proofs were sent to Tolkien in February 1937 and characteristic of his writing became immediately apparent – revisions! He decided that there should be substantial changes for he had let the manuscript go without checking it with his usual thoroughness and he was unhappy about a number of passages in the story. He found inconsistencies in the topography, details which only the most painstaking reader would notice.[2] He was uncomfortable with some passages where he considered the style to be patronising and in a few days had covered the proofs with many alterations.

The book was published on 21 September 1937. Tolkien was nervous about the Oxford reaction. He was holding a Leverhulme Research Fellowship and wondered how he would convince people that the book was not the fruits of research for 1936 – 7. He need not have worried. Oxford paid the book almost no attention.

But that was not the case elsewhere. The book received an accolade in the Times and his fellow Inkling and friend C.S. Lewis, reviewer for The Times Literary Supplement, was responsible for getting the notice in the senior publication. The first edition sold out by Christmas.[3] In the United States it was awarded the New York Herald Tribune prize for the best juvenile book of the season. Stanley Unwin wrote to Tolkien, advising that the public would want to hear more about hobbits. But that was not to be – until 29 July 1954 when The Fellowship of the Ring was published.

But when did the journey of writing The Hobbit begin? The evidence is often unclear and at times contradictory, as to the manner in which and the time at which the book was started.

When and How it Began

Tolkien himself was unable to remember the precise origins of the book. In one account he said: ‘I am not sure but I think the Unexpected Party (the first chapter) was hastily written before 1935 but certainly after 1930 when I moved to 20 Northmoor Road.’ Elsewhere he wrote: ‘On a blank leaf I scrawled “In a hole in the ground there lived a hobbit”. I did not and do not know why. I did nothing about it, for a long time, and for some years I got no further than the production of Thror’s Map. But it became The Hobbit in the early nineteen-thirties.’[4]

Other evidence for the commencement of the book confirms at least the basic circumstances:

 “Two … English boys … asked Mr. Tolkien how he happened to write The Hobbit. He replied that he was in the midst of correcting 286 examination papers one day when he suddenly turned over one of the papers and wrote: ‘At the edge of his hole stood the Hobbit.’ As he later tried to think just who and what this Hobbit was, his amazing story developed.”[5]

 “The actual beginning- though it’s not really the beginning, but the actual flashpoint I remember very clearly. I can still see the comer of my house in 20 Northmoor Road where it happened. I had an enormous pile of exam papers there. Marking school examinations in the summertime is very laborious and unfortunately also boring. And I remember picking up a paper and actually finding – I nearly gave an extra mark for it; an extra five marks, actually – there was one page of this particular paper that was left blank. Glorious! Nothing to read. So I scribbled on it, I can’t think why, In a hole in the ground there lived a hobbit.”[6]

 “It all began when I was reading exam papers to earn a bit of extra money. That was agony. One of the tragedies of the underpaid professor is that he has to do menial jobs. He is expected to maintain a certain position and to send his children to good schools. Well, one day I came to a blank page in an exam book and I scribbled on it. ‘In a hole in the ground there lived a hobbit’. I knew no more about the creatures <sic> than that, and it was years before his story grew. I don’t know where the word came from. You can’t catch your mind out. It might have been associated with Sinclair Lewis’s Babbitt. 2 Certainly not rabbit, as some people think. Babbitt has the same bourgeois smugness that hobbits do. His world is the same limited place.”[7]

What followed was a form of story development as Tolkien told the story to his children. This in itself has given rise to contradictory evidence about the dating of the commencement of the idea. Although Tolkien places it after the move to Northmoor Rd, family recollections place it earlier.

Michael Tolkien, the author’s second son stated in his unpublished memoirs that he:

“clearly recalled his father standing with his back to the fire in his study at 22 Northmoor Road and saying that he was going to start telling his sons ‘a long story about a small being with furry feet, and asked us what he should be called – then, answering himself, said “I think we’ll call him a ‘Hobbit’.”‘ (quoted in Christopher Tolkien’s Foreword, p. vi). Father John Tolkien, the eldest son (1917-2003), was equally definite that the story began before the move from 22 to number 20 Northmoor Road: ‘The first beginnings of the Hobbit were at 22 Northmoor Road; in my father’s study, the room to the left of the front door as one looks at the house. I remember clearly the wood block floor, mats etc …. [T]here were no family readings for us all in 20 Northmoor Road, where we moved early in 1930. I was 12+ & I think could read for myself! The room with its many bookshelves was not conducive to that son of thing. As far as I remember the readings were always in the study … The Hobbit started with a couple or so chapters, to which if we were lucky a couple or more would be added at the next Christmas … I went to boarding school in September 1931 and so although very close to the family, all sorts of stories may have been told which I cannot date. ‘  Carpenter, writing in 1976, notes that Michael and John Tolkien ‘are not certain that what they were listening to at that time was necessarily a written story: they believe that it may well have been a number of impromptu tales which were later absorbed into The Hobbit proper’ (Carpenter, p. 177). In support of his claim for an earlier origin of the book, in his guest-of-honor speech to the Tolkien Society’s Annual Dinner in May 1977 Michael described the stories he and his brothers and sister had written in imitation of The Hobbit.  Michael recounts that these stories were populated by characters like Philpot Huggins, Ollum the giant frog, blokes (hobbits), smellers (wolves), the dwarves Roary, Borey, Gorey, Biffer, Trasher, Gasher, Beater, Bomber, Lammer, Throw-in (the chief dwarf), and young Blow-in and Go-in; Alben Bolger the troll, joshers, snargs, and the wizards Kimpu, Mandegar, and Scandalf the Beanpiper. Michael Tolkien dated his own contributions to this family apocrypha to 1929, when he was nine years old (Michael Tolkien, May 1977 speech; see also Christopher Tolkien, Foreword, p. vi), and thus argued that The Hobbit must have been begun by that date.

 While it is quite likely that many elements incorporated into The Hobbit came from family lore predating the book … and The Hobbit was undoubtedly influenced by the other stories Tolkien read his children in the ‘Winter Reads’ (which, despite Fr. John’s comment, continued to at least 1936 and probably beyond), Michael’s own account provides evidence that the stories he describes could not have preceded the actual writing of the book; too many of the names are parodies of forms that only emerged at a later stage, well into the composition of the manuscript. For example, Scandalf the wizard and Throw-in the head dwarf are clearly modelled on Gandalf and Thorin – but for the first two-thirds of the story the wizard was named Bladorthin and for more than half of it the chief dwarf is named Gandalf, not Thorin; these two characters seem not to have received their now-familiar names until around 1932. Furthermore, Tolkien himself is quite clear on the point that he made up the name ‘hobbit’ spontaneously at the moment of writing it down – that is, that the word itself emerged in a written text.

 The most specific proof may be found in a commentary Tolkien wrote on the text for the dust-jacket for The Hobbit and sent to his publisher accompanying a letter dated 31st August 1937, in which he remarked ‘My eldest boy was thirteen when he heard the serial. It did not appeal to the younger ones who had to grow up to it successively’ ( cf. Letters p. 21). Since John Tolkien was born on 16th November 1917, the events Tolkien is recalling here could not have taken place before the end of 1930; furthermore, Tolkien notes that ‘the younger ones’ (Michael was born 22nd October 1920 and Christopher 21st November 1924 and were thus respectively about nine and five in the summer of 1930, while Priscilla was still an infant, having been born in 1929) showed little interest at the time. Michael’s account not only contains inconsistencies but directly contradicts both the evidence of the manuscript and the accounts set down by his father, both at the time of the book’s publication and many years later. Given these facts, we should feel fully justified in accepting the word of the author recorded closer to the event over the childhood memories of a member of the original audience set down some 45 to 50 years after the fact.”[8]

 Thus we can safely say that composition commenced no earlier than summer of 1930 and there is other evidence to support this in the form of letters and memoranda set down by Stanley Unwin, C.S. Lewis, Christopher Tolkien and Tolkien himself. Lewis wrote to Arthur Greeves as follows:

 “Since term began I have had a delightful time reading a children’s story which Tolkien has just written. I have told of him before: the one man absolutely fitted, if fate had allowed, to be a third in our friendship in the old days, for he also grew up on W. Morris and George Macdonald. Reading his fairy tale has been uncanny – it is so exactly like what we wd. both have longed to write (or read) in 1916: so that one feels he is not making it up but merely describing the same world into which all three of us have the entry. Whether it is really good (I think it is until the end) is of course another question: still more, whether it will succeed with modern children.”[9]

 It may therefore be concluded that the manuscript was probably finished between the end of 1932 and the beginning og 1933 and that it was given to Lewis for comment. It is clear that Lewis had a complete story, for he makes reference to the final chapters.

The “Father Christmas Letters” for 1932 and 1933 incorporate aspects of “The Hobbit” world with the introduction of goblins and details such as characters becoming lost in goblin-caves, being rescued by an ancient and magical bear, and finding themselves besieged by hordes of goblins

Christopher Tolkien made reference to “The Hobbit” in one of his letter to Father Christmas where he states:

“He {JRRT] wrote it ages ago, and read it to John, Michael, and me in our winter ‘reads’ after tea in the evening; but the ending chapters were rather roughly done, and not typed out at all; he finished it about a year ago.”[10]

 The problem with inconsistencies arises mainly as a result of later recollections. Rateliff is critical of Carpenter’s conclusions about the dating of “The Hobbit” as well as its state as completed or uncompleted. Rateliff, after a very careful analysis of the evidence, concludes as follows:

“The external evidence of the date of the move and the weight of the contemporary documentary evidence (especially Lewis’s letter to Arthur Greeves and the 1932 Father Christmas letter) between them establish a consistent body of evidence which agrees with all the facts of Tolkien’s other recollections. Accordingly, we may state with some confidence that the story was indeed begun in the summer of 1930 and completed in January 1933.”[11]

 This analysis is essentially confirmed by Scull and Hammond.[12]

The Bigger Picture

What readers of The Hobbit did not appreciate was that there was a deeper “back story” to the Hobbit and the world in which it was set. Tolkien’s publishers were unaware of it, when Stanley Unwin requested more hobbit stories, although Lewis and The Inklings were aware of Tolkien’s development of the Mythology for England. In his excellent edition of the manuscript of The Hobbit John Rateliff presents us not only with the way in which the story was created and developed through changes, recasting and emendations but he also places the story into the Middle-earth context. For example, one of the versions, referred to as the Bladorthin typescript, makes reference to the mines of Moria drawing us into the wandering of the dwarves from the end of the First Age when the cities of Nogord and Belegost in the Blue Mountains were ruined at the breaking of Thangorodrim. Belegost and Nogrod are indicated “off-map” in a drawing of a map completed by Tolkien in the mid to late 1920’s.[13]

The origins of the Necromancer – Sauron in The Lord of the Rings – goes back to the end of The Book of Lost Tales period where he is known as Tu, a pupil of Melko, who escaped from Valinor after the destruction of the Two Trees and set up a wizard kingship in the middle lands. Yet although Tu learned much black magic from Melkop he was not evil. A second character appears known as Fukil, Fankil or Fangli who was a servant of Melko and who corrupted the newly awakened humans. Neither of these characters appear after Lost Tales but a synthesised character named Thu – also known as Gorthu or Sauron – appears in The Lay of Leithian –  an  continues to play a major part in the mythology thereafter.

This information leads us to answer the suggestion that Peter Jackson is squeezing the 255 pages of The Hobbit until the pips squeak by making a movie trilogy of the book. There clearly is a back story – not only in the Appendices to The Lord of the Rings but also in Tolkien’s deeper mythology. It seems to me that The Hobbit may be a little more than a cinematic adaptation of Tolkien’s book, but a tale with a deeper background hinted at in the manuscripts but which may now be made a little clearer.

[1] The text of the report is taken (complete with spelling errors) from Humphrey Carpenter J.R.R. Tolkien: A Biography (George Allen & Unwin, London, 1977)  180 – 181

[2] Although he may not have realised it he was anticipating a large and critical fan audience that developed especially after the publication of The Lord of the Rings.

[3] The value of the first edition, first impression with a slip case is in the vicinity of $11,000

[4] Carpenter above n. 1 p. 177. Tolkien was marking examination papers and the lines were written on a blank page od a script. The source for Tolkien’s comment is in a letter to W.H. Auden – see Humphrey Carpenter(ed) The Letters of J.R.R. Tolkien (George Allen & Unwin, London 1981) p.215

[5] Ruth Harshaw, ‘When Carnival of Books Went to Europe’, ALA Bulletin, February 1957, p. 120 in John D. Rateliff The History of the Hobbit: Part One – Mr. Baggins (Harper Collins London 2007) p. xii

[6] Tolkien in Oxford, BBC Television, 1968. Ibid. Rateliff

[7] The Man Who Understands Hobbits’, Charlotte and Denis Plimmer, early 1967; Daily Telegraph Magazine, 22nd March 1968, pages 31-32. Ibid. Rateliff  p.xiii

[8] Ibid Rateliff p. xiv – xv (footnotes omitted)

[9] Letter of 4th February 1933 from C. S. Lewis to Arthur Greeves; They Stand Together: The Letters of C. S. Lewis to Arthur Greeves,ed. Walter Hooper [1979], p. 449 – see Rateliff ibid. p.xv

[10] Ibid Rateliff p. xvii

[11] Ibid. p. xx

[12] Christina Scull and Wayne Hammond The J.R.R. Tolkien Companion and Guide: The Readers Guide (Harper Collins, London 2006) under the entry “The Hobbit” p. 384 et seq.

[13] See Christopher Tolkien (ed) The Shaping of Middle-earth (George Allen & Unwin, London 1986) plate between pp 220 – 221

The Googling Juror: The Fate of the Jury Trial in the Digital Paradigm

This paper considers the challenges posed by the information communication technologies of the Digital Paradigm to existing concepts of the fair trial by an impartial jury. It will argue that it is necessary to recognise the existence of the new technologies and that they will be used by jurors. It will suggest steps that may be taken and solutions that may be adopted to address such activity which maintain the integrity of the criminal jury trial and its continued place, unchanged, within the legal spectrum.

 The paper addresses the nature of the problem and the issues that arise from the wide availability of information on the Internet and will address two major ways in which information use may potentially cause difficulties for the juror. These may be described as “information in” – juror research which may result in information coming into the jury room, and which may be disclosed or made available to other jurors – and “information out” – communications emanating from sitting jurors about the trial, the state of deliberations and of seeking external advice.

The paper examines some possible reasons why it is that jurors wish to ignore judicial instruction and carry out their own researches. This will be viewed in light of the effect that new technologies may have on our wider expectation of information availability and the way in which those technologies enable behaviours.

The paper refers to recent research which may challenge the assumption that juror research may automatically result in a mistrial or is prejudicial to the trial process and offers some possible solutions to the problem. One is to consider juror education that goes beyond a judicial prohibition on “out-of-court” research. The other is to consider a nuanced and graduated response that may be applied when juror misconduct comes to light. The paper concludes that while so challenged, the jury system can survive the encounter with new information technologies.

A part of this paper – Why Do Jurors Go On-Line – was published as a stand-alone piece here. The paper was presented to the International Criminal Law Congress in Queenstown, New Zealand on Thursday 13 September 2012.

In essence the paper argues that changing information expectations on the part of “digital native” jurors are having an impact upon the jury trial – which uses an archaic oral means of communication information. This creates a tension with the “information now” non-linear means of information acquisition that digital technologies allow. The suggestion is that there are a number of means of addressing the problem and adapting trial processes to accommodate the information expectations of jurors. In addition, it suggests a nuanced approach to dealing with juror misconduct based on an analysis of information flows and possible impact upon the outcome of the trial.