Professor J.A. Jolowicz
By Lesley Dingle and Daniel Bates
Emeritus Professor John Anthony Jolowicz (1926-2012)
- 1926: Born 11 April
- 1940-44: Oundle School
- 1944-48: HM Forces, Royal Army Service Corps
- 1948-50: Cambridge Law Degree
- 1950: First Class Hons Law Tripos
- 1952: Fellow, Trinity College
- 1952: Called to Bar Inner Temple & Gray’s Inn
- 1955: Assistant Lecturer in Law, Cambridge
- 1957-58: Lectured in Chicago
- 1957: Married Poppy Stanley
- 1959: Lecturer in Law Cambridge
- 1962-80: Editor, Journal Society of Public Teachers of Law
- 1972-76: Reader, Common & Comparative Law
- 1976-93: Professor of Comparative Law
- 1976: Associate Professor University of Paris
- 1978: Bencher, Gray’s Inn
- 1982-84: Faculty Chairman
- 1983: Lionel Cohen Lecturer, Hebrew University
- 1985: Hon Dr, National Autonomous University of Mexico
- 1986-87: President, Society of Public Teachers of Law
- 1990: QC
- 1993: Retired
- 1994: Vice-President, International Academy of Comparative Law
- 2000: Hon LLD Buckingham
- 2002: French Légion d’ honneur
"The Cambridge Way: Conversations with Emeritus Professor John Anthony "Tony" Jolowicz for the Squire Law Library Eminent Scholars Archive" (2011) 11 (4) Legal Information Management 251 - 259
Professor Tony Jolowicz has been associated with Cambridge University and Trinity College for over sixty years, while his memory of various legal scholars that he met as a boy through his father’s academic career at University College London and Oxford University extends to the pre-War era. His reminiscences are thus a further valuable contribution to the Cambridge Law Faculty Eminent Scholars Archive, where he joins the select band of academics whose recollections capture, inter alia, the turbulent years while the university and country recovered from a major war.
John Anthony “Tony” Jolowicz was born at the family home, 9 Ferncroft Avenue Hampstead on 11th April, three weeks before the outbreak of the 1926 General Strike. His father, Herbert Felix Jolowicz was then a lecturer in law at University College London, and concurrently a Reader at All Souls College Oxford. The strike had been called by the Trade Union Congress in support of the coal miners (3rd - 13th May, and for the duration of the strike, Herbert Jolowicz, who had volunteered as a Special Constable, took time off from UCL to patrol the streets. The political crisis soon blew over and he returned to his duties at UCL and Oxford. Four years later he was made Professor of Roman Law at UCL, a post in which he officially remained until 1948, when he was elevated to the Regius Chair of Civil Law at Oxford. But a great deal happened on the domestic, national and global stages in those intervening years.
Professor Herbert Jolowicz had graduated with a first class degree in the Law Tripos in 1913 and then proceeded to Heidelberg and Freiburg to further his legal studies. He was almost trapped in Germany at the outbreak of the First World War when Britain declared war in August 1914, and having returned home immediately volunteered for service, being commissioned in 1915. He had a further narrow escape later that year when, after being posted to Gallipoli, it was only by good fortune that, having been transferred to intelligence work in Egypt because of his fluency in German, he avoided the virtual annihilation of his erstwhile Bedfordshire regiment in the massacres that unfolded a week later.
Two decades after surviving WWI, and while now Professor of Roman Law at UCL, he was called into action once more as WWII erupted. His language skills were yet again in demand, and this time he was involved in work related to the Enigma project, and later as an intelligence instructor.
By this time, Tony was at secondary school, having endured the disruption experienced by most of the country’s children that involved various evacuations out of London to avoid the bombing. He spent most of the war years at Oundle boys school in Northamptonshire, but had already, by virtue of his father’s pre-War academic activities at UCL, made the acquaintance of two legal scholars who were to play roles in his own later career, and who were also destined to become luminaries at Cambridge. Both have their own sections in the Eminent Scholars Archive: Emeritus Professor Sir Elihu Lauterpacht, and the late Professor Kurt Lipstein.
The Lauterpachts came into Tony’s life when Herbert Jolowicz met them following their recent arrival from central Europe. Hersch Lauterpacht1 and his wife took up residence in London in 1923, and, mentored by Professor (later Lord) McNair, Hersch was writing his PhD thesis and refining his English. Their son, Elihu was born in 1928 and Professor Jolowicz recounted that because he is two years older than Sir Eli, he remembers him as a very small child and that they grew up together in London. Although they have remained firm friends to this day, their paths did separate for several years as WWII loomed, because by then Professor Hersch Lauterpacht had moved to Cambridge (when he took the Whewell chair in 1937), and once the storms over Europe finally broke, Eli was evacuated to the USA, where he finished his schooling in rural New England.
Kurt Lipstein was of an earlier generation. He had fled Germany in 1934 to escape persecution and came to Cambridge, where the colourful Yorkshire-Italian Professor Harold Gutteridge2 took him under his wing. Kurt registered for his PhD and chose Roman Law. His examiner was Herbert Jolowicz at UCL, and when Kurt (who was then 27) came down to London for his viva in 1936 he visited the Jolowicz’s home. Professor Jolowicz recalled how, over a decade later, when he himself attended the first of the supervisions given him by the then Dr Lipstein at Cambridge during his own undergraduate years, Kurt Lipstein reminded him that he had last seen Tony as a ten year old boy leaning over the bannister at the Jolowicz house to catch a glimpse of his father’s visitor. This relationship was further strengthened by the fact that as a law student at the Friedrich Wilhelm University in Berlin (1927-31), Kurt had been taught by the famous Martin Wolff, who was then a highly-regarded Professor of Private International Law at Berlin. In 1906, Wolff had married Marguerite Jolowicz3, Herbert’s sister. In other words, Kurt’s teacher in Germany had been Tony’s uncle-in-law. (Martin Wolff and his wife emigrated to England in 1938 to escaped the unfolding catastrophe and took up residence in Oxford, where he was given facilities at All Souls4).
Both these friendships stood the test of time, and eventually all three scholars were reunited and became professors at Cambridge.
On leaving Oundle (1944), instead of progressing to university, Tony, like most of his generation, was diverted into the war effort. Initially sent on a course to Oxford (Brasenose College), he eventually found himself serving in Egypt, where his father had spent part of WWI. By the time he arrived the war had ended, but he spent the next three years as part of the force overseeing the Suez Canal Zone and in charge of the Royal Army Service Corps. He was only in a position to pursue a career in 1948.
Tony was still young (22), but, as with the men recently demobilised from the armed forces, experienced beyond his years. This was a theme emphasized by several previous interviewees (Bowett, Stein, Dias, and Lipstein), and all have described in their various ways how it affected life in the Faculty, or their personal circumstances in the immediate post-War years. In Tony’s case, he had several months between arriving home (in early 1948) and beginning university in the autumn, and he put these to good use. He had decided to study law, but his initial inclination had been to go into legal practice. One thing he had certainly resolved was that he did not want to study Roman Law at university. Nevertheless, he would need to pass the Roman Law Bar exam, and his father agreed to allow his son to sit in on his lectures in Roman Law at UCL5, and to coach him at home so that he could get this subject out of the way before going to Trinity College. Professor Jolowicz recalled that it was a “weird” experience listening to his father’s lectures, and it resulted in some awkward moments during the classes when fellow students, who did not know who he was, muttered, while others who did, shushed them to keep quiet. He was not officially a UCL student and, as he put it, he merely slipped in an out of his father’s lectures, while having no formal connections to the college.
It was also in this period that his father insisted that Tony take the opportunity of hearing the famous Harold Gutteridge6 speak. The occasion was a lecture at King’s College London on some aspect of the conflict of laws, and although it was his only experience and he remembers little about the talk itself, he is, in retrospect grateful to have witnessed a legend in action, one who had such an influence on the fortunes of Kurt Lipstein.
At the end of 1948, Tony went up to Trinity College, his father’s college, and he was frank about the circumstances of his acceptance into the College, and the “unmerited” good fortune that he enjoyed. As he described it, his father wrote to Dr John Burnaby, then Senior Tutor of the College7, and with whom he had been at Trinity before the First World War, asking to admit his son. Back came the reply “Dear Bertie, delighted of course.” And that was that. “My father had been here and .....I took it for granted that I was going to come to Trinity, because you could walk in, in those days more or less, if you had the right influence....shameful...” History repeated itself eight years later (1955) when, having decided that he wanted to be involved more directly in academic work, Professor Jack Hamson8 organised Tony an assistant lecturership for which he had not even applied!
Our conversation touched on one aspect of the teaching at Cambridge that previous Eminent Scholars had mentioned, and that had arisen from necessity because the war had distorted both the progression of undergraduates through the system, and the supply of suitably trained staff. This was the phenomenon known as the “weekenders”. Essentially, the dearth of teachers and the glut of new students recently discharged from the services precipitated a crisis in the faculty that was overcome by contracting legal practitioners (mainly based in London) to travel up to Cambridge to give supervisions on Friday evenings and/or Saturday mornings. Apparently, this policy was not without its critics in the Faculty who claimed that they were a “poor substitute for proper academics”. Professor Jolowicz disagreed because the weekenders brought with them the practicalities of law with which they had been wrestling in chambers earlier in the week and that these engaged students’ attention more readily than a more academic approach. Professor Jolowicz was well-placed to comment on the efficacy of these advantages, as he experienced the contribution of weekenders from both sides of the lectern, so to speak, and as a weekender who had operated at both Oxford and Cambridge.
This emphasis on the practical side of legal education is a factor that came through several times during our interviews, and, given that most students who qualify eventually move into legal practice rather than academia, the issue is as relevant today as it was sixty years ago. Eventually, the trait manifested itself in Tony’s ultimate choice of specialisations, Tort and Procedure, and ultimately a deep questioning of the raison d’etre for the administration of civil law in English courts (and elsewhere). I shall return to this topic later.
After two years Tony graduated with a first-class degree in 1950. By then he decided that he was finished with exams, and for the next five years lived a hectic existence that involved travel between London and either Oxford, or Cambridge, or both. The two fixed points in these constant perambulations were his legal chambers in London and the family home, which had recently transferred to Oxford9 when his father took the Regius Chair in Civil Law on the retirement of Professor Francis de Zulueta in late 194810. At this stage Tony was still intent on a career in legal practice and obtained a pupilage. He also fancied trying his hand at teaching, and obtained a position as a weekender at University College Oxford, where he fell under the direction of Norman Marsh, who was the Stowell Fellow in Civil Law. So for a year (1951), Tony commuted back and forth to Oxford every weekend and continued with his legal training.
Also at this time, Professor “Jack” Hamson, whom Professor Jolwicz described as being the person to whom “..I owe more than anyone else...for taking care of me...” persuaded him to enter for a Trinity Prize fellowship. To his great surprise, he was elected a Fellow, which opened the prospect of weekend teaching at Cambridge, and in 1952 he began a triangular commute in his car between London, Cambridge and , for a few hours at home, to Oxford. He was also called to the Bar in 1952, and for the next three years led a mixed academic/practitioners life.
Things came to a head in 1955 when he was offered an assistant lectureship by Hamson. This was a crucial point in his career, because by now he realised he had the ability to be an academic, and that he enjoyed teaching. He chose to relocate to Cambridge, but also to continue with his legal work, as best he could fit the two together. However, it soon became clear that this was not really a viable proposition because his conscience pulled in two opposing directions: “I was .....purporting to practice at the Bar, so I could not say to a solicitor, ‘No, I’m afraid I can’t go to court on Tuesday because I’ve got a lecture.’ ...[Equally] it wasn’t fair to undergraduates to say, ‘Oh no, I’m terribly sorry, I can’t lecture next week because I’ve got to be in court.’. He chose academia, and forwent the lucrative pay “except for ....occasionally [when] people asked me to do an opinion or something.”
I asked him if he wondered where his career would have taken him, had he taken the other path and he said he had often, even in later life. It was clear that the decision to abandon legal work as his main career had been a difficult decision, with the possibility of high office an ultimate goal, particularly since several of his later pupils entered the House of Lords (for example Gordon Slynn, Richard Scott and Robert Walker11). He did come back to some legal work after he retired (doing “advisory work”), and can tell his grandchildren that on two occasions he addressed the House of Lords during their legal deliberations12. Once Tony Jolowicz returned to Cambridge permanently in 1955 as an assistant lecturer after five years as a legal itinerant, his career followed what might be considered a conventional course: a lectureship followed in 1959, he was made Reader in Common and Comparative Law in1972, and in 1976 he was made Professor of Comparative Law, in which position he remained until he retired in 1993. Looking over these nearly four decades of endeavour, there are several strands to Professor Jolowicz’s career that stand out clearly: teaching, legal research and College life, and I shall try to illustrate the character of each with quotations and facts from our conversations.
Also, Professor Jolowicz is generous in acknowledging the debt he owes various colleagues for helping his career to mature, and in so doing provided some fascinating insights into past doyens of the Faculty. One I have already mentioned was Charles John “Jack” Hamson13 who was Professor of Comparative Law from 1953-73, and who was Tony’s mentor and colleague from his undergraduate days until after he had became a Reader: “...absolutely number one in my career, outside my family. [He had] more influence than anybody else. ” Hamson’s influence can be seen in several areas, including Professor Jolowicz’s publications, and I shall refer to this where appropriate.
Another was the enigmatic Clive Parry14, through whose intervention he was promoted in 1972: “When Parry was Chairman of the Faculty.... he said to me, ‘I want you to send me a curriculum vitae and you’re not to wonder why I want it’ and then I became a Reader.....I must have been put forward, by Parry. I never really understood how I was pulled out of the ruck. I suppose I had started to show some interest in Comparative Law and written one or two things and somebody must have thought, it would be a good idea to do this.”
Professor Jolowicz’s self-deprecation on this matter probably hid a further truth that academics such as Parry recognised, and this was his propensity for hard work, both in teaching and research. This was epitomised when we spoke about his involvement in the famous “Winfield and Jolowicz on Tort” text book between 1963 and 1971. Bearing in mind his heavy teaching load (to which I shall refer below), I asked him how he found the time to fit in his research: “I was young, I suppose. I don’t want to brag about it, I mean, when I was doing Winfield regularly, I was often up until 3 o’clock in the morning. I could in those days, work late at night.”
Teaching. In his undergraduate years, Professor Jolowicz had been deeply impressed by the manner in which people like Hamson meticulously read and constructively criticised students’ essay in the supervisions system that operated in the Cambridge Colleges - the Cambridge way as he referred to it. He was very conscious of the great advantages this bestowed on students, while at the same time recognising its very labour intensive format for teaching staff.
When he started his own full-time teaching at Trinity in 1955 this was the system to which he was attuned and believed to be most beneficial to his students. However, it was not without great personal sacrifice, which he readily made “...I didn’t do much research. Couldn’t do research in term-time at all.” The situation in which he found himself was that “....every week, three days a week....I would spend the time from going back to my room after lunch reading [and annotating] these essays. Get through them by 5 o’clock...and give them back at the beginning of the supervision [from] 5 to 8. We dined at 8 at Trinity. It was not perhaps my most favourite pass-time.”
Looking back, he reminisced that time has taken its toll, and with modern attitudes and a “publish or be damned” culture “The Cambridge way” as he knew it has now “... very largely gone. They write very few essays....the present generation of teachers at the faculty, my impression, is that they have more or less a quiet strike about reading essays..”
This technique of lecturing to a class, followed by supervisions, was in strong contrast to the “case” teaching format that Professor Jolowicz experienced (from the teacher’s side of the lectern) early in his career when he visited the University of Chicago in 1957 and ‘58. Here, he had to teach large classes and learnt from “people who know how to do it...”. The routine involved starting with a “lecturette” and then proceeding to some topics in “immense detail” while simultaneously leaving out other sections in order to get through the set textbook. For someone used to personal supervisions it was not very successful because there was no opportunity, outside a large class, for students to speak or express themselves on specific topics.
Cambridge has had its champions of the case method, and it was briefly tried here by both professors Glanville Williams15 and Bob Hepple16, but it failed because, as Professor Hepple conceded in an earlier interview with me, it could not be accommodated within the Cambridge supervisions culture. Professor Jolowicz came to the same conclusion, and stated “..I never actually approved of it.”
Professor Jolowicz’s commitment to teaching and his interests in what it is now pedagogy in the legal sphere extended beyond the Cambridge college system, and he was involved in various aspects of the work of the Society of Public Teachers of Law (SPTL). For nearly twenty years (1962-80) he was Editor of the Society’s Journal, having followed in his father’s footsteps “It was almost like a family business because my father was editor for donkey’s years and then he died and Harry Lawson17 did it for a bit and then I came in and I did it for a matter of eighteen years or something like that.” In 1986-7 he also was the Society’s President, and for many years was the Cambridge Law Faculty representative in the Society.
His involvement with the SPTL was not restricted to law teaching, and as I shall mention later, carried over into various other areas of interest, particularly what he saw as the shortcomings of civil procedural law and how it was, and to some extent still is, practised in England.
Legal research. Professor Jolowicz’s path through the scholarship of civil procedural law was a journey of three stages. Although he had to teach many topics in his early years, as is the wont of junior staff, his published output is concentrated into jurisprudence, tort, and civil procedure, while his more philosophical presentations draw on all three, and beyond. One interesting aspect of his published output is how much lies in chapters written to honour his many and varied colleagues in civil law jurisdictions in festschriften and mélanges. He was a scholar who mixed widely and easily with non-Common Law friends and colleagues and it is a sign of the high regard in which he is held in civilian circles that he has been invited to participate. Nevertheless, in typically forthright fashion, he claimed that “I write a lot of these festschriften, because it’s an opportunity to get something published”.
Shortly before he took up his assistant lectureship at Cambridge in 1955, his father had prematurely passed away (1954). Before his demise, Tony had undertaken to write up his father’s notes which had formed the basis of his lectures at UCL on Jurisprudence. Professor Herbert Jolowicz had lectured from very full notes, and he constantly updated them with annotations, so that the collection was “almost incomprehensible except to himself and my mother18”. After Tony’s mother had retyped the whole manuscript, he worked it up into a delightful and readable book, updating it with new citations to 196319. One notable omission, which he mentioned to me, and was discussed in his Preface was the (now) famous The Concept of Law by Hart20. He said that his father would have mentioned it in his lectures, had he lived, but he felt it inappropriate to discuss a book that had not appeared at the time of his death. He also said, self-deprecatingly, that the omission was partly due to his own laziness.
Tony had tried to make the book readable by not breaking it into a series of lectures, but he admitted that it had come in for “a lot of criticism for being too elementary”, and that this may have been one reason why it never appeared in a second addition. However, he also felt that in the interim, attitudes to jurisprudence had altered significantly and that “modern jurisprudence teaching is not .....about what other people think”. “They [modern teachers] don’t care whether the young men know about Kelsen21 or whoever”, which is one of the strengths of the book. It is not a trend of which he approves: “I think [it] is a mistake.”
Another topic with which Professor Jolowicz became involved early in his academic career, and which occupied much of his time for nearly a decade, was the Law of Tort. In the early 60s, Glanville Williams22 (then a Reader at Cambridge) suggested to Tony that he should edit the next edition of Professor Winfield’s23 book On Tort24.
Winfield’s text had been inspirational to Tony during his undergraduate years, but he decided that the time had come to re-order the topics in the famous book and to employ a different method. In the end, little remained of Winfield’s original text, although he tried to retain phrases and examples that he particularly enjoyed. He quoted one such example from the section on libel that worked hard to keep in: “If you have said that a man did not have the manners fit for a pig, you did not make an adequate apology by saying he did.”
Authorship suggests that it was a collaborative project with T Ellis Lewis25, who was then both lecturer in law and Librarian at the Squire Law Library26, but although Tony was very fond of “...dear old Ellis Lewis...a lovely man, the nearest thing to a saint I think I ever met..”, Ellis Lewis’s involvement complicated matters because “he got terribly fussy” and was wont to become bogged down in the detail of cases that differed in minutiae. As a consequence, to re-write what was essentially a student text, Tony had to do most of the work. He threw himself into the task because the issues involved the type of practical problems of Common Law with which he had been involved years earlier in the hurly burly of legal practice - contract, industrial accident cases, statutory liabilities etc - and it gave him a “good solid job to do”. This was in contrast to some of his teaching at the time, which could very be mundane: “there were [some] awful subjects in those days [for instance] the English Legal System, which was boring to the Nth degree. I mean, you knew how many judges in the King’s Bench Division there were, or you didn’t - it didn’t matter very much...”
One aspect of his discourses on tort produced an amusing anecdote, which belied serious legal issues and their telling illustrated a combination of wit and sagacity that underlay many of Professor Jolowicz’s answers to my questions. He was drawing the distinction between judges taking judicial notice, and their using specialist knowledge to help decide cases. It arose from the time when he was acting as one of the General Reporters for the International Academy of Comparative Law27. “One of the people at the conference got up at the discussion, he said "I’m a judge in Adelaide, now I’d like to know everybody’s thinking about an actual case which I decided. It was a hot evening and two adjoining houses, people having meals outside, and the plaintiff in this case complains of himself and his guests having been stung, by a number of bees which flew out from the defendant’s beehives. This was the case, said the judge. “I happen to be an enthusiastic amateur beekeeper and I know that bees don’t fly at night, and ....it was clear to me that his claim for damages is all made up. What shall I do? There were no expert witnesses and no evidence. I said, “I found for the defendant".
Nevertheless, after several years Professor Jolowicz "got bored" with tort, and although he contributed several chapters on his own, and one with Mr Mickey Dias, to various editions of Clerk & Lindsell on Tort28, his writings henceforth concentrated on the more procedural and comparative aspects of civil law.
When we discussed Professor Jolowicz’s other written works, a wide variety of topics emerged, but one theme that has exercised his attentions for many years has been a concern about the overall role of civil litigation in the legal system. His views may be found in his recent paper "Civil litigation: what is it for?"29
As Professor Jolowicz sees it, part of the problem is that one of the judge’s purposes may be to arrive at a just resolution of the dispute and that this may coincide with a purpose envisaged by the State. It is not the court’s role to decide which of the parties' case is objectively correct, as is emphasised by the House of Lords in Air Canada v. Secretary of State for Trade30. The essence of the decision is that the resolution of the parties’ dispute must be achieved through the correct application of the procedural rules. It is not the court’s task to search for the truth on its own behalf.
Since the decision in Air Canada, substantial changes have been introduced into English procedural law, especially in the field of case management, and as with earlier changes in the French law, the judge is possessed of a substantial volume of information concerning the facts behind the dispute well in advance of the actual hearing of the case. He is not restricted to the approach to the facts put forward by the parties. He is in a position to look further and is not prevented from pursuing a certain level of enquiry. This may be contrary to the classical adversary approach as typical of pure dispute resolution, but as the new judges - for whom case management is familiar the understanding will be that the court is bound to seek the best approximation to the truth. Nothing less is appropriate to the role and dignity of the court as will be consistent with the wishes of the judge.
His concern for such fundamental issues and the need for legal reform showed up as early as his revision of Winfield’s book, where in the Preface to the 7th edition (1963 p.viii) he highlighted the fact that although he quoted Winfield’s “famous definition of tortious liability” he was “compelled to draw the reader’s attention to its deficiencies...” and that it did not even “....achieve the limited purpose of distinguishing the Law of Tort from other branches of the law.” He used his membership of the SPTL to take this matter further, and in 1968 a paper he had written for the Society “on the subject of the division and classification of the law” was circulated to the membership. The wide range of views engendered, particularly from members of the Law Commission, persuaded him that there was scope for a joint seminar between the SPTL and the Law Commissions of England and Scotland. He duly organised a meeting, which took place in Birmingham in 1969. Professor Jolowicz edited the resulting book31 and wrote a chapter entitled “Fact based classifications of law”.
The purpose of the seminar was to prepare the ground for “an overhaul of our conventional divisions of the law...to get away from those divisions or at least to subject them to careful and critical scrutiny if the purposes of the Law Commission, as defined in the Act of 1965, were to be achieved.” Sadly, in the event, “...nothing’s come of that...nothing at all.”
As Professor Jolowicz saw it “If you want to reform the law, you need to know what you’re reforming..”, and this mantra remained an issue in most of his later writings over the next forty years. In a nutshell, success in reforming civil law has foundered on “...people asking the wrong questions..”, and in our discussion of the 1970 book, he illustrated his dissatisfaction by citing the way that tort handles the issues of fault and liability. Mentioning the famous Donoghue v Stevenson case and how under English Law it would be seen as an issue of product liability, predominantly tort, he contrasted this with the way it would been considered until recently under contract law in France. He thought it “ridiculous” that in cases where there is a complex chain of events, the search for “fault” on someone’s behalf might well result in there being no liability and hence no route for compensation. Professor Jolowicz is a strong advocate of analysing the issue by seeking to identify who bears the risk, as companies invariably carry insurance these days.
Legal reforms that have been implemented over the last few years have not met with his wholehearted approval, and we talked about two in particular events on which he was both forthright and dismissive. The first was the implementation of the Woolf Report32, and the other the setting up of a new Supreme Court.
Professor Jolowicz commented extensively in his 2000 book On Civil Procedure33 and in his 1996 paper34 on the various ramifications and (unintended) results of Lord Woolf’s report. Although Woolf expressly stated that his reforms were designed to preserve the adversary system, Professor Jolowicz concluded that when they were ultimately implemented, however, their authors’ intentions had “gone down the drain”. For one so concerned with the great costs entailed in cases not solely involving actions between wealthy, equally well-balanced corporations, such an outcome was greeted by him with wry satisfaction. But not so on the issues of the new Supreme Court: Professor Jolowicz dismissed both its underlying raison d’etre (“it won’t make any difference”) and the cost (“immense”) in one word - “madness”.
College & Faculty. A further thread that ran through all our conversations was Professor Jolowicz’s great affection and deep respect for the Cambridge College system and milieu they provide for the undergraduates and Fellows. He chose to live his life as a Fellow of Trinity College in his converted farm house a few miles outside the city, but his more than sixty year’s (1948-2009) association with the College and its fraternity strongly influenced his scholastic ethos and his career - it played a “great part...it wasn’t only a career in the university and faculty, but very much one at Trinity College”. His undergraduate and early lecturing career coincided with the Vice-Mastership of Trinity being in the hands of one of his father’s contemporaries - Harry Hollond35, who was also the Rouse Ball Professor at the time. Despite being married, Hollond lived in college36, and although Tony took none of his courses, he considered him a remarkable man and a “great force in the college...[although] he wasn’t a great scholar, published practically nothing. ” Hollond had two great strengths: his great propensity for telling the truth, even if this posed a “menace in some ways”; and his gift for administration. In the latter capacity, Professor Jolowicz considered Harry Hollond to have been “the architect of the Faculty [of Law] as we know it”, and he recalled also how as Vice-Master he managed to “wangle” a relaxation in the rules, allowing the hard-pressed law tutors some lee-way in the number of supervisions they had to undertake weekly in the college. Professor Jolowicz was very grateful for this intervention - “bless his heart.”
Professor Jolowicz himself later joined the council at Trinity, and had the opportunity to learn from another master of administration, the incomparable Lord Richard Austen “Rab” Butler37, popularly known as “the best Prime Minister Britain never had”. The Conservative party’s loss was Trinity’s gain, and when Butler retired from politics in 1965 he became Master of Trinity College, where he remained from 1965-78. His tenure coincided with the nation-wide student unrest of the early 70s, and Professor Jolowicz believes that Rab saved the college from an “awful lot....of serious trouble”. Butler’s style was inclusive, and he invited everyone who had any connections with the college (“from the lowest bedmakers and cleaners to Fellows”) to two meetings in the College Hall. All the furniture was pushed to one side and Butler, the chairman sat, imposingly at the head table with a microphone “like a great Buddha”. Professor Jolowicz admitted that he feared the worst - some sort of chaotic disaster, where impassioned speeches would be made and motions proposed in a manner with which the College could not control, with the result that it appeared impotent. But it did not happen - Butler, by force of his somewhat awkward, but dignified personality, held sway. “ He was gauche, he made the most dreadful speeches, terribly bad speaker and he would say the most extraordinary things.... I don’t know how he did it, more or less single-handed. He got us through that period with no problems – remarkable.”
One incident during the meeting sticks in Professor Jolowicz’s mind: “a young man ran up the body of the hall, and grabbed the microphone from the Master’s desk - Rab didn’t turn a hair. I still don’t know how he did it. He said, ‘I’m afraid (he had very sort-of slurred speech), I’m afraid you can’t do that. You see, I’m Chairman of this meeting.’ And the young man didn’t say a word, he turned tail and walked sedately back to his seat and sat down.”
Professor Jolowicz said Butler’s advice for dealing with the young men of the Student Affairs Committee was “...let them come to the Council at 12 o’clock, not before, and at 1 o’clock, you take them away and give them a bloody good lunch. That’s the way to keep them happy.” His diplomatic skills produced results and Professor Jolowicz looked back on Rab’s time at Trinity as a great success: “he was a very good Master”, and quoted to me Mr Tony Weir’s38 summing up of Butler’s time at Trinity as “for thirteen years we had amongst us a slippered duke, and we loved it.”
Professor Jolowicz made some interesting observations of the changing financial fortunes of the Faculty over the years. Replying to my prompting that the Faculty in recent times has been relatively well-funded, he gave two examples from the past when he had been Faculty Secretary, that this had definitely not been so. Under the chairmanship of Professor Jennings39, he recalled how he had been asked to approach the General Board over the matter of Faculty lunchtime meetings to pay for “a glass of beer and a sandwich” Their response was “meanness .....there was absolutely no way, no way they would do that. I went to see, I can’t remember who, and he said they’d only done this sort of thing once....[in relation to] the Faculty of Divinity - if the Faculty Board went on after 5 o’clock in the afternoon, the Faculty Board were allowed to spend one penny per head at these meeting to have a cup of tea. They didn’t go in for that sort of thing.”
He recalled, again during his tenure as Secretary, that the Faculty was told that it “might spend some relatively small amount of money on a [Faculty] computer...” Later, when he discussed the matter with Alec Broers, who was then a Fellow at Trinity, it transpired that Sir Alec had “had on his personal desk, a computer, which had cost the university to supply him ...several times more than the amount that we had been allowed for the entire Faculty.” Professor Jolowicz admitted that he never did understand the mysteries of funding, even when he was later Faculty Chairman (1982-84).
Finally, Professor Jolowicz added some of his own anecdotes to the mythology that has grown up around the excesses and idiosyncrasies associated with the design and occupation of Sir Norman Foster’s legacy to the university - the West Road combined Faculty and Squire Law Library complex, into which they decamped from the Old Schools building in 1995 (two years after he had officially retired).
He recalled the official opening by the Queen and Prince Philip when he discovered that the water was turned off at the mains. “ So I thought I had better report this to one of the supervisors and he said, ‘Yes, I know that, we’ve had an awful lot of trouble with the plumbing and we don’t want any floods when the Queen is here, so we’ve turned the water off at the mains.’ If anything had ever overcome Her Majesty, she would had to have gone next door.”
In a similar vein, he said that later the Faculty had “a party to say au revoir to somebody, in the evening and Poppy and I were going.” On arriving “we found everybody moving across from the Law building into the History building, and wondered what was going on. The story was that the mains power failed, no electricity. This place is so dependent on electricity there is or was, a generator, emergency generator, which then started up for the first time in the history of the building, … but it was then found that the exhaust from this generator had pumped through all the air conditioning systems. So the whole building was filled with poisonous vapour and had to be evacuated.”
Such incidents were “ because Foster didn’t obviously pay essential supervision” and he emphasised this by saying that “in the early days, I went to work in the library and it had got dark and all the lights came on somewhere else. There was a table lamp very near to where I was, but the lights didn’t work on my table so I spoke to Peter Zawada40 and he said, ‘Well, no, I’m afraid we can’t do anything about that. If we put anymore of these lights on, the whole place will blackout.’ Despite this seeming lack of attention to detail, Professor Jolowicz marvelled at the cost of the fittings: “over £80,000 for library tables” and “£80 for wastepaper baskets” - it was a far cry from “a penny a head for a cup of tea” twenty years earlier!
Despite his obvious dismay at these modern extravagances, his stories were recounted with a large element of wry humour and no malice, and this was a overriding feature of our conversations. Professor Tony Jolowicz and his wife Poppy, an academic in her own right, were very kind to me during my visits to their lovely rural home. I wish to thank them for their hospitality during our interviews. Both still regularly visit the Faculty and the Squire Law Library, but Professor Jolowicz was never happy with the move away from the Old Schools in the centre of the city. For him the glass and steel of Law’s Foster-designed new home does not fit comfortably with his ideal of the Cambridge way, with which he is so in tune.
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- 1 1897-1960. Eminent International Law scholar and jurist.
- 2 Professor of Comparative Law at Cambridge 1930-1941.
- 3 1883-1964.
- 4 This was his brother-in-law’s college. He died in 1953, a year before Herbert Jolowicz, who was by then Regius Professor at Oxford.
- 5 Herbert Jolowicz was the author of the classic text Historical Introduction to the Study of Roman Law, 1st Edit 1932, (2nd Edit 1952) . A 3rd edition appeared by Barry Nicholas, Professor of Comparative Law Oxford (1971-78) in 1972, CUP.
- 6 Gutteridge had retired in1941, and at that time had about five years to live.
- 7 Later Dean, and Regius Professor of Divinity (1952-58).
- 8 Charles John Hamson had been appointed Professor of Comparative Law two years earlier (1953-73).
- 9 Hurstcote, in Cumnor a village just outside Oxford.
- 10 One of the duties, it later transpired, was to accompany the Vice-Chancellor to the coronation of Queen Elizabeth II in Westminster Abbey (2nd June 1953).
- 11 The Right Honorable Gordon Slynn, Baron Slynn of Hadley, GBE, PC, QC, Trinity College, specialised in European and International Law, and was a former judge of the European Court of Justice and Lord of Appeal in Ordinary. He died in April 2009; Lord Richard Rashleigh Folliott Scott, Baron of Foscote, Trinity College. Was made Lord of Appeal in Ordinary 2000; and Lord Robert Walker of Gestingthorpe, Trinity College. Was a High Court Judge 1994, Lord Justice of Appeal 1997, and a Law Lord since 2002.
- 12 In the cases of In Re Norway. (Nos.1 & 2) (1989), HL 16/2/89, and White v Jones  1 All ER 691, HL. The former was on appeal against refusal to order the examination of witnesses living in England for use in Norwegian tax proceedings. The witnesses were bankers who did not wish to breach their obligation of confidentiality and the Court of Appeal had decided there was no jurisdiction because the proceedings were concerned with the enforcement of Norwegian revenue laws & were outside the expression "civil or commercial matter" in s.9 (1) Evidence(Proceedings in Other Jurisdictions)Act 1975. In Norway the proceedings would be classified as proceedings in a civil matter, and such a construction did not involve enforcement of Norwegian revenue laws in UK. Appeal was allowed. In the latter case, the Lords held that a solicitor retained to draw up a will, but who fails to do so before the testator's sudden death, may owe a duty in tort to disappointed beneficiaries, with the result that they can claim the value of their lost legacies from the solicitor if they can establish fault.
- 13 1905-87.
- 14 1917-1982. Professor of International Law 1969-1982.
- 15 1911-1997. Glanville Llewelyn Williams, Rouse Ball Professor of English Law 1968-78.
- 16 1934- Professor of Law 1995-2001.
- 17 1897-1983. Professor F. H. Lawson, Professor of Comparative Law Oxford, Brasenose College.
- 18 Ruby Victoria, neé Wagner.
- 19 Lectures on Jurisprudence, Jolowicz H. F. & Jolowicz J. A. University of London, Athlone Press, 391pp.
- 20 1961. Herbert Lionel Adolphus Hart, (1907-1992). Professor of Jurisprudence Oxford University. He developed on the notion of legal positivism.
- 21 Hans Kelsen (1881-1973). Austrian jurist and philospher who wrote the influential text Pure Theory of Law (1934). His ‘pure’ theory of law was supposed to avoid reductionism of any kind.
- 22 Glanville Llewelyn Williams (1911-1997). Rouse Ball Professor in English Law 1968-78.
- 23 Professor Sir Percy Henry Winfield (1878-1953), inaugural Rouse Ball Professor in English Law 1928-1943.
- 24 Its publication history was: 1st - 5th Eds (1937, 1943, 1946, 1948 1950) by Winfield, 6th Ed (1954) by Ellis Lewis; 7th - 8th Eds (1963, 1967) by Jolowicz & Ellis Lewis Winfield on Tort: and 9th Ed (1971) by Jolowicz et al., Winfield and Jolowicz on Tort.
- 25 T. Ellis Lewis (1900-1978), Librarian, Squire Law Library 1931-1968. PhD in Law (Gonville & Caius) 1927 (the first Law PhD at Cambridge).
- 26 Prior to 1959 the post of Librarian was held by a member of the teaching staff.
- 27 1974. Ninth Congress of the International Academy of Comparative Law, Teheran 1974.
- 28 For instance in the 14th Ed (1975) he wrote on: parties, vicarious liability, death, remedy by injunction, and discharge of torts; and with Mickey Dias on damage.
- 29 Cambridge Law Journal, 67(3), 508-520.
- 30  2 A.C. 394.
- 31 The Division and Classification of the Law, 1970, Butterworths.
- 32 Fn 35.
- 33 Cambridge University Press, 425pp.
- 34 “The Woolf Report and the adversary system”, Civil Justice Quarterly, 15, 183.
- 35 1888-1974. Henry Arthur Hollond, Rouse Ball Professor of English Law, 1943-50, Dean (1920-51) and Vice-Master of Trinity (1951-55).
- 36 His formidable wife Marjorie was Bursar at Girton, where she resided.
- 37 1902-1982. Baron Butler of Saffron Walden, Chancellor of the Exchequer, Home Secretary and Foreign Secretary, but never achieved—and was twice passed over for—the Premiership. After Trinity, Lord Butler became the inaugural Chancellor of the University of Essex 1966-82.
- 38 Reader in Law, author of Economic Torts (Clarendon Press) 1997.
- 39 1913-2004, Professor Sir Robert Yewdall Jennings. Whewell Professor of International Law, University of Cambridge 1955-81.
- 40 Deputy Librarian and Head of Reader Services, Squire Law Library.