The Way We Lived Then: The Legal Profession and the 19th-Century Novel*

This article contributes to the use of the novel as an interpretive resource in legal and social history. It focuses on an issue which appears to have been neglected amid the rich skeins of recent debate. Particularly in relation to criminal defence, from the debate in the run-up to the advent of general legal representation in the Prisoners’ Counsel Act 1836 through to James Fitzjames Stephen’s interventions in defence of lawyers in the 1850s and 1860s, the ethical standards of advocacy and of legal representation more generally were a salient preoccupation of the novel, as of contemporary public debate in newspapers and reviews. Given the significant expansion of the legal profession, and the gradual changes in its organisation, this was hardly surprising. But amid the illuminating interpretation of this mutual engagement between (the overlapping categories of) novelists, journalists, essayists and lawyers, little has been done by way of contextualising this debate within the development of the professions, and of professionalism more generally, in 19 * This article is adapted from the Julius Stone Address presented by Nicola Lacey on Tuesday 30 November 2010. century Britain. As I shall try to show, an understanding of the struggle to come to terms with the extraordinary — yet incomplete — rise of professionalism, both in and beyond law, can be helpful in explaining the form which literary representations of law took, and the fact that certain kinds of lawyer and of legal practice were singled out for particular literary attention and indeed opprobrium. In asking how attitudes to professionalisation affected the literary treatment of law, and what the developing treatment of legal themes in the novel can tell us about contemporary understandings of professionalism and of what justified and legitimated it, I will ** Senior Research Fellow, All Souls College Oxford: Professor of Criminal Law and Legal Theory, University of Oxford. I am grateful to Zelia Gallo for exemplary research assistance; to participants at a seminar following the Julius Stone Lecture 2010 at the University of Sydney Faculty of Law for stimulating discussion and helpful feedback on an earlier draft of this paper; and to three anonymous readers for the Sydney Law Review for their constructive comments. 600 SYDNEY LAW REVIEW [VOL 33:599 focus in particular on the novels of Anthony Trollope, while drawing examples and analogies from the work of other authors.