Perhaps I experienced this sense of frustration because I embarked upon reading Manderson after putting down one of the best books I have read in a long time: the second of Victor Klemperer’s two-volume diary of life as a Jewish German in Nazi Germany (To the Bitter End, Phoenix, 2000). Like Manderson, Klemperer was a scholar of aesthetics. He was knowledgeable about literature and music. He was also a student of the use and misuse of language and its deployment in the service of the law and the state. Klemperer kept himself going, amidst the rising horror of persecution, humiliation, and hunger, by maintaining a daily record of the legalised brutality to which he and his ‘Aryan’ wife were subjected. He noted down the special language in which the Third Reich dressed up its gangster-like propaganda and violence. As early as 1933, Klemperer planned a book on LTI (‘Lingua Tertii Imperii’ – Language of the Third Reich) in which the distortions of language in the service of the new state would be recorded and commented upon. His book was eventually published in German in 1947 as Notebook of a Philologist – an English translation has been promised. Klemperer’s war diaries are not, of course, books of legal analysis; but they are expressed most simply and directly. This is not the style of Manderson. The result is that his ideas are sometimes hard to fathom and to separate from the insights of the countless authors whom he quotes and footnotes – many of them unknown to this reviewer.

Stone had the same tendency to display his voracious reading by dropping the names of hundreds of authors and by writing footnotes often as long, or longer, than the text of the page. Manderson has banished his copious footnotes to the back of his book, so we are spared that distraction. But, as with Stone, Manderson reads widely, far beyond the usual texts on the shelf of the average Australian legal philosopher. I only wish that, for once, he had forgotten about the wealth of his sources and had written down in a simpler way his own big concepts. I say this because I feel sure that his ideas are an important and novel contribution to legal philosophy that would have a much bigger impact if presented in a simpler fashion.

At the very end of the book, Manderson sums up what he has been getting at. ‘Justice,’ he states, ‘is always “poetic”, always expressive and symbolic.’ To suggest this is not to surrender to emotion and feeling. The aesthetic sense is itself connected with order and form, predictability, and pattern. From this comparatively simple idea, Manderson constructs a lengthy metaphor which is represented by this book. He uses various musical forms as signatures for a succession of chapters that examine particular topics in legal writing and learning – starting with the Prelude, moving through the Fugue and Motet, ending with Variations on a Theme and a Quartet. In these chapters, he demonstrates repeatedly how words matter – how law and justice emerge from the language in which law is explained and employed by judges and others with legal power. He shows to any who might still doubt the importance of rhetoric, similes, and other figures of speech the images and symbols regularly deployed in judicial and other official decision-making. He dips into the substantial writing on law and literature. And he takes a passing shot at the growing law and economics movement:

‘Law and economics’ assumes human beings to be fundamentally rational actors with economic desires. Such an impoverished understanding of human motivation and meaning explicitly eliminates the aesthetic dimension. While ‘law and literature’ has at times a weak understanding of law, ‘law and economics’ has a weak understanding of human beings.

Empiricists might question these broad generalisations. Other leading scholars of the law (whom Manderson acknowledges, such as Ronald Dworkin) see a line of judicial precedents as a kind of narrative, a form of ‘chain novel’, each chapter of which has a different author. The role of each judge (who may be an extremely knowledgeable exponent of the law) is to act like a ‘literary critic, teasing out the various dimensions of value in a complete play or poem, to read the previous instalments in a way which makes sense of all (or of most of them) and to write a new section in that spirit.’ According to Manderson, the narrative of the law goes on, from precedent to precedent, resembling, as he puts it, ‘not so much a novel as a soap opera’. Yet that is not to say that the contributors to the legal ‘soap opera’ have a weak understanding of law. It is simply to acknowledge the inescapable imprecision of law and the fact that soap operas are usually popular precisely because they have resonance with real life. As for the law and economics movement, its sophisticated exponents accept that some elements of a legal system, like the impartial judge, are beyond price. Lose that, and the whole edifice of the rule of law comes tumbling down.

Manderson’s book is at its best when he sets aside for a moment all the name-dropping and the repeated use of horrible words of little current use (‘hermeneutic’, ‘metonymic’, and ‘prosopopoeia’ are only three) and speaks directly about his thesis. This is where he shows, quite powerfully, the interaction of the way law is expressed and its content as an approximation of contemporary notions of justice.

He does this, for example, in his own treatment of Nazism, which deployed the aesthetics of ‘massification of gestures – of salutes and swastikas and blue-eyed blond youths multiplied division upon division’ at the same time as it was murdering millions of Jews, gypsies, communists, gays, and others who did not fit into Hitler’s ideas of an aesthetic and pure ‘Aryan’ state. He does it also in his critical examination of the legal ‘War on Drugs’, as expressed in the language of United States and Australian judges and officials. He does it best of all in a chapter called ‘Requiem: Aesthetic Influences on the Death Penalty’. In this, he takes to pieces the United States’ court decisions on the practice of extermination as the natural end point of the great edifice of the criminal justice. Manderson shows how the substitution of lethal injections in most parts of the union (in all but two of the twenty-one states that preserve capital punishment) is part of an attempt to make premeditated killing by state officials more appealing because it is ‘medicalyzed’. ‘Death,’ says Manderson of the killing technique that put Timothy McVeigh into his dateless night, coalesces with mere anaesthesia. ‘The condemned man is not killed but put to sleep.’ The curtains part and then they close again – just like in a hospital or crematorium. The image itself is reassuring and is designed to put to sleep not only McVeigh but a great nation’s moral sensibility.

There are various little mistakes, hardly worth mentioning. The new generation, not trained in Latin, must be very careful in using it to get the grammar right. The singular of the word is ‘indicium’ not ‘indicia’ – that is, assuming the word has not now become an English noun.

On the other hand, I cannot read music and obviously Manderson can. He has included segments of composition in his text to illustrate the musical form with which he introduces his chapters. It has no apparent relevance apart from its use as a graphic. But the idea made me ponder the notion of classifying Australia’s judges – past and present – in terms of the composer whose writings theirs most resembles. Which is our Bach, restrained and cerebral? Who is our Brahms, lush and romantic? Who writes like Mahler, cacophonous and eclectic? And is this an idea even worth bothering about – or just another crazy academic concept, unworthy of serious time?

So I finished this book with mixed feelings. It is irritating in parts, but then so was much of Julius Stone’s writing. It is original in concept and execution. And Manderson’s students praise him to the stars as a brilliant lecturer. He has now published his bold academic thesis. What we need is a second book from him in which he abandons scholarly conventions and tells us, simply, what he is on about. Great ideas are invariably simple. I have a worrying suspicion that Manderson has some very important concepts about law to convey to the distracted and busy practitioners of, and thinkers about, the discipline. This book is not for them. But the author is young and he has lots of books of legal music in him.