IF YOU want to sell your soul, a lawyer is a good person to ask for advice. A young man from Jiaxing, near Shanghai, failed to take legal advice before putting up his soul for sale on an online auction site. The posting was removed by the auctioneer, and the seller was told that the advert will be reinstated only if he can produce written permission for the sale from “a higher authority”.

English law would condemn the intended transaction, but not for that reason. The principle nemo dat quod non habet (nobody gives what he does not have) would not defeat the sale because a person can be seen, like Marlowe’s Doctor Faustus, to do with his soul what he pleases. Not even judges need to ask for permission. Mr Justice Hales, who committed suicide, is recorded in a 1562 law report as having been “seduced by the art of the devil”. A judicial-satanic consortium made, presumably, without authorisation. The soul sale today might fail for want of the mutual exchange of value, technically known as consideration. To be enforceable, a deal need not be fair but each side’s consideration must be recognisably of value. Courts can precisely evaluate many things, from a thumb to 30 years of life, but the worth of a soul is arguably beyond the jurisdiction of the Bench.

WORDS are the form and the force of law. A recent prediction that English will comprise a million words by the summer is welcome news in law. Juridically, the English language has become the best instrument box in the world. The word “law” comes from an Old Icelandic word for “something laid or fixed” although law’s lexicon, like the general one, is unfixed and constantly developing. Every year some words become obsolete while others are born. So “ rixle”, meaning to rule, has gone but a “clickwrap”, a mouse-made contract, is arriving. New words usually get a frosty greeting in law. Bentham’s neologisms, such as “codify” and “international” took decades to thaw. English has evolved an extraordinarily eclectic vocabulary. Whereas French offers about 100,000 words, English, according to recently published data from the Global Language Monitor, offers 988,968 words including word combinations, and vocabulary used in electronic and broadcast media. Lawyers and judges often struggle against the accusation that they use a superfluity of words. Chief Baron Kelly once told a witness: “You must give me an answer, in the fewest possible words of which you are capable . . .” That, though, was his opening phrase in a 121-word sentence of instruction.

THE new role of Lord Chief Justice, as head of the judiciary in England and Wales, is of historic importance. As Lord Phillips of Worth Matravers recently noted, the constitutional reforms “give transparent effect to the doctrine of the separation of powers”. As judges are the constitutional check on any politician whose policies offend existing law, it is desirable that the judiciary should not be headed by a member of the Cabinet. This safeguard inspires public confidence in the constitution. Today, political and judicial careers are immiscible. Historically, however, some politicians were given judicial office. In 1895 Lord Salisbury, the Prime Minister, wrote to the Lord Chancellor, saying that there is “no clearer statute in the unwritten law than the rule that party claims should always weigh heavily in the disposal of the highest appointments”. Lord Halsbury’s appointments to the High Court included six men who were Tory MPs when appointed. When he recommended Lord Lindley to be Master of the Rolls, one critic expressed dismay because “Lindley has nothing to recommend him except merit”.

The author is Professor of Law, and Director of the Centre for Law, the Open University gary.slapper@thetimes.co.uk

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