Sunday, 17 June 2012

So whose law is it anyway?


The Telegraph chose to feature the (not entirely unsurprising) revelation that the decisions of judges working in immigration courts often favour those appealing rather than the immigrations services. I’m with the gut of the nation here by thinking that the “family life” defence in human rights law is rather over-played - it seems the lawyers aren't.

However, the article led to a little twitter interchange that ended with:

And really, magistrates are useless (kept as a cost-saving measure) & juries are biased, unfair & easily mislead.

I can only conclude that the comment reflected a view that judge and lawyer led law is somehow fairer, more equal or more open.

So whose law is it then? If magistrates are useless and juries biased must we assume that judges are without fault and lawyers exemplars of human perfection. More importantly we arrive at the point where the law is placed beyond democratic control.  At the moment there is an idea that citizens have a role and duty in the administration of the law.

I have no issue with judicial independence but do not believe that lawyers (and wrongly all judges are now lawyers) are any more infallible than the Pope. Like all human’s they make mistakes and allow prejudice to cloud judgement. Worse – and this is the great lawyers failing – too many of their assumptions and arguments are founded entirely on appeal to authority rather than consideration of the facts. What Lord Justice Bigot said in 1875 is too often of greater significance to our judges than the facts and certainly than the application of common sense.

Was I asked an opinion as to the organisation of the law; it would start with wanting more democracy. The approval of judicial appointments by Parliament, more jury trials and a wider role for magistrates – for example in the family courts - and I would abolish the privileges of barristers. There would be no secret courts and no aspect of the administration of justice unwatched by representatives of the public. 

In the end, the law is not some deity to be served by a collection of bewigged priests and acolytes. The law is not something so occult as to be both frightening and intimidating to the ordinary citizen. Yet that is what we have – a collection of wealthy, powerful people polishing the temples of law, speaking a language understood by only a few and dismissing the concerns of the public as bigotry or ignorance.

If other aspects of life benefit from a healthy dose of openness and democracy, I see no reason why the law shouldn’t too. But we’re up against the “we know better than the public” view that prevails – here’s that tweeter, Matt, again:

'Modern' (post-Blackstone) common law is certainly not 'the people's law', and nor should it be.



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